For the prosecutors, Mackay & Mackay and Clyde Christie.
For the defendant, Albert J. Wuytack (James De Turck, on the brief).
Before Justices Trenchard, Daly and Donges.
The opinion of the court was delivered by
DONGES, J. This writ of certiorari brings up an ordinance of the borough of Dumont, repealing a zoning ordinance previously adopted by a 3 to 2 vote of the council.
The first question raised is whether the repealing ordinance was properly adopted inasmuch as the vote thereon was five in favor of repeal and one against adoption of such ordinance.
In the borough of Dumont there are six councilmen and the mayor who, under the statute, constitute the council of
the borough, which is the legislative body. By section 2 of chapter 274 of the laws of 1928, known as the Zoning Enabling act, it is provided that the term "governing body" shall be construed to mean the board or body in each municipality empowered by statute to exercise general legislative power therein. By section 8 of that act it is provided that zoning regulations, limitations and restrictions may be amended, changed, modified or repealed, and the boundary of such districts may be changed by ordinance. It further provides that if twenty per centum or more of the owners in the immediate area to be affected protest against such change, such "amendment shall not become effective except by the favorable vote of three-fourths of all the members of the governing body."
The fact is that the mayor was absent for more than three days at the time of the adoption of the repealing ordinance, being out of the state on account of illness. He notified the president of council in writing of his intended absence, and the president of council was performing the duties of mayor. Five of the six councilmen, including the president of council, voted for the repeal and it is insisted that three-fourths of the council did not vote in favor of such repeal because the three-fourths must be computed upon the basis of the governing body being composed of the mayor and six councilmen, that is to say, upon the basis of seven members, so that six votes were required to constitute three-fourths of the governing body.
There may be some doubt whether repeal of an ordinance is strictly within the terms of the section which requires a three-fourths vote of all the members to render an "amendment" effective, as urged by respondent. However, if prosecutors' view of that question be adopted, for the purpose of passing the repealing ordinance three-fourths of six were all that were required to adopt the ordinance because it is provided in the Borough act, section 23 (Comp. Stat., p. 237, that the mayor shall not vote except to give the ...