[171 NJSuper Page 447] The City Clerk of Bayonne seeks a declaratory judgment to determine the validity of an ordinance proposed under the initiative power contained in the Optional Municipal Charter
Law (commonly known as the Faulkner Act). N.J.S.A. 40:69A-184 et seq. Plaintiff also seeks to enjoin defendants from taking any further action to place the proposed ordinance before the municipal council or on the ballot.
The undisputed facts follow. On August 13, 1979 defendants filed a petition with the city clerk proposing the ordinance in question. This petition purported to contain the signatures of 15% of the registered voters of the city, as required by N.J.S.A. 40:69A-184. Bayonne is governed by the Mayor-Council Plan C form of government pursuant to the Faulkner Act. N.J.S.A. 40:69A-55 et seq. The petition proposes an ordinance that would limit the number of terms for which a municipal official may be elected. The ordinance in question reads in pertinent part:
Section 1. No person who has been elected Mayor for two (2) successive terms, including an unexpired term, shall again be eligible for that office until four years shall have expired following the expiration of his or her second successive term.
Section 2 contains the same language as § 1 except that it applies to councilmen rather than to the mayor.
The city clerk contends that the petition proposes an ordinance which is ultra vires the power of the municipality to enact and thus he asserts that the petition is rendered void on its face.
Defendants argue that the proposed ordinance is a valid subject for municipal legislation because the Legislature has granted to local governments the right to adopt an ordinance limiting the number of terms of members of its governing body. Defendants base their argument on the New Jersey Constitution, N.J.Const. (1974), Art. IV, § VII, par. 11, on the language contained in N.J.S.A. 40:69A-184 and on the silence of the Faulkner Act as to the number of terms permitted.
The determination of the validity of an initiative ordinance before it is enacted by the voters is a proper subject for a
declaratory judgment action. McCrink v. West Orange , 85 N.J. Super. 86, 91 (App.Div.1974); Newark v. Benjamin , 144 N.J. Super. 58, 66 (Ch.Div.1977), aff'd per curiam , 75 N.J. , 311 (1978).
N.J.S.A. 40:69A-184 provides that the voters of a municipality covered by the Faulkner Act may propose "any ordinance" by initiative. This initiative provision is to be liberally construed in line with the intent of the Faulkner Act to confer the greatest possible power of local self-government and to encourage the public's interest and participation in local government. Cuprowski v. Jersey City , 101 N.J. Super. 15 (Law Div. 1968), aff'd o.b. , 103 N.J. Super. 217 (App.Div.), certif. den. 53 N.J. , 80 (1968). However, "any ordinance," as stated in N.J.S.A 40:69A-184 does not mean "all ordinances." Smith v. Livingston Tp. , 106 N.J. Super. 444, 457 (Ch.Div.), aff'd o.b. , 54 N.J. 525 (1969); Maese v. Snowden , 148 N.J. Super. 7, 11-12 (App.Div.1977). It is well settled that only municipal legislation which is within the power of the municipality to enact can be the subject of an initiative petition. Gamrin v. Englewood , 76 N.J. Super. 555 (Law Div.1962). The principle for judicial guidance is that an initiative question "must relate to action which the municipality has the authority to take . . . If the municipality has no power to act, it has no right to seek the voter's advice whether to do so." Santoro v. South Plainfield , 57 N.J. Super. 498, 501 (App.Div.1959).
A municipality is a government of enumerated powers and thus is only enabled to act on the basis of the authority delegated by the Legislature. Our Supreme Court, commenting on the ...