Upper Penns Neck Tp., Salem County v. Lower Penns Neck Tp., Salem County

• Decision Date: 23 June 1952
• Docket Number: No. L--2600,L--2600
• Citation: 89 A.2d 727,20 N.J.Super. 280
• Parties: UPPER PENNS NECK TP., SALEM COUNTY, et al. v. LOWER PENNS NECK TP., SALEM COUNTY, et al.
• Court: New Jersey Superior Court

Page 280

20 N.J.Super. 280

89 A.2d 727

UPPER PENNS NECK TP., SALEM COUNTY, et al. v. LOWER PENNS NECK TP., SALEM COUNTY, et al.

No. L--2600.

Superior Court of New Jersey Law Division.

June 23, 1952.

John M. Summerill, Jr., Salem, attorney for the plaintiffs.

J. Bernard Rogovoy, Salem, attorney for defendant Township of Lower Penns Neck.

WOODS, J.S.C.

This is an action in lieu of a prerogative writ brought by the Township of Upper Penns Neck, a municipality in the County of Salem, and by Fred F. Foreman, who on February 7, 1949 was appointed by the Governor as magistrate of the 'Municipal Court of the Township of Upper Penns Neck, Township of Lower Penns Neck and Township of Oldmans,' pursuant to the provisions of L.1948, c. 264, § 13, as amended (N.J.S.A. 2:8A--13), and following an intermunicipal agreement entered into by the Township of Upper Penns Neck, the Township of Lower Penns Neck and the Township of Oldmans, as provided by L.1948, c. 264, § 17, as amended (N.J.S.A. 2:8A--17), which reads:

'Two or more municipalities may, by similar ordinances, enter into an intermunicipal agreement to establish a single municipal court with jurisdiction coextensive with the territory of the municipalities party to the agreement. Upon the taking effect of the ordinances establishing such a municipal court, all police courts, magistrate's courts and recorder's courts, by whatever name called, theretofore existing in the respective municipalities shall be abolished and their functions, powers and duties, records, property, and pending cases shall be transferred to the municipal court so established.'

The ordinance establishing the aforesaid municipal court was adopted by the Township of Upper Penns Neck on December 29, 1948. A like ordinance was adopted by the Township of Lower Penns Neck on December 28, 1948 and by the Township of Oldmans in December, 1948.

No time was fixed for the continuance of this intermunicipal agreement in any of the aforesaid ordinances, and no time is set in the statutes for the continuance of such an intermunicipal agreement; nor is any provision made in the statutes or in the ordinances for the termination or recission of such intermunicipal agreement. The statute and the ordinances provide for the appointment of a municipal judge for a period of three years.

On December 18, 1951, the Township of Lower Penns Neck gave written notice to the Township of Upper Penns Neck and to the Township of Oldmans that it had adopted an ordinance repealing the ordinance adopted on December 28, 1948 and was withdrawing from the intermunicipal agreement.

On December 6, 1951, the Township of Lower Penns Neck adopted an ordinance entitled 'An Ordinance to repeal an Ordinance entitled 'an Ordinance Establishing a Municipal Court of the Township of Upper Penns Neck, Township of Lower Penns Neck and Township of Oldmans, in the County of Salem," which ordinance was to become effective December 31, 1951, and on December 20, 1951 the aforesaid Township of Lower Penns Neck adopted an ordinance entitled 'An Ordinance Establishing a Municipal Court in the Township of Lower Penns Neck, in the County of Salem' to take effect as of January 1, 1952. On January 3, 1952 a municipal judge was appointed by the Township Committee of the Township of Lower Penns Neck.

The plaintiffs contend that the ordinances adopted by the defendant, Township of Lower Penns Neck, are wholly void because they are without the power of the defendant, Township of Lower Penns Neck, to enact for the following reasons:

1. An ordinance enacted under a specifically delegated power cannot be repealed.

2. An ordinance contractual in nature can only be repealed with the consent of the parties thereto.

3. A municipal magistrate is not removable from office during his term except upon charges being preferred and a fair trial given except where the office is abolished for economy.

The sole question for determination is: May a municipality repeal an ordinance adopted pursuant to L.1948, c. 264, § 17, as amended (N.J.S.A. 2:8A--17), which created an intermunicipal agreement establishing a single municipal court for three townships, and thereby withdraw from such agreement?

A municipality derives all of its power and authority from the State, and it is fundamental that the Constitution and general laws of the State are controlling as to the establishment of municipal courts. Article VI, Section I, paragraph 1 of the New Jersey Constitution of 1947 provides as follows:

'1. The judicial power shall be vested in a Supreme Court, a Superior Court, County Courts and inferior courts of limited jurisdiction. The inferior courts and their jurisdiction may from time to time be established, altered or abolished by law.'

Such is the authority given by the Constitution to the Legislature. And the Legislature by an express grant has given every municipality in the State the authority and right to establish and create a municipal court (N.J.S.A. 2:8A--13, 2:8A--17) by ordinance. The municipality must make the decision that a municipal court is necessary, and having done so, it must decide whether it shall have its own municipal court or whether it shall enter into an intermunicipal agreement with an adjoining municipality or municipalities. The statute prescribes the jurisdiction of the court, and provides for the appointment of a magistrate, his qualifications, term of office, other officers of the court and the practice and procedure in such court. But nowhere in the act is there any provision relating to the repeal of the ordinance establishing such court, and it is silent as to the period of time for which such municipal court once created shall continue.

As a general rule, the right to repeal ordinance is a general power which exists by reason of the right to pass ordinances. State (Hudson Telephone Co.) v. Mayor, etc., of Jersey City, 49 N.J.L. 303, 8 A. 123 (Sup.Ct.1887). Justice Garrison Elaborated on this rule in the case of Stemmler v. Borough of Madison, 82 N.J.L. 596, 83 A. 85 (E. & A.1912) by continuing: 'And such in varying form is the statement of the rule when the ordinance is not a contract, or one that is, from its nature, exhausted by a single exercise, 28 Cyc. p. 383, 21 A. & E.Enc.Law, p. 1002.'

It is to be noted that N.J.S.A. 2:8A--13 and 2:8A--17 authorizes 'any municipality, or any two or more municipalities * * * by ordinance or ordinances' to 'establish a municipal court.' 'The power to make includes the power to repeal.' Dillon, Municipal Corporations, p. 314. By implication then, may we resolve the question put to this court' In Stemmler v. Borough of Madison, already cited, Justice Garrison speaking for the Court of Errors and Appeals wrote:

'The implication in question may, of course, be negatived by statutory language, and such, in the present case, the Supreme Court thought was the effect of sections 33 and 58 of the Borough Act of 1897. We do not, however, find in these sections, or elsewhere in the act, anything that abrogates this salutary and well-nigh indispensable rule, which proceeds upon the principle that, when the Legislature confers upon a deliberative body a power to be exercised by it, such grant, without express words, includes the ordinary incidents of the exercise of similar powers by such a body. Such incidents are by this rule presumed to have been in the legislative mind in the selection of the recipient of its delegated power. The nature of the powers to be implied depends, therefore, upon the nature of their recipient; a power conferred upon a judicial body having one set of implications, and a power conferred upon a deliberative body having a totally different set. In every case something is left to implication, and the line cannot logically be drawn short of the exercise of the power by the recipient in accordance with its characteristic mode of procedure.

"Ordinance,' as a term of municipal law, is the equivalent of legislative action, and hence its employment in a statute carries with it by natural, if not necessary, implication the usual incidents of such action. If this were not so, the power to pass an ordinance would not carry with it the power to introduce it, or to refer it, or to amend it, or to move for its reconsideration, or to apply to it any of the legislative or parliamentary usages that universally obtain in deliberative bodies as incidents of legislative action.

'That the right to repeal is as much an incident of ordinary legislative action as the right to enact rests, as we have seen, upon sound authority, and hence must, in reason, be included among those powers that pass by the natural implication that, if recognized at all, as it must be, cannot logically stop short of giving full effect to the legislative will as thus construed.'

There has been no recorded interpretation of this statute in our State and we have been able to find only one case having somewhat similar facts. This is the case of Brown v. Arkansas City, 135 Kan. 453, 11 P.2d 607, 608 (Sup.Ct.kan.1932). Here there was a proceeding in mandamus to require the City of Arkansas City to test the validity of city ordinance No. 886 repealing an earlier ordinance No. 844, which established a city court under the provisions of R.S. 20--1401 to 20--1423. R.S. 20--1401 provided that whenever it was made to appear to the satisfaction of the governing body of the city that there was need for the establishment of a city court in such city, such governing body might establish a city court in such city by ordinance of such city. It prescribed the jurisdiction of the court, the appointment and election of a judge, other officers and their tenure of office, but nowhere in the act was there any provision relating to the repeal of such ordinance. The court said:

'The validity of the original ordinance is conceded, but it is the contention of the city and its mayor and commissioners that R.S. 14--401, which gives the governing...