Becker v. Adams

• Decision Date: 21 May 1962
• Docket Number: No. A--89,A--89
• Citation: 181 A.2d 349,37 N.J. 337
• Parties: Augustine L. BECKER, William F. Brenner, William J. Burke, Marion Matlack, Lester J. Wolf, individually, and as representatives of all others similarly situated, Plaintiffs-Appellants, v. Frederick M. ADAMS, The Chairman of the Township Committee of the Township of Woodbridge in the County of Middlesex, New Jersey and the Mayor and Township Committee of the Township of Woodbridge in the County of Middlesex, New Jersey, and Township of Woodbridge in the County of Middlesex, New Jersey, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 337

37 N.J. 337

181 A.2d 349

Augustine L. BECKER, William F. Brenner, William J. Burke Marion Matlack, Lester J. Wolf, individually, and as representatives of all others similarly situated Plaintiffs-Appellants, v. Frederick M. ADAMS, The Chairman of the Township Committee of the Township of Woodbridge in the County of Middlesex New Jersey and the Mayor and Township Committee of the Township of Woodbridge in the County of Middlesex, New Jersey, and Township of Woodbridge in the County of Middlesex, New Jersey, Defendants-Respondents.

No. A--89.

Supreme Court of New Jersey.

Argued April 3, 1962.

Decided May 21, 1962.

Stephan Lypinski, Hoboken, for appellants (Florio, Dunn, Marciano & Lypinski, Hoboken, attorneys, Joseph C. Dunn, Hoboken, of counsel).

John E. Toolan, Perth Amboy, for respondents (Toolan, Haney & Romond, Perth Amboy, attorneys).

The opinion of the court was delivered by

JACOBS, J.

The plaintiffs are inhabitants of the defendant Township of Woodbridge and reside in sections of the township known as Port Reading and Sewaren. On May 1, 1961 they and other residents of Port Reading and Sewaren submitted a petition under the 1895 Act for the Incorporation of Cities. See L.1895, c. 269, pp. 551--555--R.S. 40:168--6 through R.S. 40:168--12, N.J.S.A. The petition was submitted to the Chairman of the Township Committee and requested, in effect, that an election be held to determine whether the Port Reading and Sewaren sections should be withdrawn from the township and become incorporated as an independent community to be known as the City of Port Waren. After the petition was submitted, but before it was acted upon, a bill was introduced in the Legislature to remove the statutory basis for the petition. The bill was numbered Assembly 633, was introduced on May 8, 1961, was passed on the same day by both the Assembly and the Senate, and on May 10, 1961 was signed by the Governor as L.1961, c. 23. It provided that the 1895 Act is repealed but that the repealer shall not affect any city theretofore incorporated (N.J.S.A. 40:168--13). The statement attached to the bill noted that it was in accord with the objectives of the Committee Report which resulted in L.1960, c. 171. That report recommended the repeal of certain statutory provisions which had furnished authority for the incorporation of villages from sections of townships. See R.S. 40:157--1 et seq., N.J.S.A.; In re Loch Arbour, 25 N.J. 258, 135 A.2d 663 (1957). This authority was removed by the repealer in L.1960, c. 171.

On June 16, 1961 the plaintiffs filed a complaint in lieu of prerogative writ which sought to compel an election under the 1895 enactment repealed by L.1961, c. 23. The defendants filed an answer and thereafter moved for summary judgment. Their motion was granted and judgment for the defendants was entered in the Law Division. Thereafter the plaintiffs appealed to the Appellate Division and while their appeal was pending there we certified it on our own motion. See R.R. 1:10--1(a). In support of their appeal the plaintiffs advance the single contention that 'having initiated a proceeding under an enabling act of the Legislature, a subsequent repeal of the act did not abate the proceeding.' But cf. S & L Associates, Inc. v. Washington Tp., 35 N.J. 224, 227, 172 A.2d 657 (1961); Bor. of Little Ferry v. Bergen County Sewer Authority, 9 N.J. 536, 547, 89 A.2d 18 (1952), cert. denied, 344 U.S. 865, 73 S.Ct. 105, 97 L.Ed. 670 (1952); Westinghouse Electric Corp. v. United Electrical, etc., 139 N.J.Eq. 97, 105, 49 A.2d 896 (E. & A.1946); Staudter v. Elter, 64 N.J.Super. 432, 436, 166 A.2d 394 (App.Div.1960); Crecca v. Nucera, 52 N.J.Super. 279, 284, 145 A.2d 477 (App.Div.1958); Kantor v. The Perth Amboy Nat. Bank, 13 N.J.Super. 266, 267, 80 A.2d 446 (App.Div.1951); Roselle v. Wright, 37 N.J.Super. 507, 515, 117 A.2d 661 (Law Div.1955), affirmed, 21 N.J. 400, 122 A.2d 506 (1956).

Municipal corporations are merely political subdivisions of the State and the legislative control over them in almost unlimited. See Jersey City v. Martin, 126 N.J.L. 353, 361, 19 A.2d 40 (E. & A.1941); Phyne, Municipal Law § 4--2, p. 61 (1957). The Legislature may grant and withdraw municipal powers generally and may grant and withdraw authority to sever and incorporate a particular section of a pre-existing municipality. See Rhyne, supra § 2--42, p. 42; 1 McQuillin, Municipal Corporations § 3.02, pp. 509, 513 (3d ed. 1949). No resident of the municipality has any vested private right in the power to sever and incorporate. His right is strictly public in nature and is shared with other residents. Such public right may freely be withdrawn by the Legislature even after administrative and judicial proceedings towards its exercise have been taken. Cf. Hodges v. Snyder, 261 U.S. 600, 603--604, 43 S.Ct. 435, 67 L.Ed. 819, 822 (1923); Holen v. Minneapolis-St. St. Paul Metropolitan A. Com'n., 250 Minn. 130, 84 N.W.2d 282 (1957). In the Holen case, the Supreme Court of Minnesota had this to say 'Retrospective or curative legislation is, of course, prohibited under U.S.Const. Amend. XIV, when it divests any private vested interest. It is clear, however, that a public right may always be modified or annulled by subsequent legislation without contravening the due process clause. Even after a public right has been established by judgment of the court, it may be annulled by subsequent legislation and may not thereafter be enforced. Clearly, there is a definite distinction between the effect to be given to a retroactive statute when it relates to private rights and when it relates to public rights.' 84 N.W.2d, at p. 287

See Newbury v. Patterson, 53 N.J.L. 120, 122, 20 A. 828 (Sup.Ct.1890).

The plaintiffs do not question the sweeping power of the Legislature but urge that their right to sever and incorporate was 'saved by R.S. 1:1--11 in the absence of clear language to the contrary in the repealing act.' And they also urge that under R.S. 1:1--14 N.J.S.A. their proceeding before the Township Committee did not abate. N.J.S.A. 1:1--11 provides that the repeal of a statute by the enactment of the Revised Statutes, the New Jersey Statutes, or 'any other revision law' shall not impair or invalidate any act done or right or limitation 'vested or accrued' (cf. Rocker v. Cardinal B. & L. Assn. of Newark, 13 N.J.Misc. 397, 402, 179 A. 667 (Sup.Ct.1935), affirmed, 119 N.J.L. 134, 194 A. 865 (E. & A.1937)), and shall not in any way invalidate any right or title conferred by the repealed statute in 'real or personal property.' R.S. 1:1--14, N.J.S.A. provides that no action or proceeding of 'a civil nature' (cf. Tims v. Spragg, 58 N.J.L. 273, 274, 33 A. 213 (Sup.Ct.1895); Koch v. Vanderhoof, 49 N.J.L. 619, 622, 9 A. 771 (Sup.Ct.1887)) shall abate because of the repeal of the underlying statute but that the action or proceeding shall be prosecuted to 'final judgment, decree or decision.' See Barnaby v. Bradley & Currier Co., 60 N.J.L. 158, 160--161, 37 A. 764 (E. & A.1897); Wilson v. Herbert, 41 N.J.L. 454, 458 (Sup.Ct.1879). The quoted language and the cited c...