For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J.
This action in lieu of prerogative writs seeks to compel the Township Committee of Dover Township to adopt a resolution consenting to the deannexation of West Point Island from the Township. Plaintiffs, the West Point Island Civic Association and three resident taxpayers, represent 90% of the registered voters and 74% of the landowners on the Island who have petitioned both Dover Township and the contiguous Borough of Lavallette pursuant to the procedure set forth in N.J.S.A. 40:43-26, in order that West Point Island may be detached from the former and annexed to the latter municipality.*fn1
On December 14, 1965, the defendant Township Committee denied plaintiffs' petition for passage of a resolution consenting to deannexation, saying without further explanation that "the annexation of West Point Island by the Borough of Lavallette would not be in the best interests of
all the people of the Township of Dover."*fn2 In the first stage of this action, the Law Division granted the defendant Township's motion for summary judgment, holding that N.J.S.A. 40:43-26 confers an absolute right upon the Township governing body to refuse to consent to the deannexation. The Appellate Division reversed, holding that the right to withhold consent is not absolute, but rather such consent must not be "unreasonably or arbitrarily withheld." The action was remanded to the trial court for a factual determination of reasonableness, since the sole rationale offered by the Township was a "mere conclusion." 93 N.J. Super. 206, 211. This court denied the Township's petition for certification. 48 N.J. 576 (1967).
Following a plenary hearing on the remand, Judge Martino held that the withholding of consent had not been based on reasonable grounds. He therefore ordered the Township to "affix its consent to the plaintiff's application." 97 N.J. Super. 549 (Law Div. 1967). The Appellate Division in an unreported opinion affirmed the trial court's finding as based on sufficient credible evidence, and we granted the Township's petition for certification. 53 N.J. 78 (1968).
Concerning the scope of our review on this appeal, the plaintiffs argue that the "law of the case" was established by our denial of certification in 48 N.J. 576, and thus we should be limited here to a review of the second Appellate Division conclusion that the trial court's findings were based on sufficient credible evidence. We disagree. Our denial of certification at an earlier stage of this action was not tantamount to an affirmance of the Appellate Division on the merits, nor can a denial of certification ever be interpreted in this way. Rather, it was an example of our traditional reluctance, except in extraordinary circumstances, to determine a case prior to a final judgment or the completion of a full record. We add that, in any event, a court is never irrevocably bound to abide by its prior ruling in the same case. We proceed, therefore, to a discussion of the merits of the controversy uninhibited by a predetermined "law of the case."
Dover Township occupies 44.03 square miles in Ocean County, and according to the 1960 census has a population of 17,414. Across Barnegat Bay which is east of the mainland of Dover Township lies West Point Island, one-half mile square. It is adjacent to the Borough of Lavallette, to the east of which is the Atlantic Ocean. The only means of access to the Island is a short bridge from Lavallette. Lavallette is one of numerous municipalities situated on the long bar of land which parallels the Ocean County mainland for several miles, and which is connected to the mainland by two bridges spanning the Bay. Originally Dover Township included much of this bar; its area there has already been fragmented by the carving out of Lavallette as a separate municipality in 1887. West Point Island is 7 I/2 miles from the business center of Dover Township by way of the nearest bridge, and one has to travel through Lavallette and the Borough of Seaside Heights, as well as the Township, to reach that center. The Island has a winter population of 84 residents, which is increased by over 2,000 during the summer months. There are about 235 homes on the Island, and
according to the 1965 tax valuations West Point Island constitutes 1.737% of Dover Township's total tax base.
The powers of a New Jersey municipality are wholly derivative from state statute. Wagner v. Mayor and Municipal Council of City of Newark, 24 N.J. 467, 474 (1957) The primary question in this case is the proper interpretation of the delegated statutory procedure under N.J.S.A. 40:43-26 which controls the deannexation of land in one municipality and its annexation to another. The statute (which is set forth in full in footnote 1) provides that land in one municipality of a county may be annexed to a contiguous municipality in the same county, provided that at least 60% of the legal voters in the deannexing area so express their wishes in a petition to be presented to the governing body of the annexing municipality. The petition, before it is presented to the annexing municipality, must be accompanied by "a resolution of the governing body of the municipality in which said land is located, consenting to said annexation, which resolution said governing body is hereby authorized and empowered to adopt. * * * The governing body of the municipality to which the land is sought to be annexed may, in its discretion, by ordinance adopted by a two-thirds vote, annex the land * * *."
Plaintiffs argue that the above quoted statutory language indicates a legislative intent to distinguish between the degree of discretionary power delegated to the deannexing and annexing municipalities. They point out that the municipality to which annexation is sought (Lavallette) may act in its discretion by ordinance, whereas the municipality in which the land is located (Dover Township) acts by resolution, with no specific grant of discretion. Plaintiffs therefore contend that the consent of Dover Township is a purely ministerial act which the Township Committee has no right to refuse once the petition is found to be in order. We cannot agree, for ...