Cuprowski v. City of Jersey City

• Decision Date: 30 April 1968
• Docket Number: No. L--27009,L--27009
• Citation: 242 A.2d 873,101 N.J.Super. 15
• Parties: Paul CUPROWSKI, Mary E. Verdiramo, James J. Mack, Frank S. Monaco, and Jerome Lazarus, Plaintiffs, v. CITY OF JERSEY CITY, a municipal corporation of the State of New Jersey, andWilliam P. Black, City Clerk of the City of Jersey City, Defendants.
• Court: New Jersey Superior Court

Page 15

101 N.J.Super. 15

242 A.2d 873

Paul CUPROWSKI, Mary E. Verdiramo, James J. Mack, Frank S Monaco, and Jerome Lazarus, Plaintiffs, v. CITY OF JERSEY CITY, a municipal corporation of the State of New Jersey, andWilliam P. Black, City Clerk of the City of Jersey City, Defendants.

No. L--27009.

Superior Court of New Jersey, Law Division.

April 30, 1968.

Gerold Kanengister, Millburn, for plaintiffs (Gordon & Kanengiser, Millburn, attorneys).

James F. Ryan, Corp. Counsel, for defendants.

ARTASERSE, A.J.S.C.

This is a proceeding in lieu of prerogative writs by the petitioners, all residents and taxpayers of Jersey City, who protest the adoption of the Jersey City municipal budget for the current year.

On April 5, 1968 plaintiffs herein presented to the city clerk a petition allegedly signed by 35,805 residents of Jersey City protesting the city's budget for the fiscal year 1968 and requesting that the said budget be the subject of a referendum to appear on the ballot at an election held pursuant to N.J.S.A. 40:69A--185. The city clerk having refused to accept the petition, plaintiffs have instituted this action to compel the clerk to do so, it being the initial procedural step necessary for a referendum to repeal the budget. Defendants have moved for a dismissal of the complaint, alleging that it does not state a legal cause of action.

It is plaintiffs' contention that the city's action in introducing, approving and adopting its budget for the current fiscal year constituted the adoption of an ordinance by the city and is therefore within the purview of N.J.S.A. 40:69A--185, which provides as follows:

'The voters shall also have the power of referendum which is the power to approve or reject at the polls any ordinance submitted by the council to the voters or any ordinance passed by the council, against which a referendum petition has been filed as herein provided. No ordinance passed by the municipal council, except when otherwise required by general law or permitted by the provisions of section 17--32(b) of this act, shall take effect before twenty days from the time of its final passage and its approval by the mayor where such approval is required. If within twenty days after such final passage and approval of such ordinance a petition protesting against the passage of such ordinance shall be filed with the municipal clerk and if the petition shall be signed in the case of municipalities * * * of more than 70,000 inhabitants, by fifteen per centum (15%) of the registered voters of the municipality, * * * the ordinance shall be suspended from taking effect until proceedings are had as herein provided.'

N.J.S.A. 40:48--1 provides in part that:

'The governing body of every municipality may make, amend, repeal and enforce ordinances to:

Finances and property. 1. Manage, regulate and control the finances and property, real and personal, of the municipality; * * *.'

N.J.S.A. 40:69A--181(b) provides as follows:

'No ordinance other than the Local budget ordinance shall take effect less than twenty days after its final passage * * *.' (Emphasis added)

Plaintiffs, in effect, contend that a municipality controls and regulates its finances by means of a budget and because of the provisions of N.J.S.A. 40:48--1 and N.J.S.A. 40:69A--181(b), supra, a budget must be an ordinance within the provisions of N.J.S.A. 40:69A--185, supra, and therefore subject to referendum.

The city, on the other hand, contends that a budget is not an ordinance but rather is adopted by resolution and therefore is not within the ambit of N.J.S.A. 40:69A--185, supra, which only pertains to ordinances. In support of its position the city points to N.J.S.A. 40A:4--4 which is part of the Local Budget Law and provides as follows:

'All budgets shall be Introduced, approved, amended and adopted by resolution passed by not less than a majority of the full membership of the governing body.' (Emphasis added)

The city also contends that even if the budget is an ordinance it is not the type of ordinance that the Legislature intended should be subject to initiative and referendum.

It is well settled that statutory language will be interpreted and applied with an eye toward effectuating the intent of the Legislature. To this end courts will try to harmonize statutes dealing with the same general subject. Loboda v. Clark Tp., 40 N.J. 424, 193 A.2d 97 (1963). It is also fundamental that the Legislature is presumed to be familiar with its own enactments and with judicial declarations relating to them. State v. Federanko, 26 N.J. 119, 139 A.2d 30 (1958). Thus, under the rules of statutory construction, statutes In pari materia are not to be construed as isolated fragments of the law, but rather as a single and complete statutory arrangement. Such statutes should be considered as if they constituted one act, so that sections of one act may be considered as though they were parts of the other act, as far as this can be reasonably done.

The words 'ordinance' and 'resolution' are defined in N.J.S.A. 40:49--1 as follows:

'The term 'ordinance' * * * means and includes any act or regulation of the governing body * * * required to be reducing to writing and read at more than one meeting thereof and published.

The term 'resolution' * * * means and includes any act or regulation of the governing body * * * required to be reduced to writing, but which May be finally passed at the meeting at which it is introduced.' (Emphasis added)

Generally, it has been held that a governing body can only act by way of ordinances and resolutions. Woodhull v. Manahan, 85 N.J.Super. 157, 204 A.2d 212 (App.Div.1964); Irvington v. Ollemar, 128 N.J.Eq. 402, 16 A.2d 563 (Ch.1940), and that an action of the governing body which does not rise to the dignity of an ordinance is a resolution. Chasis v. Tumulty, 8 N.J. 147, 84 A.2d 445 (1951). Also it has been held that as between two conflicting statutes the latter in time governs. Woodhull v. Manahan, supra.

N.J.S.A. 40:186--1, enacted in 1901, concerning budgets in certain cities provides as follows:

'It shall not hereafter be necessary in any city of this state to submit to election or approval by the voters the appropriations or amounts of money to be raised in each year for the lawful purposes of such city; but said appropriation shall be made by the common council, board of aldermen or other governing body, or by the board having control of the finances of such city, by Resolution or Ordinance, in which the amounts and objects shall be particularly set forth.' (Emphasis added)

This statute allows a city to pass its budget by either ordinance or resolution. See also Fox v. Clark, 72 N.J.L. 100, 59 A. 224 (Sup.Ct.1904).

The Legislature enacted the Local Budget Law in 1936. N.J.S.A. 40:2--1 et seq. This law laid down the requirements and procedures to be followed by a municipality when approving and adopting its budget. A reading of this 1936 law (chapter 211, section 106) along with its 1939 and 1947 amendments (see N.J.S.A. 40:2--8) reveals that although the word 'resolution' was used, it was not a mandatory procedure. Therefore, cities were still permitted to adopt their budget by ordinance provided that the city in doing so adhered to the time requirements for publishing and for public hearings as contained in the budget law. N.J.S.A. 40:2--7.

When the Legislature passed the Faulkner Act in 1950 it was aware of the fact that prior thereto local budgets could be adopted by ordinance as well as by resolution, but by the provisions of N.J.S.A. 40:69A--181(b) and N.J.S.A. 40:69A--185 it was evident that the Legislature intended that local budget ordinances be exempt from its referendum provisions.

The Legislature provided that the local budget ordinance take effect immediately and not be held in abeyance for 20 days. N.J.S.A. 40:69A--181(b). N.J.S.A. 40:69A--185 provides that all ordinances except one permitted by N.J.S.A. 40:69A--181(b) (the local budget ordinance) be subject to attack by referendum during the twenty-day waiting period. It therefore must be assumed that the Legislature excluded the budget from recall because it becomes effective immediately upon adoption. Swain v. Fritchman, etc., 21 Idaho 783, 125 P. 319, 325 (Idaho Sup.Ct.1912).

Plaintiffs further contended that certain ordinances adopted pursuant to N.J.S.A. 40:46--26 and N.J.S.A. 40:49--27 provide for only a 10-day waiting period instead of 20 days before the said ordinances become effective and that therefore the claim of defendants that the referendum provision did not apply to the resolution adopting the budget because it did not have a 20-day waiting period was not sound. However, a reading of the said sections of the Revised Statutes reveals that each of them has a built-in, special referendum provision. Reference to these statutes gives credence to the contention of defendants that the Legislature never intended a municipal budget to be subject to referendum.

The exemptions of local budgets from attack by referendum was emphasized when the Legislature enacted the Local Budget Law in 1960, which provided for the first time in N.J.S.A. 40A:4--4 that thereafter local budgets shall be approved and adopted by Resolution. N.J.S.A. 40A:4--4 provides as follows:

'All budgets Shall be introduced, approved, amended and adopted by Resolution passed by not less than a majority of the full membership of the governing body.' (Emphasis added)

In 1964 the Legislature, in furtherance of the procedural policy enunciated in N.J.S.A. 40A:4--4, supra, amended section 40A:4--10 so that its first paragraph now reads in part as follows:

'* * * Final adoption Shall be by Resolution adopted by a majority of the full membership of the governing body, * * *.' (Emphasis added)

These enactments concerning the Local Budget Law without doubt show that the Legislature intended that local budgets be approved and adopted by resolution and not by ordinance.

Municipal...