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Santoro v. Mayor and Council of Borough of South Plainfield

Decided: October 2, 1959.

ANGELO SANTORO, INDIVIDUALLY, AND THE BOROUGH OF SOUTH PLAINFIELD SEWERAGE AUTHORITY, A BODY CORPORATE, PLAINTIFFS,
v.
THE MAYOR AND COUNCIL OF THE BOROUGH OF SOUTH PLAINFIELD, AND THE COUNTY CLERK OF THE COUNTY OF MIDDLESEX, DEFENDANTS



Vogel, J.s.c.

Vogel

This is an action in lieu of prerogative writ, wherein the plaintiffs, Angelo Santoro, a citizen, and the Borough of South Plainfield Sewerage Authority, seek to enjoin the defendant, the Middlesex County Clerk, from placing on the ballot for the consideration of the electorate at the next general election to be held November 3, 1959, in the defendant borough, the following two questions:

"1. Shall the Sewerage Authority of the Borough of South Plainfield proceed with its plans for financing and installing sanitary sewers in the Borough of South Plainfield?

2. Shall the Mayor and Council of the Borough of South Plainfield undertake the planning, financing, and installing of sanitary sewers in the Borough of South Plainfield?"

A summary reference to the facts indicates that on September 23, 1959 the defendant, Mayor and Council of the Borough of South Plainfield, adopted a resolution under and by virtue of the terms of N.J.S.A. 19:37-1 providing for the questions hereinabove cited to be placed on the ballot at the general election to be held on November 3 next in the Borough of South Plainfield.

The plaintiffs contend that the governing body of the municipality has no legal right to ascertain the sentiment of the qualified voters of the defendant borough on questions over which the municipality has no control; and in accordance with such contention obtained an order to show cause returnable before this court on September 29, 1959, at which time the matter was fully argued before the Superior Court. Law Division, of Middlesex County.

The nature of the issue, coupled with the public interest, compels this court to dispose of all of the questions raised, even though a determination of all the questions is not necessary in view of the court's conclusion. This court is of the opinion that the breadth of the pertinent statute providing for the within procedure should be liberally construed to the end that the public may always be fully informed on the activities of its responsible officials. However, the aforesaid conclusion must be tempered within the limits of legal principles so that its import and the justification for the statutory enactment may not be dealt with lightly.

In accordance with my determination to dispose of all of the questions I propose to treat them in the order in which they were presented.

1. The defendant, Mayor and Council of the Borough of South Plainfield, contends that the procedure invoked by the plaintiffs herein was improper and in violation of the rules of the Supreme Court, and urges that procedurally the matter should have been presented to the court on argument seeking a summary judgment in an action in lieu of prerogative writ, and urges that the complaint be dismissed and the show cause order vacated because the plaintiffs failed to serve the defendants with a notice as contemplated by the rules for summary judgment. The court determines that the provisions of R.R. 4:88-4, whilst not strictly complied with by the plaintiffs, have been substantially met, and that the show cause order was proper under these circumstances, and that the defendants had been given ample opportunity to present their legal contentions at the hearing on the return day of the show cause order. The argument before the court indicated that no factual issues are in contention; and it is the opinion of this court that this proceeding calls for the performance of a ministerial act on the part of the Middlesex County Clerk, and therefore meets the requirement of R.R. 4:88-4.

The court invites attention to R.R. 1:27 A , which provides:

"The rules applicable to any court shall be considered as general rules for the government of the court and the conduct of causes; and as the design of them is to facilitate business and advance justice, they may be relaxed or dispensed with by the court in any instance where it shall be manifest to the court that ...


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