On rule to show cause why writ of mandamus should not issue.
For the relators, Ward Kremer, Harry Cassman and Emerson Richards.
For the respondents, Durand, Ivins & Carton (James D. Carton, Jr., of counsel), and Bilder, Bilder & Kaufman (Samuel M. Kaufman, of counsel).
Before Justice Perskie, in chambers, pursuant to statute.
PERSKIE, J. Many are the steps leading to the instant application in this cause. It will serve no special purpose to trace them. Suffice it to observe, in most general terms (in the interest of greater clarity), that on March 7th, 1935, the city of Asbury Park, because of its financial difficulties, was placed under the control of the Municipal Finance Commission of the State of New Jersey. R.S. 52:27-1, et seq.
Thereafter, on January 4th, 1936, in pursuance of a petition filed, by creditors for themselves and others similarly situated, for the approval of a plan of adjustment or composition of the obligations of the city, I assumed jurisdiction and ordered the filing of the petition in the office of the clerk of the Supreme Court. R.S. 52:27-34. Many hearings and conferences followed to the end of determining whether the proposed plan should be approved. As a result of these hearings and conferences a plan for the adjustment or composition of the city's debt was adopted. That plan received the approval of the necessary percentage (eighty-five per cent.) of the creditors, the Municipal Finance Commission, and the court.
Finally, the city refunded its indebtedness in accordance with the plan as approved. It then made application to be relieved from the supervision of the Municipal Finance Commission of the state. After publication of notice of that application and service thereof on all parties in interest, I did, on December 10th, 1938, sign an order in which it was ordered (1) that the Municipal Finance Commission of the State of New Jersey "cease to function in Asbury Park" (in other words, an end was put to its jurisdiction over that city); and (2) that the city appropriate in its budget for the year of 1939, as part of its debt service, the sum of $30,168.69 for the payment of the 1930-1932 state school bonds, dated March 8th, 1934, and held by the county of Monmouth.
Pursuant to directions contained in the order of December
10th, 1938, the Municipal Finance Commission ceased to function in Asbury Park and the city made a special appropriation and paid the moneys dues to the county for the bonds.
Following the order of December 10th, 1938, the duly elected governing officials of the city retook possession, control and operation of its beach and beach property which was then in possession, control and operation of a beach commission created in pursuance of R.S. 40:55A-1, et seq. The latter, however, refused the demand of the director of public works to surrender or deliver up to the city the moneys and other property, records, leases, &c., pertaining to its control and management of the beach and beach property. Hence this application to compel them to do so.
The refusal on the part of the beach commissioners to comply with the city's demand is, in effect, rested upon the grounds that their existence is the creature of a statute in which there is no provision for a situation such as is here presented, and that, at all events, they are answerable only to the legislature for their conduct. The grounds for the refusal are without merit.
The statute creating the beach commission sets up an autonomous government within the applicable municipality. It vests in the commission, among other things, all the powers theretofore vested and exercised by the governing officials of that municipality in matters relating to management and control of the beach and beach property. By virtue of these powers, I heretofore compelled the governing officials to surrender and deliver up to the beach commissioners the very property and type of chattels which the governing officials now claim. The issue before me is not one relating to disciplinary conduct of the beach commissioners for which they are, of course, answerable to, among others, the legislature. The sole ...