Stirling v. City Of Plainfield.

• Decision Date: 27 June 1947
• Docket Number: No. 26.,26.
• Citation: 136 N.J.L. 38,53 A.2d 713
• Parties: STIRLING et al. v. CITY OF PLAINFIELD.
• Court: New Jersey Supreme Court

136 N.J.L. 38

53 A.2d 713

STIRLING et al.

v.CITY OF PLAINFIELD.

No. 26.

Court of Errors and Appeals of New Jersey.

June 27, 1947.

Appeal from Supreme Court.

Certiorari by Ruth E. Stirling and another against City of Plainfield to test the validity of a zoning ordinance. Judgment in favor of prosecutors, 134 N.J.L. 485, 49 A.2d 38, and defendant appeals.

Reversed.

BODINE, DONGES, WACHENFELD, and EASTWOOD, Justices, and DILL, Judge, dissenting.

Salvador Diana, of Plainfield, for appellant.

Carroll W. Hopkins, of Plainfield, for respondents.

McGEEHAN, Judge.

The question raised by this appeal is whether a zoning ordinance of the City of Plainfield was validly enacted.

A zoning ordinance (Revision of 1933) was in effect in Plainfield when, on October 1, 1945, a revised zoning ordinance was introduced for the first time, read and passed on first reading. On October 15, 1945, the date set, a public hearing was held, at which time various objections were made to the ordinance as published; whereupon, by resolution, the public hearing was continued to November 5, 1945. At the public hearing on November 5, 1945, a resolution was passed to amend the zoning ordinance under consideration. Among other changes, the amendments changed the classification of Block No. 1 from a ‘B’ to a ‘D’ residential zone. At a public hearing on November 19, 1945, the zoning ordinance as amended was adopted by the Common Council, and on November 20, 1945, was approved by the Mayor and thereafter duly published according to law. The ordinance introduced on October 1, 1945, and the notice of the public hearing set for October 15, 1945, were published on October 3, 1945, in the Plainfield-Courier-News. The ordinance as amended on November 5, 1945, and the notice of the public hearing set for November 19, 1945, were published in the same newspaper on November 14, 1945. Thus, the ordinance as introduced was published twelve days, and the ordinance as amended five days, before date set for hearing thereon.

The prosecutor below contended and the Supreme Court held that the ten day or more publication period mentioned in R.S. 40:55-34, N.J.S.A., applies not only to a zoning ordinance as introduced, but also to any amendment thereof made in the course of passage. Since publication of the ordinance as amended had been for only five days, the Supreme Court held it had not been validly enacted. In this the Supreme Court erred.

The procedure for the passage of municipal ordinances is set forth in R.S. 40:49-2, N.J.S.A., which appears in the Revised Statutes under the subtitle ‘Municipalities Generally’ and the article title ‘Ordinances Generally.’ All municipal ordinances must comply with this procedure, except insofar as this procedure is changed in whole or part by other sections of the Revised Statutes or by statute enacted after the adoption of the Revised Statutes.

We think the legislative intent would be frustrated if we were to find in a particular enactment any change in the procedure provided in R.S. 40:49-2, N.J.S.A., for the passage of municipal ordinances which the language of the particular enactment does not clearly require.

As to publication and hearing, R.S. 40:49-2, N.J.S.A., provides:

‘a. Every ordinance after being introduced and having passed a first reading shall be published at least once in a newspaper published and circulating in the municipality, if there be one, and if not, in a newspaper printed in the county and circulating in the municipality, together with a notice of the introduction thereof and the time and place when and where it will be further considered for final passage. If there by only one such publication the same shall be...