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O''Keefe v. Dunn

Decided: November 10, 1965.


Civil action. In lieu of prerogative writs.

Feller, J.s.c.


This is an action in lieu of prerogative writs in which plaintiff, a member of city council, challenges the right of defendant mayor of the City of Elizabeth, to veto his appointment by city council to the local housing authority. Defendants filed a counterclaim in which they assert that by law plaintiff, as a member of city council, is ineligible for appointment to the office of housing authority commissioner.

Plaintiff was appointed to the City Housing Authority by resolution of the city council on August 10, 1965 by a vote of 8-0. The resolution was submitted to the mayor after the meeting at which the appointment was made. On August 19, 1965 the mayor returned the resolution to the city council marked "disapproved." In an accompanying letter he set out his reasons for the disapproval which, for all intents and

purposes, was a veto. On August 24, 1965, with four members excused from voting, the mayor's veto was sustained.

Plaintiff thereafter applied for and obtained an order on September 14, 1965, restraining defendants from nominating or appointing any other person as a member of the authority. On September 17, 1965 plaintiff was restrained from attempting to exercise the duties of a commissioner pending the final outcome of this litigation. The contending parties have presented for consideration several interesting legal questions in this matter.

Plaintiff makes two assertions in support of his position. First, he asserts that the Faulkner Act, under which the City of Elizabeth is governed, does not authorize a mayor to veto a resolution of appointment by the council. With respect to defendants' counterclaim, plaintiff's second assertion is that a member of the city council is eligible for appointment to the Housing Authority of the City.

In response, defendants claim that under the Faulkner Act and its incorporation of general law applicable to all municipalities, the mayor has the power to veto resolutions adopted by city council. In support of their counterclaim they contend that by virtue of R.S. 40:46-5 a member of a governing body is ineligible for appointment as commissioner of a local housing authority.


Consideration of the Faulkner Act as applied to the City of Elizabeth is appropriate. The city established a charter commission to review the need for a new form of city government. In 1959 this commission presented its findings and recommended that the city put to the voters the following proposition:

"Shall Mayor-Council Plan F of the Optional Municipal Charter Law, providing for a division of the municipality into six wards, with nine councilmen (one to be elected from each ward and three to be elected at large), be adopted by the City of Elizabeth."

It should be noted that Plan F of the Optional Municipal Charter Law mentioned in the above proposition can be found in the statutory capitulation, Title 40. More specifically, N.J.S.A. 40:69A-74 through 80 describes and specifies the laws applicable to the Mayor-Council Plan F form of government.

The aforementioned proposition was put to the voters and they approved it at a proper election. Thereafter, the City of Elizabeth was to be governed by Plan F and the applicable state statutes specifying the duties and rights under such a form of government.

One of the rights, and therefore duties, of the mayor under the Plan F form of government is that of the veto or approval of ordinances. N.J.S.A. 40:69A-41, which provides:

"40:69A-41. Approval or veto of ordinances; attending meetings

(a) Ordinances adopted by the council shall be submitted to the mayor, and he shall within ten days after receiving any ordinance, either approve the ordinance by affixing his signature thereto or return it to the council by delivering it to the municipal clerk together with a statement setting forth his objections thereto or to any item or part thereof. No ordinance or any item or part thereof shall take effect without the mayor's approval, unless the mayor fails to return an ordinance to the council within ten days after it has been presented to him, or unless council upon reconsideration thereof on or after the third day following its return by the mayor shall by a vote of two-thirds of the members resolve to override the mayor's veto.

(b) The mayor may attend meetings of council and may take part in discussions of council but shall have no vote except in the case of a tie on the question of filling a vacancy in the council, in which case he may cast the deciding vote."

It is significant that the statute provides for the veto power to be exercised only with respect to ordinances. The term "resolution" is conspicuously absent. What effect does this have on the mayor's power to veto?

It is plaintiff's assertion that the Legislature, in leaving out the term "resolution," intended that the mayor's veto power should extend to ordinances only. In support he cites Rhyne, Municipal Law, p. 230 (1957) and 2 Dillon, Municipal Corporations (5 th ed.), § 578. Both of these

authorities agree that in the absence of a specific delegation of veto power to the mayor, he would have no such power. In the statute quoted above the word "ordinances" appears, but not the word "resolutions." Does this mean that the mayor has no veto power over "resolutions"?

The mayor has veto power only when and to the extent that it is given him by law, and this power cannot be enlarged by construction. His power to approve or veto actions of the municipal legislative body is legislative in nature. That being so, the veto power of a mayor extends only to legislative and not to judicial or administrative actions of the governing body. The veto power is expressed as extending to measures or resolutions of the local legislative body, but in this connection measures or resolutions usually are construed to mean actions of a legislative rather than administrative nature.

The question of whether an action is legislative or administrative so as to govern the application of the veto power has arisen frequently in regard to the action of a council in electing or appointing officers. The majority of courts appears to favor the view that the council's action is not legislative but administrative, and not subject to veto unless provided for in a particular statute or charter provision. 5 McQuillin, Municipal Corporations, § 16.42, pp. 232, 233, 234.

Woodhull v. Manahan, 85 N.J. Super. 157 (App. Div. 1964), affirmed 43 N.J. 445 (1964), states that a resolution, in effect, encompasses all actions of a municipal body other than ordinances. It is to be assumed that the distinction so enunciated has some basis. Certainly, it is frequently stated that the term "ordinances" encompasses matters which are legislative in character, while "resolutions" refer to administrative or procedural matters. Ibid., p. 164; McQuillin, op. cit.

Defendants recognize that N.J.S.A. 40:69A-41 uses only the term "ordinances" and that this term does not embrace actions taken by the council by resolution. However, they contend that this provision in the Faulkner Act is not the sole guide as to the scope of the mayor's veto power. In support

of this contention, defendants point to N.J.S.A. 40:69A-26, part of the ...

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