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Greggio v. City of Orange

Decided: September 29, 1961.


Waugh, J.s.c.


These are two actions in lieu of prerogative writs, consolidated for trial, to determine the validity and constitutionality of two similar ordinances passed by the City of Orange on March 21, 1961 and by the City of East Orange on May 8, 1961 under the Consolidated Municipal Services Act. The cities of Orange and East Orange are two of seven municipalities attempting to provide for the joint operation of a solid-waste disposal system. Substantially similar ordinances were adopted by the Borough of Glen Ridge on March 13, 1961, the Township of Cedar Grove on March 20, 1961, the Town of Montclair on March 7, 1961, the Borough of Verona on March 7, 1961, and the Town of Bloomfield on March 6, 1961. The plaintiffs are residents, property owners and taxpayers of the two municipalities in the consolidated actions.

The ordinances were adopted pursuant to the provisions of Title 40 of Revised Statutes of New Jersey and, particularly,

N.J.S.A. 40:48B-1 et seq. , the Consolidated Municipal Services Act. Subsequent to the adoption of the ordinance each of the seven municipalities has, by resolution of its governing body, approved the execution of the joint contract establishing the terms and conditions of the activities of the joint meeting. Pursuant to the resolutions, each municipality has executed the joint contract.

The plaintiffs attack not only the ordinances but also the validity and constitutionality of N.J.S.A. 40:48B-1 et seq. And plaintiff Roselle attacks the validity of the resolution adopted by the City of East Orange on May 8, 1961, providing for the employment of counsel in connection with the pending suit against the City of Orange, on the ground that the retainer of counsel to appear in litigation involving another municipality is beyond the power of the governing municipal body.

Preliminarily, the court will rule upon the admissibility of certain proffered documents marked D-15, D-13 and D-14 (all for identification).

Exhibit D-15, entitled "Garbage Collection Practices," is a report compiled in 1959 by John J. Bergin, Deputy Attorney General, for the Honorable David D. Furman, Attorney General of the State of New Jersey. The document reports the detailed findings resulting from exhaustive studies of the bidding practices of scavenger contractors and the methods employed by municipal authorities of seven northern New Jersey counties during the years 1952 to 1958.

Exhibit D-13, entitled "Action Program for Joint Participation in Community Solid Waste Disposal," is a report by a committee appointed to investigate the problem of solid-waste disposal directed to municipalities contemplating participation in the joint meeting for the disposal of community solid waste.

And Exhibit D-14 is a "Refuse Disposal Study" by a group of municipal representatives headed by Robert G. Hooke of Montclair, directed to the same group as Exhibit D-13.

The latter two reports are authored by engineers and presumably contain factual data of a technical nature. Defendant offered this evidence for the purpose of indicating to the court the facts surrounding the refuse disposal industry, the municipal contract difficulties in this area, and the technical data on solid-waste disposal systems, their construction and operation.

Plaintiff made timely objection to the admissibility of each of these reports, contending they were immaterial and irrelevant to the issues before the court. The court reserved decision on the matter and permitted counsel to file supplemental memos.

Although the court is "under a duty to refer to the history of the times 'to ascertain the reason for, and the meaning of the provisions of a statute, and to the general state of opinion, public, judicial and legislative, at the time of the enactment,'" its purpose is to ascertain legislative intent. Crater v. County of Somerset , 123 N.J.L. 407, 413 (E. & A. 1939).

Justice Heher in Jamouneau v. Harner , 16 N.J. 500 (1954), at page 515, said:

"There is a presumption of the constitutional sufficiency of a legislative enactment; and the onus of a showing contra is on him who interposes the challenge. [Citing cases] The finding of the Legislature is presumed to have the support of facts known to it 'unless facts judicially known or proved preclude that possibility'; generally, it is 'not the province of a court to hear and examine evidence for the purpose of deciding again a question which the legislature has already decided'; its function 'is only to determine whether it is possible to say that the legislative decision is without rational basis.'"

There is also a presumption in favor of the validity of local legislative acts. West Orange v. Jordan Corp. , 52 N.J. Super. 533, 538 (Cty. Ct. 1958), and cases cited therein. New Orleans Public Service v. City of New Orleans , 281 U.S. 682, 50 S. Ct. 449, 74 L. Ed. 1115 (1930), cited in Jamouneau v. Harner, supra , 16 N.J. , at page 516. And

"* * * it is well settled that when city commissioners, as here, perform a legislative function their motive for passing an ordinance cannot affect its validity. [Citing cases]." American Grocery Co. v. Bd. of Commrs. New Brunswick , 124 N.J.L. 293, 297 (Sup. Ct. 1940), affirmed 126 N.J.L. 367 (E. & A. 1941).

It is encumbent upon the court to glean the intent of statutes from the context and statutes in pari materia, Key Agency v. Continental Cas. Co. , 31 N.J. 98, 103 (1959), in order to learn and give effect to their intent and purpose as a whole. Appeal of N.Y. State Realty & Terminal Co. , 21 N.J. 90, 98 (1956). In the instant case such a reading of the title of the act and the provisions of N.J.S.A. 40:48B-1 et seq. , and the title and contents of the municipal ordinances, leaves no doubt as to the intent or purpose of either the Legislature or the municipal governing bodies. Indeed, even the arguments of all counsel, both by way of brief and oral argument, indicate that they do not doubt the intent or purpose of the acts and ordinances but rather the power of the enacting bodies to effectuate that intent. The issues, then, are confined to validity, and, as stated supra , reports such as those offered into evidence cannot be resorted to by the court to determine validity.

Since the reports offered are neither necessary for the purpose offered nor material to the issues before the court, plaintiff's objections are sustained. To the extent that certain quotations from these reports appear in defendants' trial memorandum, they have been excluded from the court's consideration of the case.

The court will first consider whether N.J.S.A. 40:48B-1 et seq. , is unconstitutional in that it delegates the legislative power to the management committee of the joint meeting without adequate and specific standards. As a corollary, are the ordinances invalid in that they delegate legislative authority to the management committee without adequate and specific standards?

Grants of power to municipal corporations must be liberally construed. Mullin v. Ringle , 27 N.J. 250, 256

(1958); New Jersey Constitution of 1947, Art. IV, Sec. VII, par. 11; R.S. 40:42-4. Section 12 of N.J.S.A. 40:48B also states that the act is to be "construed liberally to effectuate the legislative intent and as complete and independent authority for the performance of each and every act and thing herein authorized." Especially do our courts uphold the Legislature in the exercise of legislative policy to delegate broad authority in handling of local problems that involve the health and welfare of the community. Garbage disposal is among these problems. See Marangi Bros. v. Bd. of Com'rs of Ridgewood , 33 N.J. Super. 294 (App. Div. 1954); Township of Dover v. Witt , 7 N.J. Super. 259 (App. Div. 1950); Atlantic City v. Abbott , 73 N.J.L. 281 (Sup. Ct. 1906).

It is fundamental, however, that when the Legislature delegates a portion of its legislative power to a municipal body or an administrative agency, the Legislature must prescribe the standards that are to govern the exercise of those delegated powers. Van Riper v. Traffic Tel. Workers' Fed. of N.J. , 2 N.J. 335, 353 (1949). The same rule of law applies to delegation by the municipality to either an official or governmental board. Weiner v. Borough of Stratford, County of Camden , 15 N.J. 295, 299 (1954).

"In ascertaining the presence of standards and norms to support delegated powers, it is fundamental we are not confined to the four corners of the particular section, but are obligated to examine the entire act in the light of its surroundings and objectives, nor need the standards be set forth in express terms if they may be reasonably inferred from the statutory scheme as a whole." In re Berardi , 23 N.J. 485, 491 (1957).

In Ward v. Scott , 11 N.J. 117 (1952), Justice Jacobs, speaking for our Supreme Court, reiterates the necessity for standards. He states, 11 N.J. , at pages 123-124:

"* * * But the exigencies of modern government have increasingly dictated the use of general rather than the minutely detailed standards in regulatory enactments under the police power. Thus,

the Board of Public Utility Commissioners has been guided by simple standards of 'public convenience and necessity' (R.S. 48:11-1 N.J.S.A.) and 'just and reasonable.' R.S. 48:2-21, N.J.S.A. See Fornarotto v. Board of Public Utility Commissioners , 105 N.J.L. 28, 32 (Sup. Ct. 1928). The Commissioner of Alcoholic Beverage Control, with authority to fix prices and promulgate regulations (Gaine v. Burnett , 122 N.J.L. 39 (Sup. Ct. 1939), affirmed 123 N.J.L. 317 (E. & A. 1939)), has been guided by the general legislative pronouncement that the statute shall be administered in 'such a manner as to promote temperance and eliminate the racketeer and bootlegger.' R.S. 33:1-3, 39, N.J.S.A. And the Director of the Milk Control Board has been authorized to take such measures including the fixing of prices and the promulgation of regulations as may be 'necessary to control or prevent unfair, unjust, destructive or demoralizing practices which are likely to result in the demoralization of agricultural interests in this State engaged in the production of milk or interfere with the maintenance of a fresh, wholesome supply of sanitary milk for the consumers of this State.' See R.S. 4:12A-21, N.J.S.A. [Citing cases]."

In Brandon v. Montclair , 124 N.J.L. 135, 143 (Sup. Ct. 1940), affirmed 125 N.J.L. 367 (E. & A. 1940), Justice Heher noted:

"A statute often speaks as plainly by inference, and by means of the purpose which underlies it, as in any other manner. That which is clearly implied is as much a part of the law as that which is expressed."

The statute in question delegates to municipalities the right to operate certain "public improvements, works, facilities, services or undertakings which any such municipality is empowered to operate" by the formation of a "joint meeting" and the power to enter into a "joint contract for a period not to exceed 40 years." The joint meeting's powers and authorities are set forth. A joint contract is provided for, and "the joint contract shall be subject to approval by resolution of the governing bodies of each of the municipalities prior to its execution." Amendment is also provided for. The management committee "shall adopt rules and regulations to provide for the conduct of its meeting and the duties and powers of the chairman * * *"

It is noted that by reason of N.J.S.A. 40:48B-2.1(d) the joint meeting has power and authority:

"To do and perform any and all acts or things necessary, convenient or desirable for the purposes of the joint meeting or to carry out any powers expressly given in this act."

The limitation on the management committee in N.J.S.A. 40:48B-2.1 is that the management committee may exercise the power and authority of the joint meeting "to the extent provided in the joint contract." And the limitation, on both the management committee and joint meeting is "to do and perform any and all acts or things necessary, convenient or desirable for the purposes of the joint meeting or to carry out any powers expressly given in this act." Thus, the powers are limited by the standards set in this clause and by express grant.

A great measure of the work of the management committee is administrative rather than legislative. See Wagner v. Mayor, etc. City of Newark , 42 N.J. Super. 193, 213 (Law Div. 1956), reversed on other grounds, 24 N.J. 467 (1957). Even where the work is not administrative in nature, the statute authorizes a redelegation of power and sets sufficient standards.

Plaintiffs suggest that since the management committee may exercise the power and authority of the joint meeting, it may "enter into any and all contracts or agreements and to execute any and all instruments" without limitation. Obviously, the limitations are to be found in the act. The objects of the joint contract and the joint meeting are restricted; contracts must be signed and approved; costs are fixed in the contracts; and, lastly, "the management committee shall exercise all of the powers of the joint meeting subject to ...

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