Defendants make a motion to dismiss or for summary judgment in this matter. The suit is by the township clerk against the governing body, seeking a declaratory judgment. On February 7, 1961 the governing body passed finally an ordinance to create the Saddle Brook Municipal Utilities Authority and the mayor approved and signed the same. Plaintiff alleges that on February 8, 1961 a petition was filed with the plaintiff by taxpayers of the municipality representing valuation in excess of the statutory requirements, protesting passage of the ordinance and the indebtedness incurred thereunder and requesting a referendum. The clerk has determined that the petitions are in order and is prepared to take the necessary steps to set up the referendum.
On February 10, 1961 the plaintiff received a letter signed by the mayor and two members of the township committee requiring the clerk to file a certified copy of the ordinance in the office of the Secretary of State. Under the statute L. 1957, c. 183, N.J.S.A. 40:14B-1 et seq. , the filing of the ordinance constitutes the establishment of the Municipal Utilities Authority. The defendants contend that petitions are of no effect and should be disregarded by the clerk. They contend that the clerk is obligated to file the ordinance.
The clerk seeks instructions, as he wishes to do the correct thing under the law.
The ordinance merely creates an authority under the above statute, provides for compensation of the five members of the authority, and directs the filing of the ordinance by the township clerk with the Secretary of State. From statements
made in court it appears that it is the intention of the township committee to turn over to the authority the existing municipal water and sewer systems of the township, in which revenues are collected by the municipality. Part of the community has sewers paid for by assessments for benefits, and the objections appear to be that by having the authority build the balance the original owners will pay their own and part of the other residents' bills. It also appears that no provision has been made for compensation to the township for assets acquired by the authority, and that a complaint has been filed but not yet served, attacking the constitutionality of the ordinance and legislative act. These facts play no part in the decision but are set forth for better understanding the factual background.
Defendants contend that the complaint fails to set forth a claim upon which relief can be granted and that there is no genuine issue as to any material fact. Plaintiff has obtained temporary restraint by consent to prevent the taking of disciplinary action against him for failure to follow instructions pending the outcome of this case, and seeks a continuation of the restraint.
There is no dispute as to the proper number of names and amounts of assessed valuation as set forth in the petition. Defendant contends there is no statute permitting the referendum, and the referendum provisions of the Home Rule Act in a situation where there is an expenditure of funds or an improvement project do not apply in this case.
The statutes permitting a referendum under the Home Rule Act are R.S. 40:49-9 and R.S. 40:49-27 which are as follows:
"Any ordinance authorizing any improvement shall become operative ten days after the publication thereof after its final passage, unless within said ten days a protest against making the improvement shall be filed in the office of the municipal clerk signed by taxpayers representing ten per cent in amount of the assessed valuation of such municipality, whose names appear on the last preceding assessment roll thereof, in which case the ordinance shall
remain inoperative until a proposition for the ratification thereof shall be adopted, at an election to be held for that purpose, by a majority of the qualified voters of the municipality voting on the proposition. The certificate of the municipal clerk filed in his office as to the filing or sufficiency of any protest shall be conclusive for the purpose of this section.
At least ten days before the election notice thereof shall be published once in a newspaper published in the municipality, or if there be no such newspaper, then in a newspaper published in ...