Miller, Edward S., J.s.c.
In this action in lieu of prerogative writs, the refusal of Deptford Township to allocate certain monies to its local board of health is challenged. At the hearing held on this matter, the parties stipulated the facts. This case, therefore, is ready for a final decision.
The facts were stipulated as follows. Since January 1977, the members of the Deptford Township Board of Health (board) have received compensation of $25 a meeting pursuant to a local ordinance. On April 12, 1984, the Deptford Township Mayor and Council (council) informed the board that this ordinance was inconsistent with N.J.S.A. 26:3-13 which provides for compensation to local board of health members in the amount of $2 a meeting. The council advised the board that in conformity with the statute, the board members would no longer receive $25 a meeting, but would receive the statutory amount.
On June 25, 1984, the board adopted an ordinance which designates each board member as a "special representative" of the board for the purpose of inspecting swine farms in Deptford Township. The ordinance states:
Each member of the Board of Health shall be designated special representative for the purpose of inspecting swine farm building and premises and shall be compensated at an annual rate of $300.00 payable $25.00 per month. [Section 62-18]
The board submitted its 1984 budget to the council which included as line items $300 a year a member pursuant to the above quoted statute. This amounted to a total of $2,100 for the seven members of the board. The council, however, refused to make any disbursements to the board members pursuant to the swine farm ordinance. Since May 1984 there have been no swine farm inspections or permits issued to any swine farm in Deptford Township. In addition, in 1984, the council has discontinued its practice of paying compensation to all of the township's boards.
The board asks this court to order the council to release the monies payable to its members pursuant to the swine farm ordinance. In support of the relief sought, the board presents two arguments that the actions of the council are arbitrary and capricious.
The board first argues that it has the authority to pass this ordinance under the broad grant of powers given to it by the Board of Health Act (act). N.J.S.A. 26:3-1 et seq. See Zullo v. Board of Health of Woodbridge Township, 9 N.J. 431 (1952). Its argument is based upon reading two sections of the act in conjunction with each other. Under section 31 of the act, local boards of health are authorized to pass, alter or amend ordinances and make rules and regulations for the purpose of regulating the keeping of animals. N.J.S.A. 26:3-31(k). Section 19 of the act authorizes a local board to employ the necessary personnel to carry out its functions and to fix the "duties and compensation of every appointee." N.J.S.A. 26:3-19. The board argues that these two sections taken together give it the power to pass the ordinance at issue here.
The board's second argument is that the council may not arbitrarily refuse to appropriate money for the items set forth in the board's budget. The board relies upon the case of Grosso v. City of Paterson, 33 N.J. 477 (1960). In that case, the local board of health had given salary increments to its employees. The city, however, cut the board's estimated budget
by not providing for these salary increments. The Supreme Court held that while a local governing body is vested with some control over the amount of money to be appropriated to a local board, see N.J.S.A. 26:3-41, that control "may not be exercised so as to interfere with the Board of Health's lawfully enacted and effective ordinance provisions for mandatory salary increments." Id. at 485-486.
While this court recognizes the broad grant of powers given to the board, it finds the board's arguments unpersuasive in this context. It is the opinion of this court that the actions of the board are an attempt to circumvent the Board of Health Act. Consequently, the court holds that there is no legal authority for the ...