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Nolan v. Fitzpatrick

Decided: May 26, 1952.

EZRA L. NOLAN, CHARLES H. LENDER, AND ANNA ZELINSKI, INDIVIDUALLY AND AS MEMBERS OF THE BOULEVARD COMMISSIONERS OF THE COUNTY OF HUDSON, AND THE BOULEVARD COMMISSIONERS OF THE COUNTY OF HUDSON, PLAINTIFFS-APPELLANTS,
v.
GEORGE J. FITZPATRICK, JOSEPH E. COLFORD, JOSEPH E. CONNELLY, JOSEPH H. KENNY, WILBUR J. MCGOWAN, WILLIAM V. O'DRISCOLL, JOSEPH A. SORIERO, JAMES J. DONOVAN, AND F. JOSEPH O'HARE, INDIVIDUALLY AND AS MEMBERS OF THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF HUDSON, AND THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF HUDSON, DEFENDANTS-RESPONDENTS



On appeal from the Law Division of the Superior Court, certified by the Supreme Court on its own motion.

For reversal -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- Justice Heher. The opinion of the court was delivered by Vanderbilt, C.J.

Vanderbilt

[9 NJ Page 480] On December 28, 1951, the plaintiffs as the Boulevard Commissioners of the County of Hudson made a written requisition on the defendant board of chosen freeholders of the county pursuant to R.S. 27:17-7 for $1,175,534, being the amount the commissioners deemed necessary to carry out their statutory responsibilities. On January 30, 1952, the defendant board advertised its proposed budget for 1952 including an appropriation to the plaintiff commissioners of only $800,000.

On the same day the plaintiffs instituted this suit in lieu of a prerogative writ, seeking to compel the defendant board to raise the total amount of their requisition and to obtain a stay meantime against its adopting its proposed budget without including the total amount requisitioned by the plaintiffs. The trial court denied the stay on the ground that it lacked jurisdiction until the plaintiffs had exhausted their administrative remedies with the Director of the Division of Local Government and the Local Government Board. Then followed cross-motions for summary judgment on which the trial court denied the plaintiffs' application and granted the defendant's for the same reasons as on the original motion. From the three orders entered on the trial court's rulings the plaintiffs appealed to the Appellate Division of the Superior Court, and we have certified the appeal here on our own motion.

First we must determine whether the plaintiff commissioners' requisition is mandatory on the defendant board of chosen freeholders, or whether that board in making up its annual budget may overhaul the plaintiffs' requisition. The three boulevard commissioners, who are elected at large in the county for three-year terms, R.S. 27:17-2, are given the exclusive right with respect to the maintenance, repair and control of "a county road," R.S. 27:17-5 (see also R.S. 27:17-15), in this case the Hudson Boulevard running some 20 miles north and south throughout the county. The statute vesting these exclusive powers in the boulevard commissioners further gave them "the use and possession of all property and plant of the county used for maintaining, lighting and repairing such roads," R.S. 27:17-8, as well as the exclusive right to pass ordinances for the regulation and use of the road, R.S. 27:17-5. It is against this background that R.S. 27:17-7, the crucial section of the statute on this appeal, must be read:

"On or before January first, in each year, the commissioners shall make a requisition in writing on the board of chosen freeholders of

the county, for the moneys necessary to enable the commissioners to carry out the purpose of this chapter.

The board of chosen freeholders shall cause the amount to be raised and collected in the same manner as money for other county purposes and the moneys thus raised shall remain a fund in the hands of the county treasurer to be used for such purposes only, and to be drawn, on warrants signed by the president and secretary of the commission, and the board of chosen freeholders shall have no control over the fund."

The legislative intent of this section is clear and unambiguous. Having taken the control and maintenance of the boulevard from the defendant board of chosen freeholders and vested it in the plaintiff boulevard commissioners, the Legislature, by the first paragraph of the quoted section of the statute, imposed a mandatory duty on the plaintiff commissioners to requisition each year the amount necessary to carry out their statutory responsibilities. The second quoted paragraph imposed a corresponding mandatory duty on the defendant board of chosen freeholders to raise the amount requisitioned each year by the plaintiff commissioners. The money so raised, like the property committed to the care of the boulevard commissioners, R.S. 27:17-5, supra, is not subject to the control of the board of chosen freeholders, but is a separate fund in the hands of the county treasurer for the use of the boulevard commissioners only. The right of the boulevard commissioners to the requisitioned sum and the duty of the board of chosen freeholders to raise such sums correspond to the familiar right of each county to receive from the several municipalities within the county the sum requisitioned from each of such municipalities annually for county taxes, Booth v. Parnell, 12 N.J. Mis. R. 413 (Sup. Ct. 1934). Nowhere in the act here in question is there any provision giving the board of chosen freeholders the power to review and approve or revise the amount requisitioned by the boulevard commissioners, such as is given to the board in the case of county libraries, R.S. 40:33-9, or county park systems, R.S. 40:37-14, N.J.S.A. 40:37-15.1, R.S. 40:37-233, 234; see also Union County Park Commission v. Board of Chosen Freeholders of Union County, 3 N.J. 73

(1949), where the language of the statute in each case clearly indicates the legislative intent to vest discretion, either absolute or within statutory limits, in the board of chosen freeholders as to the amount of the annual appropriation it will make to these bodies. On the contrary, the situation here is similar to the annual requisition from each county board of school estimate, N.J.S.A. 18:15-58.12, which is mandatory on the county, or the estimate for the use of the county mosquito extermination commission, which is likewise mandatory on the county within the limits prescribed by R.S. 26:9-22, 23.

In a wide variety of cases, moreover, having to do with the administration of justice our courts, acting under statutes indicating an intent to make requisition thereunder binding on the county, have upheld as mandatory a bill of associate counsel in a homicide case, Lindabury v. Freeholders of Ocean, 47 N.J.L. 417 (Sup. Ct. 1885), a bill of a court reporter, Knight v. Freeholders of Ocean, 48 N.J.L. 70 (Sup. Ct. 1886), a bill of a detective, Irving v. Applegate, 49 N.J.L. 376 (Sup. Ct. 1887), and a requisition for the equipment and maintenance of a county criminal district court, Carrick v. Hudson County, 126 N.J.L. 181 (Sup. Ct. 1941). In like manner under similar mandatory statutes requisitions relating to the operation of the election machinery within the county have been enforced against the county, McDonald v. Freeholders of Hudson, 99 N.J.L. 393 (E. & A. 1923); Sewell v. Hudson County, 126 N.J.L. 186 (Sup. Ct. 1941). Statutes imposing mandatory obligations on the counties are thus no novelties in our law. The Legislature where it desires to confide discretion to a board of chosen freeholders has experienced no difficulty in finding apt language to do so. Where, as here, it has not only ...


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