In lieu of prerogative writ.
[20 NJSuper Page 282] This is an action in lieu of a prerogative writ brought by the Township of Upper Penns Neck, a municipality in the County of Salem, and by Fred F. Foreman, who on February 7, 1949, was appointed by the Governor as magistrate of the "Municipal Court of the Township of Upper Penns Neck, Township of Lower Penns Neck and Township of Oldmans," pursuant to the provisions of L. 1948, c. 264, § 13, as amended (N.J.S.A. 2:8 A -13), and following an intermunicipal agreement entered into by the Township of Upper Penns Neck, the Township of Lower Penns Neck and the Township of Oldmans, as provided by
L. 1948, c. 264, § 17, as amended (N.J.S.A. 2:8 A -17), which reads:
"Two or more municipalities may, by similar ordinances, enter into an intermunicipal agreement to establish a single municipal court with jurisdiction coextensive with the territory of the municipalities party to the agreement. Upon the taking effect of the ordinances establishing such a municipal court, all police courts, magistrate's courts and recorder's courts, by whatever name called, theretofore existing in the respective municipalities shall be abolished and their functions, powers and duties, records, property, and pending cases shall be transferred to the municipal court so established."
The ordinance establishing the aforesaid municipal court was adopted by the Township of Upper Penns Neck on December 29, 1948. A like ordinance was adopted by the Township of Lower Penns Neck on December 28, 1948, and by the Township of Oldmans in December, 1948.
No time was fixed for the continuance of this intermunicipal agreement in any of the aforesaid ordinances, and no time is set in the statutes for the continuance of such an intermunicipal agreement; nor is any provision made in the statutes or in the ordinances for the termination or rescission of such intermunicipal agreement. The statute and the ordinances provide for the appointment of a municipal judge for a period of three years.
On December 18, 1951, the Township of Lower Penns Neck gave written notice to the Township of Upper Penns Neck and to the Township of Oldmans that it had adopted an ordinance repealing the ordinance adopted on December 28, 1948, and was withdrawing from the intermunicipal agreement.
On December 6, 1951, the Township of Lower Penns Neck adopted an ordinance entitled "An Ordinance to repeal an Ordinance entitled 'an Ordinance Establishing a Municipal Court of the Township of Upper Penns Neck, Township of Lower Penns Neck and Township of Oldmans, in the County of Salem,'" which ordinance was to become effective December 31, 1951, and on December 20, 1951, the aforesaid
Township of Lower Penns Neck adopted an ordinance entitled "An Ordinance Establishing a Municipal Court in the Township of Lower Penns Neck, in the County of Salem" to take effect as of January 1, 1952. On January 3, 1952, a municipal judge was appointed by the Township Committee of the Township of Lower Penns Neck.
The plaintiffs contend that the ordinances adopted by the defendant, Township of Lower Penns Neck, are wholly void because they are without the power of the defendant, Township of Lower Penns Neck, to enact for the following reasons:
1. An ordinance enacted under a specifically delegated power cannot be repealed.
2. An ordinance contractual in nature can only be repealed with the consent of the parties thereto.
3. A municipal magistrate is not removable from office during his term except upon charges being preferred and a fair trial given except where the office is abolished for economy.
The sole question for determination is: May a municipality repeal an ordinance adopted pursuant to L. 1948, c. 264, § 17, as amended (N.J.S.A. 2:8 A -17), which created an intermunicipal agreement establishing a single municipal court ...