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Maltese v. Township of North Brunswick6/20/2002
a void contract is not validated by performance. Yet there is a distinction between a purported contract which the municipality is utterly without capacity to make under any circumstances and a contract within the general powers of the corporation but void and unenforceable for lack of an appropriation, . . . or for non-conformance with a statutory condition precedent, as distinguished from an ultra vires contract merely voidable for want of authority or for an irregularity in the exercise of the contractual power. . . . [Bauer v. City of Newark, 7 N.J. 426, 434 (1951) (internal citations omitted).]
In affirming dismissal of the plaintiff's action for payment under his contract with the mayor and corporation counsel, the Court ruled that the distinction between an ultra vires contract voidable for want or authority or an irregularity in the exercise of the contractual power (ultra vires in the secondary sense), and a purported contract which the municipality is utterly without the capacity to make (ultra vires in the primary sense),
has no significance here. The purported contract is rendered null and void by the statute; and the statutory policy may not be set at naught by indirection. The particular ultra vires act can be adopted or ratified only by full compliance with the statutory prerequisites to contractual liability in the first instance. . . . Where an express promise to pay for a service to be performed is ultra vires and void for failure of conformance with statutory restrictions upon the exercise of the contractual power, an implied promise to pay cannot arise from the acceptance of the service. . . . The law will not imply a promise to pay when that course would flout an explicit statutory mandate; and, by the same token, there can be no recovery on a quantum meruit. The law will not thus permit the annulment of the statutory limitation upon the contractual authority of municipalities. Here, it is expressly provided by R.S. 40:2-29, cited supra, that "no moneys shall be paid" on a purported contract thereby made void. And it goes without saying that, in keeping with the general law of contracts, the valid provisions of a contract which do not in their entirety satisfy the statutory policy are enforceable, if severable. [Bauer, supra, 7 N.J. at 435 (internal citations omitted).]
In Vogt v. Borough of Belmar, 14 N.J. 195 (1954), the Court ruled that the municipality was estopped from denying workers' compensation benefits to a minor elected to junior membership in the municipality's fire company when the minor, acting under the direction of superior officers, was injured while helping to extinguish a fire. At the time of the accident, the minor plaintiff had not as yet been approved as a junior fireman by formal resolution of the governing body, as required by local ordinance, even though he had been so approved by the volunteer fire company. Id. at 201. Subsequent to the accident, the municipality adopted a resolution confirming the election of the plaintiff to junior membership. Ibid. In applying equitable estoppel against the municipality, the Court stated, in pertinent part:
It would be contrary to the plainest principles of justice if the municipality, having accepted active public fire service from "junior" firemen under circumstances indicating a waiver of any local law to the contrary, were now permitted to invoke the formal requisites of local law to defeat appellant's claim for compensation for the injury suffered in the rendition of that hazardous service. In analogy to estoppel relating to contracts, a municipality may be estopped to deny the exercise of its consensual authority under the conditions here obtaining. . . . . . . Here, the acceptance
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