Civil action in lieu of prerogative writ.
This is a taxpayer's suit in lieu of prerogative writ to set aside as invalid certain portions of an ordinance called "The Administrative Code" adopted by the council of the township on February 5, 1957. There is no factual dispute. The case presents only questions of law arising on the face of the ordinance. It comes before the court on the pleadings, the pretrial order, the ordinance itself, briefs and oral argument.
The electorate of Pequannock Township duly adopted Council Manager Plan "E" of the Optional Municipal Charter Law, which form of government went into effect January 1, 1957. The ordinance in question is the comprehensive local legislative act providing for the administration and organization of the government of the township under this new form of government. The Optional Municipal Charter Law, commonly
known as the Faulkner Act, was enacted as L. 1950, c. 210; N.J.S.A. 40:69 A -1 et seq. Council Manager Plan "E" provided for by Article 12 A of the statute, N.J.S.A. 40:69 A -114.1 to 114.5, inclusive, was added to the original law in 1953, L. 1953, c. 254. The article states that a municipality adopting it shall be governed by its provisions, together with those of Article 2 which is a general article entitled "Incorporation and Powers" Article 17 containing provisions applicable to all plans, and sections 86 through 98 of Article 9 dealing with the council and the manager, applicable by reference to all council-manager plans.
Note should at once be taken of certain pertinent general provisions of the law. N.J.S.A. 40:69 A -26 provides that upon adoption of any optional plan, the municipality shall be governed by the plan adopted, the provisions of the act common to all plans, and to all applicable provisions of general law. General law is defined by section 28 as "any law or provision of law, not inconsistent with this act, heretofore or hereafter enacted which is by its terms applicable or available to all municipalities," plus some additional laws not presently pertinent.
The general powers conferred on all municipalities adopting any optional form of government, set forth in section 29, are important. For our purposes it is noted that thereby every such municipality shall "have full power to: (a) organize and regulate its internal affairs and to establish, alter, and abolish offices, positions, and employments and to define the functions, powers and duties thereof, and fix their terms, tenure and compensation. * * *"
Section 30 declares that this general grant of power is intended to confer the greatest possible power of local self-government consistent with the Constitution of this State, and that all grants of municipal power to such municipality, whether specific or general, shall be literally construed in favor of the municipality.
The philosophy and object of all the council-manager plans must be kept clearly in mind. In such a form of
government, under the act all powers of the municipality and the determination of all matters of policy are vested in the council, except as otherwise provided by the act or general law. See section 68.
Section 91 admonishes that it is the intention that the council shall act in all matters as a body and shall deal with the administrative service solely through the manager. The latter is by section 95 designated as the chief executive and administrative official of the township, responsible to the council for carrying out all policies established by it and for the proper administration of all affairs of the municipality within the jurisdiction of the municipality. The section grants to him numerous comprehensive powers through which to carry out such responsibilities, including appointment of all department heads, officers, subordinates and assistants, except when otherwise provided for in the act. These powers pertinent to the case at bar will hereafter separately be referred to.
New Jersey before 1950 had statutory provision for a municipal manager form of government, R.S. 40:79-1 et seq. The statutory provisions there relating to the respective powers and duties of the council and the manager are set forth in substantially similar language to that found in the Faulkner Act, especially sections 88 through 98 of the latter. Comparison aids interpretation. The language differences in the Faulkner Act provisions evince a legislative intent to give broader power to the manager as against the council than was given by the original Municipal Manager Act. The basic theory of any manager form of government is that there should be a distinct separation of policy determination, which resides in the council, and administration, which resides in the manager. See the final report of the New Jersey Commission on Local Government appointed pursuant to Laws of 1948, Joint Resolution No. 1, dated February 1949, at pages 24 and 66, and the second report of the same commission dated February 1950, page 7.
This fundamental philosophy must be kept continuously in the forefront in considering the ...