On appeal from the Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Vanderbilt, C.J.
[3 NJ Page 74] In December, 1948, the plaintiff, The Union County Park Commission, following its uniform practice since its organization in 1921, by resolution requisitioned the defendant, The Board of Chosen Freeholders of the County of Union, for the sum of $400,000 for capital expenditures for park improvements, such funds to be raised by the issuance of bonds of Union County. The Board of Chosen Freeholders declined to honor the requisition and, after several months of negotiation, offered to issue $200,000 in bonds, an offer that the Park Commission refused to accept. The present action in lieu of a prerogative writ was commenced in March, 1949, by the Park Commission to compel the Board of Chosen Freeholders to take the necessary action prerequisite to the issuance of $400,000 of county bonds and to turn the proceeds over to the plaintiff. The trial judge entered an order requiring the Board of Chosen Freeholders to issue
immediately capital park bonds in the amount of $200,000 and pay over the funds to the Park Commission and directing that the question as to whether or not the other $200,000 should be borrowed should be submitted to the voters of Union County on a referendum at the next general election. From this order an appeal and a cross appeal were taken to the Appellate Division of the Superior Court. The matter now comes before us on our own certification.
The Union County Park Commission was organized in 1921 under the provisions of P.L. 1895, c. 91, after a referendum submitted to the voters of Union County and it is now governed by the provisions of R.S. 40:37-96 to 40:37-174, inclusive. The Act of 1895 authorized the raising of funds by bond issues in the name and on the credit of the county in a sum not exceeding $2,500,000. Thereafter over the years a number of supplements to the 1895 Act were passed by the Legislature authorizing the raising of additional sums through bond issues in varying amounts ranging from $50,000 to $5,000,000. There were twenty of such acts, all saved from repeal at the time of the adoption of the Revised Statutes of 1937 by the provisions of R.S. 40:37-130, ten of which require approval on referendum to the voters before becoming effective, five others requiring no referendum but authorizing the incurrence of indebtedness only if previous sums in prior acts have all been authorized, and the remaining five not requiring referendum and in effect providing a blanket authorization for the borrowing of additional sums up to the amounts therein authorized. It is conceded by both sides that the requisition in question was made under the authority of the five acts last mentioned (which, it is important to reiterate, are not subject to referendum to the voters) and that the requisition here made together with all other requisitions of the Park Commission upon the Board of Chosen Freeholders does not exceed the aggregate sum authorized in the five acts.
Thus, the single issue presented in this case is whether the Board of Chosen Freeholders is under a mandatory obligation to raise funds by borrowing and to issue county bonds to meet the amount or amounts requisitioned by the Park Commission
when such requisitions are within the sums authorized to be spent by statute. The problem is one of applying the pertinent statutes to undisputed facts.
R.S. 40:37-131, the section immediately following the sections dealing with the original authorization of a bond issue of $2,500,000 (R.S. 40:37-129) and saving from repeal the several supplementary statutes authorizing the additional capital funds above referred to (R.S. 40:37-130), provides:
"Such bonds shall be issued in accordance with the provisions of article 1 of chapter 1 of this title (§ 40:1-1 et seq.). The interest and principal of all such bonds issued under the authority of sections 40:37-96 to 40:37-174 of this title shall be the debt or obligation of the county wherein they are issued, and the payment thereof shall be provided for by taxation in the same manner as other debts and obligations of the county."
On referring to R.S. 40:1-1 et seq., it will be found that these sections set forth various provisions, all restrictive in nature, governing the authorization and issuance of bonds by counties and municipalities. For example, R.S. 40:1-18 sets forth in minute detail the various steps which must be followed in the adoption of an ordinance or resolution authorizing the issuance of bonds requiring, among other things, that the resolution be published at least one week prior to the second reading, that at the second hearing it shall be read in full and "all persons interested shall be given an opportunity to be heard," after which the "governing body may * * * finally pass or reject such resolution." Again, R.S. 40:1-9 provides that no bond resolution may be adopted except upon the "affirmative votes of at least two-thirds of all the members of the governing body;" and R.S. 40:1-14 imposes a debt limit on the counties, to which indebtedness for park purposes does not constitute an exception. In the light of the foregoing restrictions upon the Board of Chosen Freeholders in borrowing funds, and reading them in pari materia with R.S. 40:37-130 and 131, dealing with the Park Commission, it is inescapable that the Legislature intended that the Board of Chosen Freeholders not only be permitted to exercise its own discretion as to whether or not it will
approve in whole or in part a requisition upon it by the Park Commission, but that it is ...