Bottone v. Madison Tp.

• Decision Date: 14 November 1966
• Docket Number: No. A--927,A--927
• Parties: Arthur BOTTONE, Plaintiff-Appellant, v. TOWNSHIP OF MADISON, a municipal corporation, Madison Township UtilitiesAuthority, a public body corporate and politic, and Walter Zizik, Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 564

92 N.J.Super. 564

224 A.2d 333

Arthur BOTTONE, Plaintiff-Appellant, v. TOWNSHIP OF MADISON, a municipal corporation, Madison

Township UtilitiesAuthority, a public body

corporate and politic, and Walter Zizik,

Defendants-Respondents.

No. A--927.

Superior Court of New Jersey.

Appellate Division.

Argued Nov. 7, 1966.

Decided Nov. 14, 1966.

Philip L. Strong, New Brunswick, for appellant (Strong, Strong & Gavarny, New Brunswick, attorneys).

Harold G. Smith, New Brunswick, for respondents (Harold G. Smith, New Brunswick attorney, for respondent, Madison Township; John R. Halleran, West End, attorney, for respondent, Zizik).

Respondent Madison Township Municipal Utilities Authority did not file a brief.

Before Judges GOLDMANN, KILKENNY and COLLESTER.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Plaintiff Bottone appeals from the summary judgment entered against him by the Superior Court, Law Division, in his action in lieu of prerogative writs challenging the appointment of defendant Zizik as a member of the Madison Township Municipal Utilities Authority (Authority) and seeking a declaration that plaintiff still held office as a member of that body. The judgment declared that Zizik's appointment for a five-year term beginning February 7, 1966 and ending January 31, 1971 was a valid appointment to the position previously held by plaintiff, whose term expired January 31, 1966.

The Authority was established by ordinance adopted by the Madison Township governing body on August 22, 1960, pursuant to the Municipal Utilities Authorities Law, N.J.S.A. 40:14B-1 et seq. Thereafter, the governing body by resolution dated March 20, 1961 appointed five members to the Authority, the number called for by N.J.S.A. 40:14B--4, for staggered terms respectively ending on December 31 of 1962, 1963, 1964, 1965 and 1966. It should immediately be observed that these appointments were not in accordance with the statute, which reads:

'Any governing body may, in the case of a county by resolution duly adopted, or in the case of a municipality by ordinance duly adopted, create a public body corporate and politic under the name and style of 'the ...... municipal utilities authority,' with all or any significant part of the name of said county or municipality inserted. Said body shall consist of the 5 members thereof, who shall be appointed by resolution of the governing body as hereinafter in this section provided, and it shall constitute the municipal authority contemplated and provided for in this act and an agency and instrumentality of said county or municipality. After the taking effect of the resolution or ordinance for the creation of said body and the filing of a certified copy thereof as in section 7 of this act provided, 5 persons shall be appointed as the members of the municipal authority. The members first appointed shall, by the resolution of appointment, be designated to serve for terms respectively expiring on the first days of the first, second, third, fourth and fifth Februarys next ensuing after the date of their appointment. On or after January 1 in each year after such first appointments, 1 person shall be appointed as a member of the municipal authority to serve for a term commencing on February 1 in such year and expiring on February 1 in the fifth year after such year. In the event of a vacancy in the membership of the municipal authority occurring during an unexpired term of office, a person shall be appointed as a member of the municipal authority to serve for such unexpired term.'

The terms of the members so first appointed should have been designated to expire on February 1 of the stated years.

During the year 1963 the voters of Madison Township, exercising the option given them under the Optional Municipal Charter Law (Faulkner Act), N.J.S.A. 40:69A--1 et seq., adopted the council-manager form of government, effective January 1, 1964. It is conceded that on that date the terms of the several members of the Authority immediately ceased and determined. N.J.S.A. 40:69A--207. Jordan v. Zidel, 40 N.J. 244, 250, 191 A.2d 178 (1963); Broadway Nat'l Bank of Bayonne v. Bayonne Parking Authority, 40 N.J. 227, 240, 191 A.2d 169 (1963). However, the Authority itself was not abolished. Ibid.

On January 1, 1964 the township governing body filled the five vacancies on the Authority by appointing Messrs. Monzeglio, Pond, Bottone (plaintiff), Nesenker and Salvo for terms of one, two, three, four and five years, respectively, and ending on December 31 in the years 1964, 1965, 1966, 1967 and 1968, respectively. As before, the governing body failed to fix expiration dates in accordance with N.J.S.A. 40:14B--4, above. Had it complied with the statutory requirement, plaintiff's term of office would have been made to terminate on February 1, 1966, rather than December 31, 1966.

On February 7, 1966 the governing body appointed defendant Zizik to the Authority for a term of five years ending January 31, 1971. Plaintiff contends that by this action he was wrongfully deprived of the unexpired portion of his term of office, and that Zizik usurped the position rightfully belonging to him. To support this contention he argues that the obvious intent of the governing body was to give him a three-year term in office, and asks the court to fulfill this intention by construing the January 1, 1964 resolution so as to fix January 31, 1967 as the end of his term in office, rather than January 31, 1966. As a minimum, he urges that we determine that he has a right to continue on the Authority until December 31, 1966. He also contends that the governing body acted contrary to N.J.S.A. 40:14B--4 by appointing Zizik...