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Bucino v. Malone

Decided: April 30, 1953.

FRANK BUCINO, ET AL., PLAINTIFFS-APPELLANTS,
v.
ARTHUR C. MALONE, CITY CLERK OF HOBOKEN, DEFENDANT-RESPONDENT



On certification to the Superior Court, Law Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Vanderbilt, C.J.

Vanderbilt

This appeal questions the constitutionality of the Faulkner Act, L. 1950, c. 210, N.J.S.A. 40:69 A -1 et seq.

The facts are not in dispute. Since 1915 the City of Hoboken has been governed under the Walsh Act, R.S. 40:70-1 et seq., by a board of five commissioners. On May 8, 1951 the present commissioners were elected for a term of four years. Soon after taking office the city commission adopted a resolution submitting to the voters the question of electing a charter commission under the Faulkner Act, hereinafter described. At the general election of 1951 the people voted in favor thereof and elected a charter commission. After some months of study the charter commission in August 1952 recommended Plan D under the Mayor-Council

Division of the act with a nine-member council as the most desirable form of government for the city. Pursuant to the provisions of the act there was submitted to the voters at the general election of 1952 the question:

"Shall the following plan take effect? 'Shall Mayor-Council Plan D of the Optional Municipal Charter Law, providing for a division of the municipality into six (6) wards with nine (9) councilmen, one (1) to be elected from each ward and three (3) to be elected at large, be adopted by the City of Hoboken?'"

The plan was approved by a vote of 8,765 to 8,658 and an election to choose a mayor and nine councilmen is scheduled for May 12, 1953.

The plaintiffs, six taxpaying residents of the city, brought this action challenging the constitutionality of the act and seeking to prevent the scheduled election. The defendant is the city clerk, whose duty it is under the Act to place the question of the adoption or rejection of Plan D on the ballot. The Attorney-General intervened under Rule 3:24-2 to uphold the constitutionality of the act. The trial court held the act valid and dismissed the action. While the appeal was pending before the Appellate Division of the Superior Court we certified the appeal on the plaintiffs' petition for certification.

I.

Before proceeding to consider the appellants' argument, it seems best to epitomize the work of the Commission on Municipal Government, familiarly known as the Faulkner Commission, and the act in question, which resulted from the labors of the commission. The commission came into existence as the result of Joint Resolution No. 1 of the New Jersey Legislature, dated February 18, 1948. The commission was charged by the Legislature with the duty of:

"* * * inquiring into the structure of local government in this State, of examining the laws governing the various forms and essential procedures of municipal government presently in operation

or available and the terms and conditions on which each such form may be adopted by the people of any community, to investigate and evaluate the actual operation of each of the several forms now in use and to obtain information concerning approved forms and practices of local government in other States, all with the view to suggesting in what respects the laws of New Jersey might be changed to provide the fullest opportunity for local self-government consistent with the interests of the State as a whole."

On November 1, 1948 the commission issued a Preliminary Statement setting forth a brief summary of its findings and recommendations. In it the commission emphasized the drastic need for reforms in the field of municipal government:

"The Commission would first emphasize the extreme confusion that exists in the municipal law and government of New Jersey today. The earliest structures of municipal government were provided by special charters adopted by the Legislature, incorporating the inhabitants of a special area as a body politic and corporate. These special charters still exist and are in effect in many municipalities to the extent that they are not in conflict with subsequent charters adopted by the municipality or with general laws. The Commission has made a diligent search for such charters; but even direct correspondence with each municipality failed to locate many of them, and all of them are so infiltrated with general law as to have long ago lost their identity. Special charters applying to the State's 253 boroughs no longer exist, since the borough law of 1897 superseded all special charters for this type of municipality. Any city, town, township, borough or village that has adopted any of the twenty municipal forms available under the law today, other than the borough form, is under the greatest uncertainty as to its full powers and duties for there is great confusion as to how far their former charters would be superseded."

Realizing that the New Jersey Constitution has no home rule provision permitting a municipality acting on its own initiative to adopt charter provisions best suited to its local needs, the commission recommended the so-called optional charter plan which permits each municipality to select on its own initiative and without subsequent legislative approval any one of several forms of municipal government previously approved by the Legislature.

This Preliminary Statement was widely circulated and publicized throughout the State for the purpose of stimulating

free and open discussion of the plan by the citizens of the State. A public hearing was held on December 9, 1948, and at all times the commission welcomed suggestions and criticisms of its Preliminary Statement. On February 14, 1949 the commission's Final Report was sent to the Governor. Bills based on the Final Report were introduced in the Legislature and public hearings thereon were held on March 11, 1949. After several amendments the bills were passed by both houses of the Legislature, and on June 8, 1950 the Optional Municipal Charter Law (N.J.S.A. 40:69 A -1 et seq.) became effective on receiving the approval of the Governor.

The plans offered by the act are grouped in three general local government divisions -- the Mayor-Council, the Council-Manager, and the Small Municipality. There are six alternative plans under the Mayor-Council Division, four under the Council-Manager Division, and four under the Small Municipality Division, or a total of 14 optional plans. There are two alternative procedures for adopting any of the optional plans. The first is through the election of a charter commission. Under this method, on a resolution of the governing body of the municipality, or on a petition of a specified percentage of the registered voters of a municipality, an election is held on the public question of whether a charter commission shall be elected "to study the charter" of the municipality "and to consider a new charter or improvements in the present charter and to make recommendations thereon," N.J.S.A. 40:69 A -1. At the same time that the public question is presented the voters shall elect a charter commission of five members, N.J.S.A. 40:69 A -2. If the public question is answered in the affirmative, the members of the charter commission shall hold public hearings, and shall provide generally for the widest possible public information and discussion respecting the purposes and progress of its work. It may also hold private hearings and sponsor public forums. Within nine calendar months from the date of its election the charter commission shall report its findings and recommendations to the citizens of

the municipality. The following reports and recommendations may be made:

"(a) that a referendum shall be held to submit to the qualified voters of the municipality the question of adopting one of the optional forms of government authorized in articles 3 through 16, inclusive, of this act, to be specified by the commission; or

(b) that the governing body shall petition the Legislature for the enactment of a special charter or for one or more specific amendments of or to the charter of the municipality, the test of which shall be appended to the charter commission's report pursuant to Article IV, Sec. VII, Par. 10, of the Constitution of 1947 and to the enabling legislation enacted thereunder to the extent that such legislation is not inconsistent herewith; or

(c) that the form of government of the municipality shall remain unchanged; or

(d) such other action as it may deem advisable consistent with its functions as set forth in section 1 - 7 of this article." (N.J.S.A. 40:69A-12)

In the event that the charter commission recommends any one of the Mayor-Council or Council-Manager plans, it may also specify that the municipal council provided for in the plan shall consist of seven or nine members instead of five, as provided in the act. If one of the small municipality plans is recommended it may specify that the council shall consist of five or seven members instead of three, as provided in the act. Where certain of the plans are recommended, the commission may within certain limits specify that the municipality be divided into three, four, five or six wards, instead of two wards as set forth in the act. If the charter commission recommends that the question of the adoption of one of the optional forms of government be submitted to the voters, it shall be submitted at the next general election or regular municipal election, or at a special election at such time as the charter commission's report shall direct. If a special charter is recommended or a special amendment or amendments to the existing charter, it is the duty of the governing body of the municipality to petition the Legislature for a special law in accordance with Article IV, Section VII, paragraph 10 of the Constitution.

The second procedural method of adopting one of the optional plans for a charter is by petition or referendum of the voters without a charter commission. Under this method, upon receipt of a petition signed by a specified percentage of the registered voters of any municipality, the municipal clerk shall arrange for an election on the question of the adoption of the optional plan designated in the petition. The petition shall be voted on at the next general or regular municipal election, if one is held ...


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