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Wright v. Village of South Orange

Decided: May 3, 1963.


Goldmann, Freund and Foley. The opinion of the court was delivered by Goldmann, S.j.a.d.


Plaintiffs appeal from a Law Division order granting defendants' motion for summary judgment.

Plaintiffs are registered voters and taxpayers of the Village of South Orange. On June 18, 1962 the village governing body adopted an ordinance authorizing the construction of a new library and providing for a bond issue to finance its cost. The ordinance was first published on June 21, 1962. Thereafter a petition protesting the ordinance, signed by plaintiffs and 3,461 other alleged registered voters of the municipality, was presented to the village clerk on July 9, 1962 for filing and processing under N.J.S.A. 40:69A-184 et seq. , and "other Statutes made and provided for." The clerk refused to accept the petition.

Plaintiffs then brought a proceeding in lieu of prerogative writs to compel the clerk to file and process the petition and to stay all actions and proceedings based upon the ordinance until further order of the court. Defendants answered, setting up as defenses that all their acts were in accordance with law and the petition insufficient to accomplish a referendum.

They then moved for summary judgment, which the Law Division judge, after oral opinion, granted.


Plaintiffs claim, contrary to the conclusion reached by the Law Division judge, that N.J.S.A. 40:69A-184 to 196, inclusive, part of what is commonly called the Faulkner Act (L. 1950, c. 210, as amended; N.J.S.A. 40:69A-1 et seq.) applies to municipalities generally, including defendant Village of South Orange. This question was raised in Paolella v. Mayor, etc. of Hackensack , 76 N.J. Super. 86 (Law Div. 1962), where the temporarily assigned County Court judge in a brief opinion held that the cited sections of the Faulkner Act, entitled "Initiative and Referendum," were limited to municipalities organized under that act. Plaintiffs claim that Paolella should be reconsidered because it had not adequately dealt with the issue they raise.

South Orange has continuously operated under a charter granted in 1869. The Faulkner Act was adopted in 1950. It is a fully implemented piece of legislation, providing for charter studies and for the adoption by the voters of a municipality of any one of 15 forms of government set out in the act. Its title clearly expresses the purpose and aim of the legislation: "An Act concerning municipalities, providing a plan of optional charters and for the manner of adoption and effect thereof." The last section of the act, N.J.S.A. 40:69A-210, confirms the purport of the title, the Legislature there declaring that "This act shall be known as the Optional Municipal Charter Law." As the trial judge pointed out, a reading of the act as a whole, as well as an examination of its many sections, reveals it to be a completely integrated effort to carry its expressed purposes into effect.

Plaintiffs, however, contend that the title of the Faulkner Act is broad enough to permit of the application of its pertinent sections to municipalities generally. In support of this thesis they quote the first four words of the title, "An Act

concerning municipalities," but make no mention of what follows. They rely upon Public Service Electric & Gas Co. v. Camden , 118 N.J.L. 245 (Sup. Ct. 1937), but that case dealt with the Home Rule Act, L. 1917, c. 152, entitled "An Act concerning municipalities." The court there held that "under such a title the legislature would be likely to deal with the whole subject of municipal power, authority and duty" (at page 251), and that the Home Rule Act "charts the general field of municipal activity, and delimits the powers and duties of its local agencies" (at page 252). Thus, the title of the act related to a single subject and did not violate Article IV, Section VII, paragraph 4 of the 1844 State Constitution. The Public Service case does not support the extreme contention plaintiffs advance. Indeed, Bucino v. Malone , 12 N.J. 330 (1953), which upheld the Faulkner Act in the face of a broadside attack upon its constitutionality, is persuasive authority holding the contrary of plaintiffs' position.

N.J.S.A. 40:69A-184 to 196, inclusive, upon which plaintiffs rely, will be found under Article 17 of the Faulkner Act, which bears the heading "Additional Provisions Common to Optional Plans." Here, again, there is reference to the optional plan theme of the act. Nonetheless, plaintiffs, anticipating that defendants would emphasize this feature, argue that close examination of the several sections appearing in Article 17 demonstrates that the heading is "a loose, convenient, catch-all which is not quite accurate," and this for the reason that certain of the sections are limited to "only some of the optional plans." From this they draw the conclusion that "Once the wording of the heading is revealed for the inaccuracies in one direction, its inaccuracies in the opposite direction are more easily accepted." It follows -- so runs the argument -- that the reach of the initiative and referendum sections, ...

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