On motion and counter-motion for summary judgment.
The plaintiff filed a complaint setting up that he is an elector of the Town of Nutley, that on August 27, 1951, he presented to the town clerk a petition addressed to the board of commissioners calling upon it to adopt the ordinance embodied therein or submit the question of its adoption to the electors of the town at the next general municipal election, or if a general election is not held within 90 days, then at a special election to be called in the manner prescribed by law. The petition was signed by more than 15 per cent of the votes cast at the previous general election and was verified in accordance with the requirement of R.S. 40:74-11, and on September 10, 1951, certified by the town clerk to the board of commissioners as meeting the conditions prescribed by R.S. 40:74-12. The board of commissioners on the same date, by unanimous resolution, declined to pass the proposed ordinance or to submit it to the electors. The complaint demands that the question be put to a referendum at a general or special election.
The defendants' answer admits all of the allegations of the complaint and sets up four separate defenses: (1) that the petition under R.S. 40:74-9 et seq. is illegal, (2) that the board of commissioners, acting under R.S. 40:46-27 and 28 "deemed it advisable to fix the salaries of the members of the police and fire departments * * * by a referendum * * * passed an ordinance * * * fixing such salaries, * * * (and that) at a general election held on November 8, 1949
* * * a majority * * * voted 'Yes' and such salaries * * * have been paid * * * and the board of commissioners is without power and authority to pass said proposed ordinance or to submit said ordinance to the voters * * *." The two additional defenses merely restate the second defense quoted in the abbreviated form above.
At the argument on the motions, counsel agreed that the statement of the question for decision in plaintiff's brief was accurate and fair. It reads: "It is not disputed that the salaries of firemen and policemen were fixed by referendum held on November 8, 1949, and that such salaries are still effective. The question is whether the action of the voters fixing such salaries by referendum precludes the petitioner from filing this petition and justifies the board of commissioners in rejecting it." The court deems that the question is more accurately stated by the portion of the above quotation italicized by the court.
The statute under which the plaintiff proceeded is R.S. 40:74-9: "Any proposed ordinance may be submitted to the board of commissioners by petition of the electors, in the manner hereinafter in this article provided." The following sections, 10 through 13, set forth the procedure to be followed. R.S. 40:74-14 prescribes the duty of the board when the petition conforms to the statutory requirements, which were admittedly met. It reads:
"* * * the board shall either:
a. Pass the ordinance without alteration within twenty days after attachment of the clerk's certificate to the accompanying petition; or
b. Forthwith, after the clerk shall attach to the petition accompanying such ordinance his certificate of sufficiency, call a special election, unless a general municipal election is to be held within ninety days thereafter, and at such special or general municipal election such ordinance shall be submitted without alteration to the vote of the electors of the municipality."
The concluding paragraph deals with a petition "signed by not less than ten nor more than fifteen per cent of the electors" and is inapplicable since the petition here involved was ...