Margolis, J.s.c., Temporarily Assigned.
In this action in lieu of prerogative writs plaintiffs Essex County Mayors' Conference et al. seek by way of summary judgment to compel defendant Board of Chosen Freeholders of the County of Essex (hereinafter freeholders) to file with defendant Nicholas V. Caputo, Essex County Clerk (hereinafter county clerk), resolution No. 30643 (hereinafter Rotundo Resolution), dated September 28, 1972 and adopted pursuant to N.J.S.A. 40:41A-1 et seq. , commonly known as the Optional County Charter Law.
The facts appear to be uncontroverted, The Rotundo Resolution, entitled "Optional County Charter Law -- Authorizing Charter Study Election November 6, 1973," in fact authorized an election to be held in Essex County on November 6, 1973 upon the question:
Shall a charter study commission be elected to study the present governmental structure of Essex County, to consider and make findings concerning the form of county government and to make recommendations thereon?
The resolution, as pertinent, states:
WHEREAS, the Essex County Board of Chosen Freeholders has demonstrated a sincere and effective desire in 1971 and 1972 to update Essex County Government * * *
WHEREAS, the Board overwhelmingly desires to avail itself of the best and most economic procedure to give to the voters of Essex County an opportunity to review their County Government; and to determine whether the County Government could be strengthened, made more clearly responsive or accountable to the people and whether its operation could be more economic or efficient under a changed form of Government; and
WHEREAS, such review cannot by the terms of P.L. 1972, c. 154 be initiated at the coming General Election of November 7, 1972 because not less than 60 days must elapse before an election can be held to initiate such review; now, therefore, be it
RESOLVED, that subject to any future amended procedure more economic and effective than that presently provided in the Optional
County Charter Law, the Board hereby authorizes an election to be held at the first General Election available under the law, which will be on November 6, 1973 in Essex County upon the question: 'Shall a charter study commission be elected to study the present governmental structure of Essex County, to consider and make findings concerning the form of County Government and to make recommendations thereon?'"
This resolution was adopted by the affirmative vote of eight of the nine members of the board, one member being absent; was presented to and approved by the county supervisor on October 2, 1972, and was filed with the clerk of the freeholders on the same date after having been approved as to form and legality by county counsel.
On the same day (September 28, 1972), following the passage of the Rotundo resolution, freeholders were requested to act upon a subsequent resolution (No. 30644) entitled "Optional County Charter Law -- Implementation of Charter Study" (hereinafter Hausmann resolution), the pertinent provisions of which read as follows:
WHEREAS, Essex County with its complexity of social, financial and governmental problems is more in need of better tools of government than any other county in New Jersey; now, therefore, be it
RESOLVED, that the Essex County Board of Chosen Freeholders immediately take the action required under Senate Bill 283 to implement a charter study for Essex County.
This resolution received only two affirmative votes, with six freeholders not voting, and was therefore defeated.
Freeholders have conceded at oral argument that the Rotundo resolution was thereafter "deliberately" not filed with the county clerk, as provided in the enabling statute. Thus, as the situation now stands, the proposed question of county charter study would not appear on the ballot at the general election of November 6, 1973.
Plaintiffs filed this action on May 30, 1973 by verified complaint, and on plaintiffs' application this court ordered freeholders to show cause on June 8, 1973: (1) why the Rotundo resolution should not be filed with the county clerk,
and (2) why the aforesaid question should not be placed on the ballot at the election to be held on November 6, 1973. However, this court declined to restrain or enjoin freeholders from rescinding or taking any other steps to avoid or nullify the resolution. To the knowledge of this court, ...