[131 NJSuper Page 592] This matter came on for hearing before the court. At that time the parties agreed that the matter be decided on the basis of the factual allegations included in the pleadings and briefs.
On October 7, 1974 the Courier Post, a Southern New Jersey newspaper, published a special supplement to its regular daily edition. The theme of this supplement was industry and economic development in the greater Camden County area. Appearing in this special supplement was an advertisement elucidating the advantages and programs that defendant Township of Pennsauken (hereinafter township) provided for industry and industrial related personnel. The name of the mayor of the township, Manrico D'Anastasio, also a defendant herein, appeared in the advertisement naming him as the innovator of one of the aforementioned programs.
Plaintiff, a taxpayer and candidate for public office in the township, brought this action in lieu of prerogative writs seeking to enjoin the township, its mayor and several other township officials (all named defendants) from using funds from the township treasury in order to pay for the advertisement.
Plaintiff bases his complaint on two grounds, (1) that an expenditure for such an advertisement would not come within the purview of any appropriation included within the township's budget and therefore if the township were to expend any monies for such a purpose it would act in violation of N.J.S.A. 40A:4-57, and (2) that the advertisement constituted a "political advertisement," in violation of N.J.S.A. 19:1-1 et seq., since the advertisement was published approximately one month before the township elections in which the mayor, whose name did appear in the advertisement, was a candidate for reelection.
Defendants admit that the advertisement was published but contend that no violation of law was involved. By way of counterclaim all defendants seek costs, claiming that plaintiff acted in bad faith by instituting this action. Defendant D'Anastasio further counterclaims for damages on the basis of libel.
The major issue in this case and the most difficult one to decide in light of the scarcity of decisions on this point
is whether defendants have violated any provision of the New Jersey Local Budget Law, N.J.S.A. 40A:4-1 et seq., specifically N.J.S.A. 40A:4-57, which provides in part:
No officer, board, body or commission shall, during any fiscal year, expend any money (except to pay notes, bonds or interest thereon) incur any liability, or enter into any contract which by its terms involves the expenditure of money for any purpose for which no appropriation is provided, or in excess of the amount appropriated for such purpose.
It is plaintiff's contention that there is no specific appropriation in the township's budget which would allow for the expenditure of monies for the advertisement.
The township's budget consists of several general categorized appropriations or line items, each of which is further delineated into many specific items. The cost of the advertising was to be charged to "stationery, printing and supplies," which was a specific item included within the general category "Administrative and Executive-Other Expenses." Defendants recognize that there is a legitimate question as to whether the expenditure actually does relate to the specific category to which it was charged, but contend and are not contested that the expense is one which could have properly been included within the general account.
Plaintiff argues that since the township did attempt to itemize specific expenditures within a general category, it is bound by those specifics and may not now ...