Feller, J.s.c. (retired, temporarily assigned on recall).
This is an action in lieu of prerogative writs. On the return date of the order to show cause defendants moved for dismissal of the complaint or, in the alternative, for summary judgment.
The City of Rahway operates under a mayor-council form of government under the provisions of the Faulkner Act. On July 6, 1978 defendant the municipal council passed an ordinance entitled "BOND ORDINANCE TO AUTHORIZE AND REAUTHORIZE THE CONSTRUCTION OF A NEW CITY HALL AND POLICE HEADQUARTERS AT MAIN STREET AND EAST MILTON AVENUE TO AUTHORIZE AND REAUTHORIZE THE ACQUISITION OF LAND THEREFOR, IN THE CITY OF RAHWAY, IN THE COUNTY OF UNION, NEW JERSEY
TO APPROPRIATE AND REAPPROPRIATE THE SUM OF $4,450,000 TO PAY THE COST THEREOF, TO APPROPRIATE AND REAPPROPRIATE A DOWN PAYMENT THEREFOR, TO AUTHORIZE AND REAUTHORIZE THE ISSUANCE OF BONDS TO FINANCE SUCH APPROPRIATION AND REAPPROPRIATION, AND TO PROVIDE FOR THE ISSUANCE OF BOND ANTICIPATION NOTES IN ANTICIPATION OF THE ISSUANCE OF SUCH BONDS." Said ordinance provided for the appropriation of $4,450,000 for the cost of construction of a new city hall and police headquarters building in the City of Rahway.
On July 10, 1974 the original ordinance was passed authorizing the construction of a new city hall and police headquarters at the above location, and authorized the issuance of bonds in the sum of $2,000,000 for this purpose. On June 24, 1976 another ordinance was passed providing for the construction and authorizing the issuance of bonds for this purpose in the sum of $3,000,000. The ordinance of July 6, 1978 raised the authorized bond issue from $3,000,000 to $4,450,000 an increase of $1,450,000.
Plaintiffs caused petitions to be circulated to obtain signatures by registered voters of the City of Rahway demanding a referendum on Ordinance No. A-15-78 passed on July 6, 1978. Plaintiffs concede that they have requested a referendum on this latest ordinance because it increased the authorized bond issue from $3,000,000 to $4,450,000.
The City of Rahway is governed by the provisions of N.J.S.A. 40:69A and the provisions of 40:69A-185 provide that within 20 days after final passage of any ordinance, when a petition protesting the passage of such ordinance shall be filed with the municipal clerk and signed by 25% of the registered voters of the municipality, the ordinance shall be suspended until a referendum shall be considered by the voters at the next election.
The individual plaintiffs contend that they obtained the required 25% within the 20 days. Said petitions were deposited
with defendant Robert W. Schrof, the Clerk of the City of Rahway, on July 24, 1978.
On August 14, 1978 Schrof delivered to plaintiffs a copy of a letter delivered to defendant municipal council in which he ruled the petitions filed were invalid. He further stated in his letter that "Notwithstanding any of the above, the City Attorney has ruled as per his attached opinion that this entire matter is not even subject to a referendum, since a referendum or petition drive is out of time with the original ordinance on this matter."
N.J.S.A. 40:69A-188 provides that if the municipal clerk determines that the petition is insufficient, a supplemental petition may be filed with the municipal clerk within ten days after the municipal clerk has notified petitioners of the insufficiency of the petition. Plaintiffs are presently trying to correct the alleged insufficiencies listed by defendant Schrof, but since he has stated that the entire matter is "not even subject to a referendum" any action taken by plaintiffs or any of the other taxpayers and voters of the City of Rahway to correct the alleged insufficiencies to the petition would be of no value.
Plaintiffs further contend that under the provisions of N.J.S.A. 40:49-27 any ordinance authorizing the incurring of any indebtedness may be the subject of a referendum if protest against the incurring of the indebtedness is filed in the office of the municipal clerk, signed by taxpayers representing 10% in the amount of the assessed valuation of the municipality, in which case such ordinance shall remain inoperative until that proposition is ratified at an election to be held for that purpose -- and that this was done.
Plaintiffs alleged that defendant City Clerk Schrof has failed to determine whether petitioners represent 10% of the amount of the assessed valuation of said municipality. Plaintiffs contend that the petitions filed were proper petitions and that the ordinance should, therefore, be placed on the ...