For modification -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor and Schettino. Opposed -- None. The opinion of the court was delivered by Proctor, J.
The plaintiff appealed from an adverse judgment entered in the Law Division. While the appeal was pending in the Appellate Division we certified the cause on our own motion.
The plaintiff, a taxpayer of Morris County, brought the action to set aside identical resolutions passed by the Board of Chosen Freeholders of Morris County at the annual organization meetings of the board on January 2 of the years 1957 and 1958, and by supplemental complaint he challenged an identical resolution passed on January 3, 1959. Each resolution directed that during the ensuing year "the Treasurer of said County pay to each Freeholder the sum of $100 per month payment for travel and incidental expenses in line of duty as a member of the Board of Chosen Freeholders of the County of Morris." The plaintiff charged that the resolutions were void as being without legal authority and demanded (a) that the defendant Venner, as county treasurer, seek reimbursement of all sums paid to the members of the defendant board pursuant to the resolutions, (b) that further payments be restrained, and (c) that Venner obtain an itemized accounting of all expenses allegedly incurred by the members of the board since January 2, 1957.
The defendants denied the invalidity of the resolutions and contended that they were passed for the proper purpose of defraying the cost of necessary expenditures made by members of the board in performance of their official duties.
They further asserted that all sums paid to them pursuant to the resolutions were actually used for that purpose.
Morris County is governed by a "small" board of chosen freeholders under the provisions of R.S. 40:20-2 et seq., and the board is composed of five duly elected members. The maximum salaries of members of the board in counties in Morris' population class were at the time of these resolutions fixed by N.J.S.A. 40:20-72(c) at $6,000 per annum, with an additional $500 for the director. That statute further directs that these salaries "shall be in lieu of all fees or other compensation," a limitation that has been carried over unchanged from the act revising the compensation of members of such boards. L. 1920, c. 14. At the time of the adoption of the resolutions the members of the board were being paid the maximum salaries allowed by the statute.
Pursuant to the resolutions of 1957 and 1958, each freeholder was paid the full sum of $100 every month from the date of the adoption of the 1957 resolution until October 1958, when payments were discontinued by stipulation of counsel to await the outcome of this action. The payments were made to each member of the board upon submission to the county treasurer of monthly vouchers certified by the member to be "for travel and incidental expenses in line of duty as a member of the Board of Chosen Freeholders of the County of Morris for the month * * *." The vouchers neither itemized any expenditure for travel or other incidental expense, nor were accompanied by any supporting statement of such expenditure. They merely set forth the foregoing statements of the members without certification by any other county officer that the expenses had been incurred on behalf of the county.
It is undisputed that the resolutions were adopted at public meetings of the board without opposition, and that appropriations to support them were made line items in the annual county budgets which were approved by the director of local government and duly advertised and passed at public hearings. The plaintiff contended, however, that the resolutions
and the payments made pursuant to them were in effect increases in the salaries of the freeholders in violation of the maximum fixed by N.J.S.A. 40:20-72; further, that there was no statutory or other authority for the reimbursement of the freeholders for expenses of any kind; and finally, that the payments were in violation of N.J.S.A. 40:5-1 which requires itemization and certification of bills or demands on county funds.
At the trial the director of the defendant board testified that the resolutions fixing the monthly payments at $100 were passed after an analysis of the expenses actually incurred by the members of the board in previous years. The freeholders testified that during 1957 and 1958 their expenses in the performance of their official duties equalled or exceeded the amount of the payments. Each estimated the average monthly mileage he traveled in his own car on county business and other expenses of various kinds asserted to be in connection with his official duties. However, none of the freeholders testified to any particular expenditures or presented any itemized record of his expenses incurred during the period in question.
The trial judge found as a fact that the expenses incurred in 1957 and 1958 by the members of the board equalled or exceeded "the total of their expected yearly allowances." He concluded that the prohibition of N.J.S.A. 40:20-72 against paying compensation to freeholders above their annual fixed salaries did not outlaw reimbursement for expenses "requisite to the proper discharge of official duties." He further held that the defendant board was within its rights "in the absence of expressed legislative prohibition" in appropriating funds for such expenses. He decided, however, that expense payments to freeholders were subject to the itemization and certification provisions of N.J.S.A. 40:5-1, and he directed that from the date of the parties' ...