Henninger v. Bd. Of Chosen Freeholders Of Bergen County

• Decision Date: 07 March 1949
• Docket Number: No. A-231.,A-231.
• Citation: 64 A.2d 365
• Parties: HENNINGER v. BOARD OF CHOSEN FREEHOLDERS OF BERGEN COUNTY et al.
• Court: New Jersey Superior Court

64 A.2d 365

HENNINGER

v.BOARD OF CHOSEN FREEHOLDERS OF BERGEN COUNTY et al.

No. A-231.

Superior Court of New Jersey, Appellate Division, Part A.

March 7, 1949.

Appeal from Superior Court, Law Division.

Declaratory judgment action by Mary M. Henninger against Board of Chosen Freeholders of the County of Bergen and others, for a determination of constitutionality of statute authorizing the erection of a hospital. From an order denying plaintiff's application for an interlocutory injunction, plaintiff appeals.

Appeal dismissed.

Before JACOBS, Senior Judge, and EASTWOOD and BIGELOW, JJ.

Walter H. Gardner and Gardner & Williams, all of Passaic, for plaintiff-appellant.

Milton T. Lasher, of Hackensack, for defendants-respondents.

EASTWOOD, Judge.

Plaintiff appeals from an order entered in the Law Division of the Superior Court on January 21, 1949, denying plaintiff's application for an interlocutory injunction.

Plaintiff instituted an action for a declaratory judgment against defendants for the purpose of testing the constitutionality of P.L.1947, c. 34, R.S. 30:9-12.1 et seq., N.J.S.A. In her complaint as amended, plaintiff, as a taxpayer and citizen of the County of Bergen, alleges that the defendant, Board of Chosen Freeholders of the County of Bergen (hereinafter referred to as Board of Freeholders), adopted certain resolutions authorizing the construction of a new hospital and the issuance of bonds to finance the cost thereof. She asserts that the action so taken by the Board of Freeholders was under the specific authority of R.S. 30:9-12.1 et seq., N.J.S.A., and that said legislation is unconstitutional and invalid. Plaintiff seeks a determination of the validity of R.S. 30:9-12.1, N.J.S.A.; a judgment declaring her rights and status thereunder; that the Board of Freeholders has no authority to enter into contracts pursuant to such statute and seeks to restrain the Board of Freeholders from taking any further action pursuant to said resolutions. On January 12, 1949, an order was granted by the Superior Court, Law Division, returnable on January 21, 1949, directing the defendant, Board of Freeholders, to show cause why it should not be enjoined and restrained from proceeding further under the authority of the resolutions pending the final determination of plaintiff's action, and particularly from issuing or offering for sale any bonds or notes authorized by the county bond resolution adopted December 22, 1948. On the return date of the order to show cause, the court dissolved the temporary restraint theretofore issued and denied plaintiff's application for an interlocutory injunction. At the same time the court denied defendants' motion to dismiss the complaint on the ground that it failed to state a cause of action.

Succinctly stated, appellant's action is grounded on the alleged unconstitutionality of the 1947 Act and the illegality of the resolutions allegedly adopted by the Board of Freeholders under the specific authority of that Act. Defendants contend that neither the complaint as amended nor the record of the action taken by the Board of Freeholders supports the assertion that the Board of Freeholders' action was taken specifically under the authority of the 1947 Act; that the Board of Freeholders is authorized by the provisions of R.S. 40:32-3, 30:9-61 et seq. N.J.S.A., and other statutes to erect county hospital buildings, and that the complaint as amended does not assert that the defendant may not lawfully proceed pursuant to such other laws.

The record before us fails to reveal any supporting proof of her assertions that the ...