For affirmance -- Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- Chief Justice Weintraub, and Justice Haneman. The opinion of the court was delivered by Proctor, J. Weintraub, C.J. and Haneman, J. (dissenting).
The sole issue on this appeal is whether the terms of office of members of a municipal utilities authority, created by a municipality pursuant to the Municipal Utilities Authorities Law, L. 1957, c. 183, N.J.S.A. 40:14B-1 et seq., terminate on the effective date of a new plan of government adopted by the municipality under the Optional Municipal Charter Law, L. 1950, c. 210, N.J.S.A. 40:69A-1 et seq. (Faulkner Act).
The facts are not in dispute. On October 7, 1957 the Township of Willingboro, which was then governed by a
township committee, enacted an ordinance reorganizing its sewerage authority and creating the Willingboro Municipal Utilities Authority pursuant to the Municipal Utilities Authorities Law, supra, N.J.S.A. 40:14B-6. Thereafter, members were duly appointed to the Authority, bonds were issued by it, and the normal functions of such an authority were undertaken. Following the change in name of the township from Willingboro to Levittown, the Authority was redesignated the Levittown Municipal Utilities Authority.
On January 1, 1962 Council-Manager Plan E, one of the optional plans of government under the Faulkner Act (N.J.S.A. 40:69A-114.1 to 114.5), became effective in the township pursuant to a referendum previously adopted. On January 8, 1962 the new municipal council by resolution appointed the defendants Harrigle, Cuspilich, Gordon, Fitzgibbon and Applegate as members of the Authority. They were appointed to replace others, including the plaintiff Brandau, who held the offices prior to January 1, 1962. Brandau had been appointed as a member of the Authority on February 1, 1961, for a term of five years, and he contests the right of office of the defendant Fitzgibbon, who was appointed as his successor. The plaintiff Jordan, as a taxpayer, seeks to invalidate the resolution of the defendant council by which the above-named defendants were appointed. At the time the action was commenced, the Authority had outstanding bonds in the amount of $210,000.
The plaintiffs contend that the members of the Authority who held office prior to January 1, 1962, continued to be the legal members of the Authority until the expiration of their appointed terms, and that the resolution of the new council purporting to appoint the above-named defendants was a nullity. The defendants contend that the terms of office of all members of the Authority came to an end on January 1, 1962, by operation of N.J.S.A. 40:69A-207 of the Faulkner Act, which became effective in the township on that date, and that the new appointees are the legal members of the Authority.
On cross motions for summary judgment, the trial court held that though "the structure of the authority is in no sense altered or modified," the terms of office of the members were terminated on the effective date of the new plan of government by operation of N.J.S.A. 40:69A-207. Jordan v. Zidel, 75 N.J. Super. 553, 559 (Law Div. 1962). Judgment was accordingly entered for the defendants. We certified the plaintiffs' ensuing appeal while it was pending in the Appellate Division.
We think the judgment of the trial court must be affirmed under the principles set forth in Broadway National Bank of Bayonne v. Parking Authority of the City of Bayonne, 40 N.J. 227 (1963) (Broadway), decided today. In that case we held that the terms of office of commissioners of a parking authority created by a municipality pursuant to the Parking Authority Law, N.J.S.A. 40:11A-1 et seq., terminate by operation of N.J.S.A. 40:69A-207 on the effective date of a new plan of government adopted by the municipality under the Faulkner Act. The pertinent part of N.J.S.A. 40:69A-207 is as follows:
"At 12 o'clock noon on the effective date of an optional plan adopted pursuant to this act, * * * the terms of all elected and appointed officers shall immediately cease and determine; * * *."
We find no basis for distinguishing between the terms of office of commissioners of a parking authority and the terms of office of members of a municipal utilities authority.
Just as the Parking Authority Law permits a municipality to create a separate corporate entity as its instrumentality to perform the municipal function of alleviating traffic congestion by providing off-street parking facilities, so also does the Municipal Utilities Authorities Law permit the municipality to create a similar independent entity to provide municipal water and sewer services. In each case the authority so created is a separate body politic and corporate and a ...