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Remedial Education and Diagnostic Services Inc. v. Essex County Educational Services Commission

Decided: October 27, 1983.

REMEDIAL EDUCATION AND DIAGNOSTIC SERVICES, INC., PLAINTIFF-APPELLANT,
v.
ESSEX COUNTY EDUCATIONAL SERVICES COMMISSION, ET ALS., DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Chancery Division, Essex County.

Antell, Joelson and McElroy. The opinion of the court was delivered by Antell, P.J.A.D.

Antell

This is an action for breach of contract. Defendant is a public body, and the narrow question presented is whether it was within its statutory powers to enter into the contract on which the suit is based.

Defendant was created pursuant to N.J.S.A. 18A:6-51 et seq.

for the purpose of carrying on programs of educational research and development and providing to public school districts such educational and administrative services as may be authorized pursuant to rules of the State Board of Education. [ N.J.S.A. 18A:6-51(a)].

Acting under the foregoing statute defendant has entered into contracts with a number of public school districts to provide auxiliary and remedial services for handicapped pupils. On September 17, 1981 plaintiff and defendant entered into an agreement whereby plaintiff was to furnish the services and programs which defendant was obligated to supply the member school districts. In reliance thereon plaintiff incurred substantial start-up costs and rendered services for a period of approximately seven weeks for which it here seeks to be paid. On defendant's motion an order for summary judgment was entered in favor of defendant and plaintiff appeals. The basis of the trial

court's determination was that the contract between the parties was, as to defendant, " ultra vires in the primary sense permitting no payment for services pursuant to that contract. . . ." We agree and affirm.

The rule is clear:

[M]unicipal bodies in this State have no powers other than those delegated by the Legislature, and must perform their prescribed activities within the statutory ambit. Scatuorchio v. Jersey City Incinerator Authority, 14 N.J. 72, 85 (1953). Although a public body may make contracts, it can only do so within its express or implied authority. Midtown Properties, Inc. v. Madison Tp., 68 N.J. Super. 197, 208 (Law Div.1961), aff'd 78 N.J. Super. 471 (App.Div.1963). An act wholly beyond the jurisdiction of a municipal corporation is ultra vires in the primary sense and utterly void. [ Sinclair Refining Co. v. County of Bergen, 103 N.J. Super. 426, 433 (App.Div.1968)]

Moreover, it is settled that "[w]here there exists reasonable doubt as to whether such power is vested in the administrative body, the power is denied." In re Jamesburg High School Closing, 83 N.J. 540, 549 (1980).

In Sinclair, supra, the county was authorized by statute to enter into contracts with third parties to procure for municipalities within its boundaries any "service or facility" which the municipality might otherwise lawfully provide to its inhabitants or others. It was there held that "service or facility" did not encompass materials and supplies, and the contract there in question for the purchase of gasoline was held to be "absolutely void," and damages nonrecoverable.

From the enabling legislation before us we see only that defendant was brought into existence for the purpose of "providing" the educational services to the public school districts. Nowhere is it suggested that the obligation to provide such services may be subcontracted or delegated to a private agency. Had the Legislature so intended it would have said so as it did with respect to local school ...


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