Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Collester, J.A.D.
The defendant, Borough of Demarest, appeals from a judgment of the Law Division declaring invalid an ordinance fixing the salaries of members of the police department of said borough and providing for a referendum vote thereon, and ordering the referendum question provided for by said ordinance removed from the ballot at the next general election.
On July 8, 1963 plaintiffs, pursuant to R.S. 40:46-28, filed with the governing body of the borough a petition, bearing the signatures of 20 per cent of the legal voters of the municipality, requesting that there be submitted to the voters at the next general election the question of increasing the salaries of members of the police department. The petition listed the increases proposed for the several police positions to commence on January 1, 1964. (Plaintiffs also filed a petition for a referendum vote on the question of whether or not the borough should furnish a medical-surgical hospitalization plan for members of said department commencing
January 1, 1964. This proposal is in no way involved in the present appeal.)
Thereafter it was discovered there was error in the petition for salary increases in its recital of the existing salaries of members of the police department. Plaintiffs circulated a second petition for salary increases correcting said mistakes, and having again obtained the required percentage of signatures, filed the same with the governing body on July 30, 1963. This petition called for a $600 increase for every position, except that it made no mention of the position of sergeant.
Meanwhile, on July 24, 1963 the municipal council of said borough introduced an ordinance to submit to a referendum vote a schedule of salary increases for members of the police department at lesser amounts. The ordinance was adopted by the governing body on August 21, 1963.
The three questions relating to salary increases, respectively projected by the two petitions and the borough council's own ordinance were forwarded to the Clerk of Bergen County with a request that such questions be placed on the ballot for the forthcoming general election to be held November 5, 1963. Plaintiffs thereupon instituted an action in lieu of prerogative writs for a judgment declaring the ordinance adopted by the municipality to be null and void, and directing the County Clerk to remove from the ballot the salary question adopted under the ordinance and in its stead to place on the ballot the salary question as "proposed by the petition." (Apparently the second petition was meant.)
At the hearing in the Law Division the judge declared the ordinance invalid and ordered that it be removed from the ballot of the next general election; ordered the referendum question submitted in the first salary petition filed on July 8, 1963, and containing incorrect statements as to existing salaries, removed from the ballot; and further ordered that the only questions to be placed on the ballot at the election were the salary increases proposed in the petition filed by plaintiffs on July 30, 1963 and the proposed
medical-surgical hospitalization plan for members of the police department. The defendant borough appeals from said judgment.
At oral argument it was conceded by the parties that the question of whether the borough would furnish a medical-surgical hospitalization plan for members of the police department, as submitted by a petition of the plaintiffs, should be placed on the ballot, as should the salary increase proposal contained in the July 30, 1963 petition. It was also stipulated that the petition for salary increases containing incorrect references to existing salaries, filed on July 8, 1963, should not be placed on the ballot. It was agreed that the single issue for determination on this appeal is whether the police salary increases proposed under the ordinance can and should also be placed on the ballot.
It appears from the record that every second year for the past 10 years the governing body of Demarest has adopted an ordinance providing for a referendum vote on salary increases for members of the police department and ...