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Keyport Sewerage Authority v. Granata

Decided: September 16, 1958.

KEYPORT SEWERAGE AUTHORITY, AND ALTON WALLING, AND BOROUGH OF KEYPORT, INTERVENOR, PLAINTIFFS,
v.
ANTHONY GRANATA, DEFENDANT



Civil action in lieu of prerogative writs.

Mariano, J.s.c.

Mariano

This is a contest over the right to membership on the Keyport Sewerage Authority.

Immediately prior to the pretrial conference the Borough of Keyport sought and obtained, without objection, permission to intervene as a party plaintiff. It adopted and approved and agreed to be bound by the stipulation of facts, oral argument and memoranda of law submitted and filed by the plaintiffs. All the parties, through their respective counsel, stipulated the following facts, and requested that the court, upon oral argument and submission of memoranda of law, decide the matter as if cross-motions for summary judgment had been made.

STIPULATED FACTS.

1. The Keyport Sewerage Authority was created by the mayor and council of the Borough of Keyport pursuant to the provisions of the "Sewerage Authorities Law," L. 1946, c. 138, p. 639; N.J.S.A. 40:14 A -1 et seq.

2. The ordinance required by N.J.S.A. 40:14 A -4(b) was enacted and a certified copy thereof was filed with the Secretary of State on March 25, 1957, as required by N.J.S.A. 40:14 A -4(d). The Secretary of State's certification of the filing of the ordinance is annexed hereto as Schedule A-1.

3. On March 25, 1957 the borough council of the Borough of Keyport adopted a resolution appointing Anthony Granata to membership on the Keyport Sewerage Authority for a term expiring on February 1, 1958. The minutes of the meeting at which the resolution was adopted is annexed hereto and made part hereof as Schedule E.

4. A certified copy of the aforementioned resolution was filed with the Secretary of State of the State of New Jersey on April 11, 1957. The certificate of the Secretary of State, certifying to the filing of the aforesaid resolution, is annexed hereto and made a part hereof as Schedule B-1.

5. The minutes of a meeting of the borough council for February 10, 1958 show the following: "Mr. LoPresto made a motion that Anthony G. Granata be appointed a member of the Keyport Sewerage Authority starting February 1, 1958. Mr. Hansen seconded the motion which carried unanimously on roll call." The copy of the minutes of this meeting are attached to the complaint.

6. Defendant, Anthony Granata, was unanimously appointed chairman of the Keyport Sewerage Authority by the other members of the Sewerage Authority.

7. The motion referred to in paragraph 5 above that was made by Mr. LoPresto was made verbally from the floor and no writing was read by the clerk to the governing body.

8. On August 15, 1958 the following resolution was unanimously adopted by the mayor and council of the Borough of Keyport:

"Be it resolved by the Mayor and Council of the Borough of Keyport that since the appointment of Mr. Anthony Granata to the Keyport Sewerage Authority was made by motion rather than by resolution as required by the Statutes of the State of New Jersey that his seat be declared vacant."

A copy of the minutes of the meeting of August 15 are annexed hereto and made a part hereof as Schedule F.

9. On August 15, 1958 the following resolution was unanimously adopted by the mayor and council of the Borough of Keyport:

"Be it resolved by the Mayor and Council of the Borough of Keyport that Alton Walling is hereby appointed to a position on the Keyport Sewerage Authority to fill the office formerly held by Anthony Granata whose position on said Authority was declared vacant for failure of legal appointment;

Resolved further that a certified copy of this resolution be forwarded to the Secretary of State of New Jersey."

A copy of the minutes of the meeting of August 15 is annexed hereto and made a part hereof as Schedule F. The certification of the Secretary of State certifying that a copy of the resolution has been filed with him is annexed hereto and made a part hereof as Schedule D-1.

10. The resolution which was submitted to the governing body was contained in a writing which was read by the borough clerk to the governing body prior to its being voted on.

11. The practice followed by the governing body of the Borough of Keyport in the payment of bills is to prepare a written resolution which is read at the meeting. The resolution contains the bills to be paid and the resolution is read to the governing body prior to its being voted on.

12. At a meeting of the Keyport Sewerage Authority, held on Monday, August 19, 1958, plaintiff Alton Walling and defendant Anthony Granata both claimed the right to ...


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