On appeal from Superior Court, Law Division, whose opinion is reported in 19 N.J. Super. 469.
For affirmance -- Justices Heher, Oliphant, Burling, Jacobs and Brennan. For reversal -- Chief Justice Vanderbilt, and Justice Wachenfeld. The opinion of the court was delivered by Burling, J.
[11 NJ Page 312] This appeal involves the validity of departmental assignments to city commissioners effected ostensibly under the pertinent provisions of the Walsh Act (R.S. 40:70-1 et seq., L. 1911, c. 221 as amended) at the organization meeting of a newly elected city commission in Hoboken, New Jersey, on May 15, 1951. An action was instituted by two of the members of the five-man commission, together with an individual taxpayer of the city, to test the validity of the resolutions purporting to effect these departmental assignments. It was filed in the Superior Court, Law Division, against the remaining three members of the commission, the board of commissioners in its official capacity and the city (by its corporate title of Mayor and Council of the City of Hoboken), and was in the form of an action in lieu of prerogative writ under Rule 3:81. The Law Division entered judgment for the plaintiffs, Grogan v. De Sapio, 19 N.J. Super. 469 (Law Div. 1952), setting aside the questioned resolutions. Certification of the defendants' subsequent appeal prior to hearing before the Superior Court, Appellate Division, was allowed by this court upon the defendants' unopposed petition therefor. Grogan v. De Sapio, 9 N.J. 608 (1952).
Commissioners DeSapio, Borelli and Grogan (who were members of the preceding commission) and Gallo and Borrone (newcomers to the governing body) were elected to the City Commission of Hoboken from a field of 48 candidates in May, 1951. At the organization meeting on May 15, 1948 the board of commissioners distributed the directorships of the five municipal departments. At the same meeting the board by majority vote, the majority consisting of DeSapio, Borelli and Gallo, allocated the various powers and duties of the municipal government to the five departments. Commissioners Grogan and Borrone subsequently brought this action in the Superior Court, Law Division, to test the validity of the five resolutions by which the allocation of powers and duties was effected.
The statements of questions involved may be summarized as follows: (1) May the courts set aside resolutions of a municipal board of commissioners purporting to effect initial distribution or designation of departmental assignments under the commission form of government law (R.S. 40:70-1 et seq., as amended; L. 1911, c. 221, popularly known as the Walsh Act, as amended), for excess of statutory authority or abuse of discretion? (2) If so, was the trial court's determination of the applicability of these principles erroneous under the facts exhibited in the present case?
Various subsidiary arguments of law were presented to this court and will be adverted to where necessary during the course of this opinion.
The commission theory of government as applied to municipal corporations in this country was attempted in spirit in Sacramento, California, in 1863 (Session Laws of California, 1863, p. 415) by the establishment of a board of trustees to manage municipal affairs, but new municipal officers and boards were gradually created until the board of trustees became a purely legislative body; it was abandoned in 1893 for the mayor and council system. A comparable plan was placed in operation in New Orleans, Louisiana, in 1870 (Session Laws of Louisiana, 1870, p. 30); Memphis and
Mobile were temporarily so governed after 1878; and the government of the City of Washington, in the District of Columbia, has been vested in a board of three commissioners since 1878. McDonald, American City Government and Administration, (4 th ed. 1948), pp. 195-196; Kneier, City Government in the United States, (Rev. Ed. 1947), pp. 286, 287; 2 McQuillin, Municipal Corporations, (3 rd ed. 1949), sec. 9.20, pp. 520-521. The authorities appear generally to recognize as the source of the impetus of commission government in municipalities in the United States, the plan evolved for the city of Galveston, Texas, in 1901. 2 McQuillin, Municipal Corporations (3 rd ed. 1949), sec. 9.20, p. 520; I McLaughlin and Hart, Cyclopedia of American Government, (1949), pp. 344-345; City Government in the United States, supra, p. 286; American City Government and Administration, supra, pp. 193-195. In 1901 Galveston was swept by a tidal wave from the Gulf, which destroyed about one-third of the city. Due to allegations of corruption and failure to meet the emergent conditions by legislative act, there came into being a board of commissioners, composed of five businessmen, as the governing body of the municipality. I Cyclopedia of American Government, supra, p. 345. See also City Government in the United States, supra, p. 286; American City Government and Administration, supra, pp. 193-194.
In our own State the commission form of municipal government concept was not slow to take root, and the enactment of the Walsh Act in 1911 made it an actuality here. It was a step in an endeavor of the people to obtain effective home rule. It appears that from Colonial days in this State municipalities were not deemed constitutionally vested with home rule, and there was no uniform recognition of any right of local self-government. Attorney General v. McGuinness, 78 N.J.L. 346, 354-355 (E. & A. 1910). It was held in the McGuinness case, supra, that the Constitution of 1844 "* * * may be searched in vain for any provision guaranteeing that privilege to the people * * *"
and "* * * the power of the general legislature over local municipal establishments is not hampered by any limitation. * * *" (P. 357) Municipal charters had been granted by the Legislature both under the Constitution of 1776 and the Constitution of 1844, but there was no uniformity in the powers conferred thereby. And there were many instances where the Legislature provided for exercise of powers of local government by commissioners (for example of these enactments during the period 1844-1875, see Attorney General v. McGuinness, supra, at pp. 358-366). The constitutional amendment of 1875, adding to N.J. Const. 1844, Article IV, Sec. VII, par. 11, provided "* * * clear authority in the letter of the constitution, as amended, for the legislature to pass general laws providing for the appointment of commissions to regulate municipal affairs * * *" and there was considerable legislation thereafter relative to the exercise of special governmental power by appointed commissions. Ibid. (pp. 366-367). It was not much over a year after the decision in the McGuinness case, supra, that the Legislature enacted the Walsh Act (effective April 25, 1911) providing an optional method of local municipal government by commissioners elected by the people to be governed thereby. The first such commission form of municipal government was inaugurated in Trenton in this State on August 22, 1911. See editorial note, 34 N.J.L.J. 257 (Sept. 1911). The then popular understanding of the nature of this type of government was expressed in an editorial in the New Jersey Law Journal for December, 1913, in the following language:
"Like everything else in the shape of municipal action, the scheme cannot be said to be perfect, but it has so many advantages over the old plan of a large body of aldermen or council members, who are usually chosen because of their political pull, that we may safely predict that, at a time not too far distant, every city and borough in America will be governed by a smaller body of chosen men than heretofore. There must be more concentrated responsibility, a doing away with party lines and the selection of men to govern as representative of the municipalities as are bank directors of the stockholders
or church elders of a church. Under the old system of a large body of governors, divided responsibility, and no salary, graft flourishes, and the greatest amount of taxation is made to represent the smallest amount of municipal benefit." (36 N.J.L.J. 354).
Some students of municipal affairs have expressed the belief that the commission form of government has not served its original objectives.
Local self-government was advanced in this State by the enactment of the Home Rule Act in 1917. However we find no necessity in this case for a discussion of its provisions, for the determinations required here are concerned principally with the construction and application of the pertinent provisions of the commission form of government law.
The most recent expression of the will of the people of this state in the progress of the home rule movement is contained in our new constitution. N.J. Const. 1947, Art. IV, Sec. VII, par. 11, provides:
"11. The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor. The powers of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law."
The phraseology of this clause was the subject of such sincere debate in the proceedings of the Constitutional Convention before the final form, which was incorporated in the 1947 charter as finally adopted by the people, was agreed upon. See I Proceedings of the New Jersey Constitutional Convention of 1947, pp. 98, 302, 400-403, 415-416, 449-450, 459, 763.
As applied to N.J. Const. 1947, Art. IV, Sec. VII, par. 11, supra, we have held that liberal construction of statutes does not connote an extension of the boundaries delineated by the statutory phraseology as commonly used, Lynch v. Borough ...