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Batistich v. Brennan

Decided: October 4, 1965.

ANDREW F. BATISTICH, PLAINTIFF-RESPONDENT,
v.
MARTIN BRENNAN, CLERK OF THE CITY OF HOBOKEN, ET AL., DEFENDANTS, AND LOUIS DEPASCALE, ET AL., DEFENDANTS-APPELLANTS, AND EDWARD J. BORRONE, ET AL., DEFENDANTS-RESPONDENTS



For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. Haneman, J. (concurring).

Per Curiam

The trial court held that L. 1956, c. 24 (N.J.S.A. 40:69A-161.1) was invalid because it was not enacted in accordance with the constitutional command relating to the enactment of a special or local law regulating the internal affairs of municipalities. Art. IV, sec. VII, pars. 7, 8, 9 and 10. The Appellate Division agreed, 88 N.J. Super. 84 (1965), and the appeal from its judgment comes to us as of right. R.R. 1:2-1(a).

The Optional Municipal Charter Law (popularly known as the Faulkner Act) comprehensively provides 15 plans of local government and leaves the adoption of any of them to local option. Under five of these plans elections are on a partisan basis, candidates for the final election being selected at a primary, while in the remaining ten plans the elections are nonpartisan. As to nonpartisan elections there is no primary but instead the statute calls for run-off elections if the majority vote described in N.J.S.A. 40:69A-160 and 161 is not obtained in the municipal election. The only nonpartisan plans excepted from the run-off provision were Small Municipal

Plan A, N.J.S.A. 40:69A-115-132, and Small Municipal Plan B, N.J.S.A. 40:69A-133-138. The reason for their exclusion is evident enough.

The statute here involved purported to amend the run-off provision to exclude therefrom two of the remaining nonpartisan plans. At the time of its adoption only Hoboken was governed by one of the two plans and only Vineland was governed by the other plan. Thus the immediate impact of the statute, if accorded retroactive application, was to amend the plans operative in those two municipalities alone.

As the Appellate Division noted, no one is able to discern a relevant difference between the nonpartisan plans thus excluded from the run-off provision and the nonpartisan plans which would remain within it. Before us appellants made the same concession but maintained that nonetheless the statute is a general law. Stressing the continuing power in the Legislature to alter or abolish existing plans of government, the appellants suggest the statute should be deemed to do no more than to create two additional optional plans of government under which the voters of a municipality could choose a nonpartisan plan without the burden of a run-off election. If the statute operated prospectively only, the power of the Legislature to offer that further choice by a statute adopted as a general law could not be denied. Indeed the statute here in question must be accorded that future operative effect. But when it is sought to read the statute to convert the plans theretofore adopted by two municipalities into the new plan innovated, as appellants suggest, by the statute in question, then the issue is whether a statute effecting such alteration of those plans can be anything but special or local when other nonpartisan plans, concededly indistinguishable in this regard, are spared the same alteration. In other words, the power of the Legislature to abolish the run-off election under the Faulkner Act must be exercised by a law which is general in character. Whether a law is general or special must be judged in the context in which it operates. Here the amendatory statute, insofar as retroactive application goes,

would affect only the nonpartisan plans of some municipalities while leaving undisturbed indistinguishable nonpartisan Faulkner Act plans in other municipalities. It is this operative impact which gives the statute a special or local character and brings the measure within the provisions of the Constitution specifying the manner and mode in which the Legislature must proceed if it wishes to exercise its power to legislate with such special or local effect.

Judgment is affirmed. No costs.

HANEMAN, J. (concurring). L. 1956, c. 24 changed the election procedure in two of the 15 plans of municipal government provided by the Faulkner Act, N.J.S.A. 40:69A-1 et seq. The question with which we are concerned is whether the change provided by the statute is constitutional under Art. IV, sec. VII, pars. 7, 8, 9 and 10 of the New Jersey Constitution.

The Faulkner Act plans are applicable to all municipalities of the State by their individual selection at a referendum, subject only to the population requirement found in some of the plans. In Bucino v. Malone, 12 N.J. 330 (1953), this Court said, concerning the constitutionality of the act generally, at p. 342:

"The optional plans under the Faulkner Act are available to all municipalities in general. The fact that the voters of all municipalities do not adopt the same plan does not mean that a special or local law has been enacted in each case. The Legislature has enacted a general law. The action taken by the people under it through their ...


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