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Hardy v. Ruhnke

Decided: April 4, 1966.


For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Hall, J.


The assertion in this appeal is that the statute under which the City of East Orange has been governed since January 1, 1964, Chapter 149 of the Laws of 1963, N.J.S.A. Acts Saved from Repeal 40:103-5(71) through (127), or at least certain provisions thereof, is a private, special or local law regulating the internal affairs of the city prohibited by N.J. Const. 1947, Art. IV, § VII, par. 9(13) or otherwise invalid. We are thoroughly satisfied that it is completely legal and effective in East Orange. To make the expression of our reasons clear, we should first sketch the background of the controversy.

By referendum in June 1908, the voters of the then City of East Orange adopted a new form of government created by Chapter 250 of the Laws of 1908, N.J.S.A. Acts Saved

from Repeal 40:103-5(1) through (52). From then until January 1, 1964, the city functioned under that statute. The 1908 act, which, with its amendments and supplements prior to 1963, we will hereafter refer to as Chapter 250, was not a special charter for East Orange, but rather by its express terms a general law available to any municipality in the State which might adopt it. It was one of a number of old general statutes providing for varying forms of city government which have retained their viability by being saved from repeal when the Revised Statutes were enacted in 1937. See N.J.S.A. Title 40, Subtitle 8, City Referendum Charter Acts, chapters 103 through 112.

The distinctive feature of the Chapter 250 form of government, so far as pertinent, was a combination of structural details. The governing body of the city was a council composed of two members from each ward having two-year terms. The terms were staggered, with one representative of each ward elected each year. The chief executive officer was the mayor, elected at large, likewise for a two-year term. These officials were selected on a partisan basis at the annual general election. The statute required actual residence in the city at the time of election for one to be eligible for these offices, but no period of antecedent residence was imposed. The chapter further optionally provided through additional referenda for appointive boards of water, police and fire commissioners having a very considerable amount of autonomy in the administration and day-to-day operation of these departments of government. See City of East Orange v. Board of Water Commissioners of East Orange, 40 N.J. 334 (1963). East Orange exercised this option and by 1963 these boards had been functioning for many years. Chapter 250 specified powers, duties, officers and procedures in great detail. It amounted to an inflexible, self-contained governmental blue print, not affected by general law. The result was that any change even in the minutiae of local government required an amendment or supplement of the basic statute. There were a goodly number of these over the years

(see the list contained in N.J.S.A. 40:103-5), the last before 1963 having been accomplished by L. 1960, c. 126, N.J.S.A. Acts Saved from Repeal 40:103-5(22.1) through (22.6). Although Chapter 250 required a favorable referendum vote before it could become effective in any city, it contained no provision requiring similar electoral approval with respect to amendments or supplements.

Prior to 1963 there was agitation in East Orange for some modernization of the city's government and of the underlying legislation. The upshot was the enactment of the statute in question as Chapter 149 of the laws of that year, N.J.S.A. Acts Saved from Repeal 40:103-5 (71) through (127), hereafter referred to as Chapter 149. Unquestionably it was sponsored by the mayor and council of the city and drafted in large part by its law department, but this fact has no bearing on its validity. It is on its face a general law, denominated a supplement to Chapter 250, and was passed as such. Cf. N.J. Const. 1947, Art. IV, § 7, par. 10. In fact, it is a thorough revision of Chapter 250 complete within itself, retaining, however, the identical governmental structure -- a mayor and ward councilmen, with essentially the same functions, elected on a partisan basis at the general election, and the three boards to administer the water, police and fire departments. The fundamental changes made from Chapter 250 were the deletion of the many rigid and detailed provisions meticulously specifying and limiting powers, duties, officers and procedures, the substitution of broad and general concepts therefor, the incorporation of general law and the inclusion of many additional modern governmental features. In many aspects the chapter followed the approach and general format of the Optional Municipal Charter Law of 1950 (Faulkner Act), N.J.S.A. 40:69A-1, et seq.

With particular reference to the controversy before us, Chapter 149 provided for four instead of two year terms for the mayor and councilmen, on a staggered two-year basis for councilmen. It specified that they were to be elected at general elections in which members of the state assembly are

elected, so that no municipal official would be chosen when national officials were selected. This would result in municipal elections being held biennially instead of annually. It also required two years residence in the city as of the time of election for the mayor and members of the council as well as residence of one year in the ward which a councilman was to represent.

Despite its form as a supplement, Chapter 149 amounts to an entirely new enactment -- a new pattern of city government designed to be available to municipalities governed by other forms as well as those then or thereafter functioning under Chapter 250. The latter chapter remained untouched for continued use by cities then utilizing it and for municipalities operating under other forms which might later choose to adopt it. So section 56 of Chapter 149, N.J.S.A. Acts Saved from Repeal 40:103-5(126), provided that it should not become operative in any city until the voters thereof adopted it by referendum.*fn1

The transition provisions of Chapter 149 give rise to the principal issue in this case. They are found in section 56(a) and (b). The two subsections distinguish as to time and method of ...

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