Feller, J.s.c., retired, temporarily assigned on recall.
This matter was heard on the adjourned return day of an order to show cause.
This action has been brought by the County of Union pursuant to the Declaratory Judgments Act (N.J.S.A. 2A:16-53) for the purpose of obtaining a determination with respect to the present status of the Division of Mosquito Control and Extermination, as well as the Mosquito Control Advisory Board, both of which were created as a part of the county's administrative code which became effective May 1, 1976.
Leave was granted Walter J. Greenhalgh, Assistant County Counsel of Hudson County, to file a brief and argue before this court as amicus curiae. He argued in favor of the contentions of plaintiff, and he further contends that even prior to the adoption of the Optional County Charter Law, the county had the power to abolish the county's Mosquito Extermination Commission pursuant to N.J.S.A. 26:9-27 et seq.
The complaint for declaratory judgment filed in behalf of plaintiff alleges that it seeks a determination of the rights, status and legal relations between the County of Union and
the State of New Jersey relative to the present status of the administrative code of the county.
N.J.S.A. 26:9-13 provides as follows:
The board of chosen freeholders of each county shall appoint a board of commissioners to be known as "the (there insert name of county) county mosquito extermination commission for the county."
N.J.S.A. 26:9-14 provides as follows:
Each county mosquito extermination commission shall be composed of six members in addition to the Director of the State Experiment Station and the Commissioner of Health, who shall be ex-officio members and who shall cooperate with them for the effective carrying out of their plans and work. At least three of the appointive members shall be persons who are or have been members or employees of boards of health and one appointed member of the board of chosen freeholders of the county.
It is further alleged in the complaint that the county, pursuant to N.J.S.A. 40:41A-1 et seq. , also known as the optional county manager form of government as set forth in N.J.S.A. 40:41A through 40:41A-58 presently conducts its affairs through the administrative code of the county adopted under the terms of N.J.S.A. 40:41A-125.
Plaintiff, acting pursuant to the Optional County Charter Law (N.J.S.A. 40:41A-1 et seq.) and its administrative code, abolished the existence of the former Union County Mosquito Extermination Commission, relying specifically upon the legislative authority found in N.J.S.A. 40:41A-26 (general law); N.J.S.A. 40:41A-27 (county powers generally), and N.J.S.A. 40:41A-30 (general powers). The duties and functions of that Commission were recreated in the Division of Mosquito Control and Extermination in Article 22, § C of the county's administrative code.
Plaintiff further alleges that the board of chosen freeholders of the County of Union, by Resolution 523 dated August 26, 1976, created the Mosquito Control Advisory Board and set forth therein the functions and duties of said
board, and by Resolution 524 dated August 26, 1976 appointed the members of that board.
Defendant William F. Hyland, Attorney General of New Jersey, acting in response to an inquiry from defendant Joanne E. Finley, Commissioner of Health of New Jersey, promulgated Formal Opinion 22-1976, dated September 1, 1976, in which the allegations in the complaint set out above were determined to be inconsistent with both the Optional County Charter Law (N.J.S.A. 40:41A-1 et seq.) and with N.J.S.A. 26:9-13 et seq. , and therefore invalid.
The complaint states that as a result of the findings, as contained in Formal Opinion 22-1976 promulgated by the Attorney General, the formerly existing Union County Mosquito Extermination Commission directed a letter to George J. Albanese, County Manager of the County of Union, requesting a clarification of whether the former commissioners or those appointed by Resolution 524 are legally constituted members of the board.
The Attorney General in the opinion submitted states that a county mosquito extermination commission is not a county agency but a state agency, and thus is not subject to the provisions of N.J.S.A. 40:41A-26 which permits counties that have adopted the Optional County Charter Law to abolish or consolidate agencies the existence of which has heretofore been mandated by state statute, providing that such abolition or consolidation shall not alter the obligation of the county to continue providing the service previously provided by such abolished or consolidated agency.
After citing N.J.S.A. 26:9-13, 26:9-14, 26:9-14.1; 26:9-22, 26:9-23, 26:9-25, 26:9-12.3, 26:9-12.6 and 26:9-12.8, the opinion concludes that from the foregoing statutory provisions it is clear that county mosquito extermination commissions are an integral part of a state-county cooperative effort designed to control the mosquito population throughout the State. The Commissioner of Health and the Director of the State Agricultural Experimental Station, in addition to the substantial mosquito extermination powers
vested in them by the applicable laws, are designated as ex-officio members of every county mosquito commission and ex-officio members of state or local agencies, and may participate and vote on an equal basis with appointed members. The designation of the Commissioner and Director as ex-officio members of county mosquito commissions is plainly intended to implement the reciprocal duty of cooperation between the state and county mosquito control commissions imposed by N.J.S.A. 26:9-12.8 and 26:9-14.
Defendants state in effect that the Optional County Charter Law does not have any effect on the status of the former Union County Mosquito Commission since it was a state agency.
Counties are creatures of the State and are subdivisions thereof. However, they are entities unto themselves, but subject to the will and wisdom of the Legislature. The Legislature possesses authority to alter, expand or even abolish all or part of the Mosquito Extermination Act and State Mosquito Control Commission. That is precisely what occurred with the adoption of the Optional County Charter Law (N.J.S.A. 40:41A-1 et seq.).
After the first hearing this court propounded a number of questions concerning the status of mosquito extermination commissions, and a second hearing was scheduled so that the same could be answered. As a result the following information was obtained. Appropriations made under the statute from the State Mosquito Control Commission for state aid for mosquito control purposes in the various counties are not mandatory. The Director of the State Agricultural Experiment Station must approve a detailed estimate of funds required each year for the mosquito commission in each County and such amount ...