Pressler, J.c.c., Temporarily Assigned.
[138 NJSuper Page 328] Plaintiffs, a group of nonprofit societies for the humane care and treatment of animals (hereafter humane societies) and a group of individual residents and taxpayers of various municipalities of this State brought this declaratory judgment class action in lieu of prerogative writ against five commercial dog pounds and seven named municipalities as representatives of all municipalities in the State. The relief which plaintiffs seek is a judicial construction of N.J.S.A. 40:48-5.1 and related statutes which would prohibit all municipalities from contracting with commercial pounds for the performance of what are essentially dog-warden and poundkeeping services and would hence require every municipality to either maintain its own dog pound or to contract for the performance of these services with another governmental unit or with a nonprofit humane society. A sixth commercial pound, Community Dog Control, Inc., which services 43 municipalities in Ocean and Monmouth Counties, was granted leave to intervene as a party defendant. All named parties moved
for summary judgment, each asserting that no genuine issue of material fact exists.
Clarification of the nature and scope of the meritorious questions here raised, of first impression in this State, requires a brief recitation of the procedural, statutory and undisputed factual background of this controversy in its present posture.
N.J.S.A. 40:48-5.1, originally adopted in 1928 and modified in 1937, provides in full as follows:
Wherever in any municipality there shall not be established under municipal authority a public pound for the keeping of stray dogs, cats or other domestic pets, and there shall exist in the county wherein such municipality is situated, a pound maintained by any humane society or other similar association, not organized for pecuniary profit, which shall have continuously maintained said pound for at least one year, such municipality shall enter into negotiations and may contract with such society or association for any period not exceeding five years, for collecting, keeping for redemption and destroying all such stray animals found within the municipal limits.
Any provision of any law requiring advertisement for bids before the letting of any contract involving the expenditure of money shall not be applicable to the making of any such contract with such society or association.
The statute, therefore, establishes two classes of municipalities which do not maintain their own pounds: those situate in counties in which there is a humane society pound and those situate in counties in which there is not. The first five named municipal defendants, Mahwah, Bergenfield, Bogota, Ho-Ho-Kus and Lyndhurst, are all located in Bergen County in which there is no humane society pound, and each of them, having no municipal pound, has contracted with one or the other of the commercial defendants for the performance of pound-keeping services. The other two municipal defendants, Kearny and Guttenberg, are situated in Hudson County in which there are several humane society pounds. Neither of these defendants has negotiated with any such society, having also contracted with one or another of the commercial defendants. It is alleged by plaintiffs, and
not disputed, that in addition to Hudson County, the Counties of Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Middlesex, Monmouth, Morris, Ocean, Somerset and Union have humane society pounds. These have been referred to by the parties for convenience as the Hudson-type municipalities. The Counties of Gloucester, Hunterdon, Mercer, Passaic, Salem, Sussex and Warren, like Bergen do not have humane society pounds. These are the so-called Bergen-type municipalities.
As their preliminary procedural step, plaintiffs moved pursuant to R. 4:32-2(a) for a determination of maintainability of this suit as a class action. This court, after hearing, entered an order permitting the action to so proceed in accordance with R. 4:32-1(b)(3), but against two separate classes of defendants, the Bergen-type municipalities and the Hudson-type municipalities. The five Bergen County municipal defendants were designated as representatives of the first class and the two Hudson County municipal defendants were designated as representatives of the second class. The order further directed, in accordance with R. 4:32-2(b), that mailed notice of the pendency of the action be given to every municipality in the State and to the New Jersey Attorney General, the notice to advise, among other things, that any municipality either maintaining its own public pound or having a contract with a nonprofit humane society would not be considered a member of either class. The notice further advised that any class member might request exclusion within a specified time or, if not requesting exclusion, might enter an appearance.*fn1 The order further held that the plaintiffs had sufficient standing to prosecute the action.
The question of law common to both classes is whether the applicable statutory complex empowers any municipality to contract with a commercial poundkeeper, plaintiffs maintaining that it does not. If plaintiffs are correct then the Bergen-type municipalities may, as all parties agree, provide this service only by maintaining their own dog pounds or contracting with another governmental unit which does so, and the Hudson-type municipalities would have the third alternative of contracting with a humane society. If plaintiffs are incorrect then there is concededly no impediment to the Bergen-type municipalities' use of commercial services other than that imposed by public bidding requirements generally. As to the Hudson-type municipalities, two additional legal questions are raised. The first is the nature and scope of the municipal obligation under the mandate of N.J.S.A. 40:48-5.1, requiring that these municipalities "shall enter into negotiations and may contract" with nonprofit humane societies. The second is the claim of the commercial defendants that this mandate is based on an unreasonable classification vis-a-vis profit and nonprofit poundkeepers and hence constitutes a denial of equal protection in derogation of the Fourteenth Amendment of the Federal Constitution.
As to the common legal question, it is the conclusion of this court for the reasons hereinafter stated that the only qualification upon a municipality's right to contract with a commercial pound is the "shall negotiate" provision of the quoted statute and hence that there is no qualification at all in respect of the Bergen-type counties.
It is first evident, and all parties agree, that the removal of stray domestic animals from the public streets and their ultimate disposal is not only an appropriate but also a necessary governmental function traditionally performed or arranged for by municipalities in the interest of public health and safety. The propriety of municipal responsibility for the performance of ...