Matthews, Seidman and Horn.
The primary issue projected in this appeal by plaintiffs is whether a proposed ordinance sought to be enacted through the initiative petition process should be submitted to the ballot. Defendant Snowden,*fn1 Municipal Clerk of the Township of Denville (township), in which the controversy arose, acting upon the advice of the municipal attorney that the ordinance was illegal, actively took steps to prevent its submission to the voters, which in turn precipitated an unsuccessful in lieu action by plaintiffs against Snowden and Frank A. Headley, Clerk of Morris County, to compel its placement on the ballot. Headley has not appeared in this appeal. He took a neutral position below, agreeing to abide by the court's direction.
Denville Township is a Faulkner Act municipality, having adopted Plan F of the act, effective January 1, 1972. N.J.S.A.
40:69A-74 et seq. On August 7, 1974 the municipal council introduced Ordinance 12-74 appropriating $2,044,000 for the purpose of constructing on land of the municipality a municipal complex consisting of municipal offices and facilities and the Denville public library. The ordinance also provided for the issuance of bonds in the amount of $1,946,500.
The second reading of the ordinance was scheduled to take place at the following regular meeting of the council on September 4, 1974. On August 28, 1974 the initiative petition containing the proposed ordinance sponsored by plaintiffs as the Committee of the Petitioners, pursuant to N.J.S.A. 40:69A-186, was filed with the municipal clerk. The petition contained 3,501 signatures -- more than the required number of qualified voters. Accordingly, on September 18, 1974 the municipal clerk certified the regularity of the petition to the municipal council, in accordance with N.J.S.A. 40:69A-187.
The ordinance provides as follows:
Paragraph 1 prohibits the governing body or officials of the township from committing or spending any public funds, monies or assets of the township for construction of the municipal complex on the specified land owned by it.
Paragraph 2 prohibits the governing body or officials of the township from incurring any indebtedness or from issuing, preparing or undertaking any bonds for the construction of the proposed municipal complex at that site.
Paragraph 3 prohibits the governing body or officials of the township from pledging or obligating public funds, monies or assets of the township for the purpose of supporting or financing the construction of a municipal complex at that site.
Paragraph 4 states that nothing in the ordinance shall restrict or encumber the township in the adoption and implementation of the annual local budget and the expenditure of funds pursuant thereto.
Paragraph 5 repeals any ordinance or resolution of the township inconsistent with the provisions of the ...