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we do not judicially know; although it seems quite probable that the legislature was unable to perceive any good reason why the receipts of these designated offices, which, ever since the adoption of the constitution of 1844, and up to 1898, had been ample to meet all expenditures, and to fully compensate the incumbents as well (for it is not publicly known that any of the incumbents during that period were unwillingly forced into offices which they did not desire to hold because of the lack of compensation) should suddenly, after the adoption of the act of 1898, become insufficient for the purpose. Certainly a change in the amount of the business does not explain it; for as the volume of business increases, the amount of the receipts increases correspondingly, and when the volume decreases, necessary expenses decrease in a like proportion.

This is not a matter, however, with which we are concerned. The question before us is whether the legislative purpose is expressed in the title of the act, and whether it is single. The title has already been recited. It declares that the legislation relates to the fees of certain enumerated officers in first class counties. The words in the last clause of the title "and providing salaries for such officers" neither indicate an additional purpose, nor do they limit or expand that already expressed. The salary of the incumbent, and the compensation to be paid to his assistants, are not foreign to the object expressed in the words "an act respecting the fees of," &c., for it is expressly declared in the body of the act that these fees are to be paid into the county treasury, there to be kept in a separate fund, and to be applied from time to time (as may be necessary) to the payment of the specified expenses. On the contrary, they are manifestly cognate to it, and, therefore, were not required to be expressly mentioned in the title. Quigley v. Lehigh Valley R. R. Co., 80 N. J. L. 486, 492, and cases cited.

It may be, as counsel contends, that the provision in the body of the act conferring upon the incumbents power to appoint deputies and assistants is not expressed in the title. But this is unimportant. The act merely affirms the existence of a power that had already been granted by earlier statutes, and its excision would still leave the legislation intact.

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Except in the respect just indicated, the legislation, as it now stands, embraces a single object, and that object is expressed in the title. The relator, therefore, can take nothing by this particular attack upon its constitutionality.

It is further argued that the amendment and the supplement of 1917 violate that provision of the constitution which forbids the passing of any local or special law regulating the internal affairs of counties. We consider, however, that this question is not an open one. In the case of Board of Freeholders of Hudson County v. Clarke, 65 N. J. L. 271, the Court of Errors and Appeals declared that the statute of 1898 properly classified counties having a population exceeding one hundred and fifty thousand, viz., Hudson and Essex, for the purpose of regulating their internal affairs, and that the fact that the statute applied to these two counties only did not constitute it a local or special law. It being settled, then, that an act which provides for the payment of salaries of certain specified officers in counties of the first class, and the employment of the necessary assistants to transact the business of their offices, and the payment of such assistants for their services, is general in its character, it necessarily follows, we think, that legislation placing a limitation upon the expenditures to be incurred in the running of such offices, and creating a fund out of which those expenses shall be paid, is also general.

It is further argued that the act violates the constitutional provision which prohibits the passing of any special or local law decreasing the percentage or allowance of public officers during the term for which said public officers were elected or appointed. (Article 4, paragraph 7, section 11 of the constitution.) What we have already said is dispositive of this contention, for the constitution does not prohibit a decrease in the salary of a public officer during his term, but only the passing of a special or local law which has that effect. The present legislation being, as we have already declared, general, and not special, the constitutional provision relied on has not been disregarded thereby. We may add that we are not able to appreciate the contention that the effect of this legislation is

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to decrease the salary of Mr. McMahon. His salary remains intact. He is only required to so operate his office that the expenses incurred therefor shall be kept within the fund appropriated to meet them.

The last contention made on behalf of the relator is that the defendants have no right to withhold the payment of the salary due on the 1st of December, 1917, "because they could not determine whether or not the salary of such register, together with the compensation of his deputies and assistants, would exceed the revenues of his office for a year." This proposition seems to us a conspicuous non sequitur. The sole fact to be ascertained by the fiscal officers of the county, when the demand for payment was made on December 1st, was whether there was then in the separate fund placed to the credit of the office of the register of deeds of the county, sufficient money to make the payment. If there was not, then such payment could not be made without violating the supplement of 1917, which, by necessary implication, forbids the payment of the salary of the register out of any funds or moneys of the county except the separate fund which is to be created by the reception of the fees and other emoluments paid into the register's office. If there are not sufficient moneys in the fund at the time when payment is demanded, then such payment cannot be presently made. Whether or not it can be made later will depend upon whether or not, at the end of the annual period for which the register is to be paid (or at any earlier date), there are sufficient moneys in the special fund to meet the demand of the register.

We conclude for the reasons stated that the demurrer should be overruled, and that judgment should be entered for the defendants.

Reinauer v. Hackensack Water Co.

92 N. J. L.

WILLIAM REINAUER, PLAINTIFF, v. HACKENSACK WATER COMPANY, DEFENDANT.

Submitted July 3, 1918-Decided November 12, 1918.

Where an excavation is made in a public highway by a private corporation, for its own use and benefit, the fact that it is made with the consent of the public authorities does not relieve the company from the responsibility to the public of restoring the highway to its permanent normal condition; and it is bound to use reasonable care, during the process of restoration, to see that persons traveling on the highway come to no harm by reason of its transient defective condition.

On defendant's rule to show cause.

Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and TRENCHARD.

For the rule, Edwards & Smith.

Contra, James A. Butler and William J. McFadden.

The opinion of the court was delivered by

GUMMERE, CHIEF JUSTICE. The plaintiff, a boy thirteen years of age, was riding on a two-seated motorcycle driven by another young man. They were traveling on the Hudson county boulevard at night, and, in the darkness, the motorcycle struck a depression which the driver failed to observe, with the result that the plaintiff was thrown off the cycle, his right foot was caught in the rear wheel, and the leg broken above the ankle; the fracture being a compound one. The depression in the road was due to an excavation made therein by the defendant company for the purpose of laying a water pipe under the surface of the highway at that point. The proofs justified the conclusion that, after the pipe had been laid the defendant filled up the opening and caused the earth to be rammed as solidly as possible, leaving this part of the

92 N. J. L.

Reinauer v. Hackensack Water Co.

surface of the highway at its original level. The proofs also showed that it was impossible in refilling a trench opened in a public road to ram the earth so tightly that it would not thereafter sink below its original level, and that it was necessary to fill it up from time to time as subsidence took place. It also appeared that after the work of refilling nothing had been done by the defendant company with relation to the trench, nor were any means adopted by it of warning persons traveling along the highway of the existence of the subsidence. It was left to the jury to determine whether, under these conditions, the defendant company was negligent, and responsible for the injury to the plaintiff. The jury found that it was, and assessed the plaintiff's damages at $2,000.

It also appeared in the case that this excavation was made by the defendant under permission granted to it by the public authorities having charge of this highway; and the first ground upon which we were asked to set aside the verdict is that after the company once restored the highway to its normal condition, it was charged with no further responsibility, and that the duty of taking care of any subsidence which should afterward occur, rested solely upon the public authorities. Assuming that, because this work was done with the consent of the public authorities the burden rested upon them to see that the highway, after the work was done, was maintained in a safe and proper condition, that fact does not, we think, relieve the defendant company from responsibility. The work done by it was for its sole use and benefit. Although it was lawfully done, it was in derogation of the public right, and the burden rested upon it of restoring the highway to its normal condition, and to take care of it, so far as the public rights are concerned, until that restoration was permanent. This being so, the fact that the same duty rested upon the public authorities (if such be the fact) does not affect the primary liability of the company. Brady v. Public Service Ry. Co., 80 N. J. L. 471.

The obligation to make a permanent restoration of the highway being imposed upon the defendant company, it was bound to use reasonable care, during the process of restoration, to

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