Carton, Crane and Kole. The opinion of the court was delivered by Carton, P.J.A.D.
[134 NJSuper Page 291] Plaintiff brought this action as a taxpayer to compel defendant municipal officials to conduct a referendum on a bond ordinance and to restrain the award of contracts to make the improvements authorized by the ordinance. The trial judge granted summary judgment in
favor of defendants and plaintiff appealed. This court denied his motion for a stay of judgment. However, in view of the emergent situation and the nature of the issue involved, we accelerated determination of the appeal.
The challenged bond ordinance is a multi-purpose one, authorizing several improvements, including the construction of a new municipal complex to house administrative offices, the police department and the local ambulance corps; construction of an addition to a fire house; the making of various road improvements, and the purchase of equipment. There is no claim that the ordinance was improperly adopted.
Final publication of the ordinance occurred on September 19, 1974. However, on September 27, eight days after final publication, a petition designated as a "taxpayers' petition," protesting adoption of the ordinance, was filed with the township clerk.
Plaintiff, in his complaint, designates himself as a "taxpayer" and claims that the petition contained 989 names, including his own, and that such signatures represent ownership of property having an assessed value of $19,759,960. The petition contained no reference to the statute pursuant to which it was filed, or affidavits from petition circulators attesting to the authenticity of signatures, and no specific request for a referendum beyond the statement of protest.
On October 10 defendant township clerk certified to the township council that the petition was invalid and notified plaintiff of her finding. Also on October 10, at a public meeting, the mayor and council, after receiving opinions that the petition was invalid, awarded contracts to low bidders on three of the projects. We are informed that work was begun under at least one of these contracts, but it has been discontinued pending the outcome of this litigation. In this connection we note that plaintiff did not seek certification of our refusal to grant a stay of the judgment.
The trial judge, in granting summary judgment for defendants, found that plaintiff lacked standing to prosecute
the complaint for the reason that he owned no real property in the municipality. (It seems to be conceded that Retz had in 1963 conveyed his property to C.S.R. Realty Corporation of which he claimed to be a major stockholder.) The judge further found that the protest petition failed to satisfy the provisions of the Optional Charter Law (Faulkner Act), N.J.S.A. 40:69A-185 et seq., in various particulars. The trial judge also found that plaintiff's claim as to the amount of tax ratables represented on the petition should not prevail against the clerk's finding that the amount was insufficient to meet the Home Rule referendum provision (N.J.S.A. 40:49-27), given Retz' concession that he himself had not made determination of the assessed valuation of the properties owned by signatories of the petition. The judge further found that the clerk's certificate of insufficiency was conclusive as a matter of law under N.J.S.A. 40:49-27. Having thus resolved the controlling issues in favor of defendants, the judge declined to consider whether plaintiff might also be precluded from any relief by reason of the Local Bond Law, on the ground that N.J.S.A. 40A:2-18 bars any right of referendum on a bonding ordinance.
Plaintiff concedes that the petition does not satisfy the requirements of the Faulkner Act but contends that it is the Home Rule Act which governs and that its requirements are satisfied. N.J.S.A. 40:49-27 provides:
Any ordinance authorizing the incurring of any indebtedness, except for current expenses shall become operative ten days after the publication thereof after its final passage, unless within said ten days a protest against the incurring of such indebtedness shall be filed in the office of the municipal clerk signed by taxpayers representing ten per cent in amount of the assessed valuation of such municipality, whose names appear on the last preceding assessment roll thereof, in which case such ordinance shall remain inoperative until a proposition for the ratification thereof shall be adopted, at an election to be held for that purpose, ...