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Donato v. Gibson

Decided: March 25, 1981.


On appeal from Superior Court of New Jersey, Law Division, Essex County.

Botter, King and McElroy. The opinion of the court was delivered by McElroy, J.A.D.


Plaintiff-appellant John F. Donato, M.D., a taxpayer and citizen of the City of Newark, on August 14, 1979 obtained an order to show cause seeking to enjoin the mayor and municipal council of the City of Newark from implementing a salary ordinance passed August 8, 1979 and effective August 31, 1979. This ordinance raised the salaries of the mayor and members of the council. Defendants-respondents in turn moved to dismiss plaintiff's verified complaint and the matter came on for hearing in the court below on August 23, 1979. The trial judges, in an oral decision, directed that the complaint be dismissed and the order to show cause discharged. Thus, plaintiff brings this appeal.

Dr. Donato's primary contention here and in the trial court was that the salary ordinance was improperly passed because a referendum held on November 7, 1978, pursuant to N.J.S.A. 40A:9-165, resulted in a voters' rejection of prior salary increases. He contends that N.J.S.A. 40A:9-165 and N.J.S.A. 40A:9-167 and 168 must be read together, and that when they are, the voter rejection of November 7, 1978 prohibited any salary increases for defendants for a period of two years following the date of such vote.

The underlying facts are not in dispute. On July 12, 1978 the municipal council passed a package of 13 ordinances increasing salaries for officers and other employees of the city, including defendants. Pursuant to N.J.S.A. 40A:9-165 a petition was filed which was signed, as required by ยง 165, by at least 5% of

the registered voters protesting the salary increases. In accordance with the requirements of that statute, the question of such salary increases was submitted by proposition to the electorate at the general election of November 7, 1978 and received a negative majority vote. As a result the 1978 ordinances were rendered ineffective.

On August 8, 1979 the city council, by a vote of five to four, passed the ordinance here challenged. Dr. Donato attended the public meeting on that date and objected to its passage. Plaintiff, as indicated above, sought relief by complaint and order to show cause filed August 14, 1979 and heard and decided August 23, 1979. The trial judge, with commendable zeal, moved this matter rapidly in order to give plaintiff the opportunity to secure, within 20 days of the passage of the ordinance, a petition signed by 5% of the registered voters in the event he wanted to challenge the ordinance under N.J.S.A. 40A:9-165. Despite the adverse ruling below, plaintiff did not seek that avenue of relief.

Appellant's primary contention is that the August 1979 ordinance was improperly passed because the referendum result of November 7, 1978 constituted, under N.J.S.A. 40A:9-167, a two-year bar against attempts to increase salaries. He arrives at this assertion by a reading of N.J.S.A. 40A:9-165 in connection with N.J.S.A. 40A:9-167 and 168. These statutes, which specifically provide the procedure of initiative and referendum to test salary ordinances, are the exclusive vehicle for such procedures and take precedence over the general referendum provisions of N.J.S.A. 40:69A-184 et seq. Lawrence v. Butcher , 130 N.J. Super. 209 (App.Div.1974).

N.J.S.A. 40A:9-165, in its first paragraph empowers the governing body of a municipality by ordinance to fix and determine the salary of its mayor, or other chief executive, members of the governing body and officers and employees. Its second paragraph reads as follows:

Where any such ordinance shall provide for increases in salaries, wages or compensation of elective officials or any managerial executive or confidential employee, the ordinance or that portion thereof which provides an increase for

such elective or appointive officials, shall become operative in 20 days after the publication thereof, after final passage, unless within said 20 days, a petition, signed by voters of such municipality, equal in number to at least 5% of the registered voters of the municipality, protesting against the passage of such ordinance, be presented to the governing body, in which case such ordinance shall remain inoperative unless and until a proposition for the ratification thereof shall be adopted at an election by a majority of the voters voting on said proposition. The question shall be submitted at the next general election, occurring not less than 40 days from the date of the certification of the petition. The submission of the ...

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