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Broadway National Bank of Bayonne v. Parking Authority

Decided: August 2, 1962.

THE BROADWAY NATIONAL BANK OF BAYONNE, A NATIONAL BANKING INSTITUTION, PLAINTIFF,
v.
THE PARKING AUTHORITY OF THE CITY OF BAYONNE, AND VINCENT BURKE, FRANK CARPENTER, SR., JACOB DROGIN, WALTER P. PAGUREK, ALAN F. PAUL, AND JAMES GARITO, ALAN KONIECZKO, SAMUEL LEVIS AND CHESTER ZEBROWSKI, DEFENDANTS. VINCENT BURKE, FRANK CARPENTER, SR., JACOB DROGIN AND WALTER P. PAGUREK, PLAINTIFFS, V. JAMES GARITO, ALAN KONIECZKO, SAMUEL LEVIS, CHESTER ZEBROWSKI, ALLEGED COMMISSIONERS OF THE PARKING AUTHORITY OF THE CITY OF BAYONNE; FRANCIS G. FITZPATRICK, ALFRED DWORZANSKI, WILLIAM MARTIN, JOSEPH LE FANTE, DENNIS COLLINS AND JOSEPH MAKOWSKI, MEMBERS OF THE GOVERNING BODY OF THE CITY OF BAYONNE, DEFENDANTS



Furman, J.s.c.

Furman

[76 NJSuper Page 140] Two actions are before the court. The Broadway National Bank of Bayonne has filed a complaint in interpleader against the Parking Authority of the City of Bayonne, Vincent Burke, Frank Carpenter, Sr.,

Jacob Drogin, Walter P. Pagurek, Alan F. Paul, James Garito, Alan Konieczko, Samuel Levis and Chester Zebrowski. By an order to show cause returnable today the plaintiff bank seeks an order of this court directing it to pay into court the bank account standing to the credit of the Parking Authority of the City of Bayonne, discharging the plaintiff bank from any liability to the defendants or any one of them, and directing the defendants to interplead their right and title to the Parking Authority bank account. Garito, Konieczko, Levis and Zebrowski have moved for a judgment dismissing the interpleader action and directing the plaintiff bank to turn over to them the funds held in the Parking Authority bank account in the Broadway National Bank of Bayonne.

The second pending action is a prerogative writ action instituted by Burke, Carpenter, Drogin and Pagurek against Garito, Konieczko, Levis and Zebrowski and the mayor and members of the Council of the City of Bayonne. By order to show cause in this action returnable today the plaintiffs seek a judgment enjoining defendants from interfering with their terms of office and their legal authority and adjudicating which individuals constitute the commissioners of the Parking Authority of the City of Bayonne. Defendants Garito, Konieczko, Levis and Zebrowski have moved for summary judgment in the prerogative writ action.

The facts are undisputed. The City of Bayonne was governed by a board of commissioners in accordance with the Walsh Act until July 1, 1962. The board of commissioners enacted an ordinance creating the Parking Authority of the City of Bayonne on December 17, 1958. Burke, Carpenter, Pagurek, Drogin and Paul were appointed as commissioners and Burke, Carpenter and Pagurek were subsequently reappointed for five-year terms pursuant to N.J.S.A. 40:11A-4. Mayor-Council Plan C of the Faulkner Act (N.J.S.A. 40:69A-1 et seq.) was adopted by referendum in the City of Bayonne and took effect on July 1, 1962. The new municipal council appointed Garito,

Konieczko, Paul, Levis and Zebrowski as commissioners of the Parking Authority of the City of Bayonne on July 16, 1962. Paul is thus a commissioner of the Parking Authority by appointment of the former board of commissioners and of the present governing body. Burke, Carpenter, Pagurek and Drogin claim that they have valid continuing terms as commissioners of the Parking Authority. Garito, Konieczko, Levis and Zebrowski contend that the terms of the previous commissioners ceased and determined on the effective date of the Faulkner Act in the City of Bayonne and that their own subsequent appointments filled vacancies in the five offices of commissioners of the Parking Authority. No ordinance was adopted by the incoming municipal council reestablishing the Parking Authority on or after July 1, 1962. An interim resolution creating a Parking Authority was adopted on July 25, 1962. The Broadway National Bank of Bayonne has brought suit for interpleader to protect itself in the face of claims by both the "old" commissioners and the "new" commissioners that they constitute the legal and authorized Parking Authority of the City of Bayonne.

The ultimate legal issue will be determined here today. The Faulkner Act has as one of its basic objectives a free hand for a newly formed municipal government in the selection of its officers and personnel. The mayor and council, referring to a Plan C municipality, hold in general the appointive authority over officers and employees, unhampered by holdover boards and agencies. To effectuate this intent N.J.S.A. 40:69A-207 provides:

"At 12 o'clock noon on the effective date of an optional plan adopted pursuant to this act, all offices then existing in such municipality shall be abolished and the terms of all elected and appointed officers shall immediately cease and determine; provided, that nothing in this section shall be construed to abolish the office or terminate the term of office of any member of the board of education, trustees of the free public library, commissioners of a local housing authority, municipal magistrates or of any official or employee now protected by any tenure of office law, or of any

policeman, fireman, teacher, principal or school superintendent whether or not protected by a tenure of office law."

The Faulkner Act in another section, N.J.S.A. 40:69A-26, refers to general law as controlling in a charter form of government unless inconsistent with the Faulkner Act, but subject to the transition provisions of the Faulkner Act, including N.J.S.A. 40:69A-207.

The Supreme Court has construed N.J.S.A. 40:69A-207 in Myers v. Cedar Grove Tp. , 36 N.J. 51 (1961), ruling that the offices of members of a municipal board of health, and consequently the board of health itself, are abolished upon the establishment of a Faulkner Act form of government. Justice Proctor wrote for the court, at page 60:

"A board cannot exist when its constituent parts -- all of its offices -- are abolished. Certainly the Legislature never intended the anomalous situation of retaining boards without offices. And we do not agree that the offices are abolished subject to re-establishment by municipal ordinance. * * *"

Cf. Istvan v. Naar , 84 N.J.L. 113 (Sup. Ct. 1913).

Significant differences exist, however, between a board of health, which is in all respects a component and subordinate arm of a municipal government, and a parking authority, which is a separate corporate entity with autonomous functions, inter alia , in incurring bonded indebtednesses and raising revenues. The statutory nature of the parking authority must be analyzed in detail, therefore, in order to determine whether the office of commissioner is an office existing in a municipality subject to abolishment, ...


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