Price, Gaulkin and Foley.
Appellants (hereafter called the borough) appeal from a judgment of the Law Division entered October 9, 1959 which ordered the county clerk not to place upon the ballot the non-binding referendum hereafter described which the borough had requested be placed thereon under N.J.S.A. 19:37-1. Since the election is to be held November 3, the appeal was argued and orally decided by affirmance on October 21. At that time we stated that in due course a written opinion would be filed.
Several years ago the borough created the "Borough of South Plainfield Sewerage Authority" (hereafter called the authority) and appointed its members, under N.J.S.A. 40:14 A -1 et seq. The authority has been functioning ever since.
On September 23, 1959 the borough adopted a resolution requesting the Clerk of Middlesex County to place upon the ballot for referendum the following 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?"
N.J.S.A. 19:37-1 provides for non-binding referenda "to ascertain the sentiment of the legal voters of the municipality
* * * upon any question or policy pertaining to the government or internal affairs thereof * * *."
Judge Vogel held that the questions here sought to be propounded did not relate to any question or policy pertaining to the government or internal affairs of the municipality because (quoting from his opinion):
"* * * it is clear from a study of the pertinent statutes that the sewerage authority has full and exclusive power to 'undertake the planning, financing, and installing of sanitary sewers'; and it is equally clear that the Mayor and Council of the Borough of South Plainfield has [sic] no power to act in response to any decision arrived at by the public in the event the questions set forth in the resolution are presented for the consideration of the electorate."
We agree. N.J.S.A. 40:14 A -1 et seq. makes it clear that the borough has no authority to do anything included within question 1 (cf. Beyer v. Tp. Committee of Tp. of Mt. Holly , 6 N.J. Super. 409 (Law Div. 1949); N.J.S.A. 40:14 A -35) and is absolutely forbidden to do what is asked in question 2. N.J.S.A. 40:14 A -29.
The reasoning in Judge Vogel's opinion paralleled that of the majority in Botkin v. Mayor and Borough Council of Borough of Westwood , 52 N.J. Super. 416 (App. Div. 1958), appeal dismissed per curiam , 28 N.J. 218 (1958). Appellants contend that the Botkin case is not in point because a sewerage authority under N.J.S.A. 40:14 A -1 et seq. is merely an agency of the municipality, not a separate and distinct corporate entity as was the consolidated school district involved in the Botkin case, citing County of Camden v. Pennsauken Sewerage Authority , 15 N.J. 456 (1954). Furthermore, say appellants, the majority opinion in ...