City of Clifton v. Zweir

Decision Date22 January 1962
Docket NumberNo. A--24,A--24
Citation177 A.2d 545,36 N.J. 309
PartiesCITY OF CLIFTON, a municipal corporation of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. Stanley ZWEIR, Frank F. Staudt and Stephen Goceljak, Jr., Defendants-Appellants and Cross-Respondents, and Charles F. Hahn, Defendant-Respondent and Cross-Appellant, and William Holster, Defendant-Respondent, and James J. Talamini, Intervenor-Respondent.
CourtNew Jersey Supreme Court

John G. Dluhy, Clifton, for appellants and cross-respondents Zweir, Staudt and Goceljak.

Edward F. Johnson, Clifton, for respondent and cross-appellant City of Clifton.

William N. Gurtman, Passaic, for respondent and cross-appellant Hahn (Gurtman and Schomer, attorneys).

Israel Friend, Clifton, for respondent Talamini (Friend and Friend, Clifton, attorneys).

No appearance was made or brief filed for respondent Holster.

The opinion of the court was delivered by


The Municipal Planning Act of 1953, N.J.S.A. 40:55--1.1 et seq., applicable to all municipalities provides for local planning board membership in four categories:

Class I--'mayor', to serve a term corresponding to his official tenure;

Class II--'one of the officials of the municipality to be appointed by the mayor,' whose term 'shall terminate with the term of the mayor appointing him';

Class III--'a member of the governing body to be appointed by it' for a term corresponding to the appointee's official tenure;

Class IV--'a specified number of other citizens of the municipality to be appointed by the mayor' to serve for designated periods. (N.J.S.A. 40:55--1.4).

This case concerns the problem of where the appointing authority resides for classes II and IV and the identity of the class I member in a municipality governed by the 1923 manager form of government law. R.S. 40:79--1 et seq., N.J.S.A.

The problem arises because of a maze of further statutory provisions immensely complicating the seemingly simple language just quoted. They are found within the planning act itself, included in that general statute in an effort to adapt this membership and appointment section to all the various forms of local government existing in this State. They are also found in the manager law, where efforts to insulate that special form of municipal charter from inconsistent or inappropriate provisions of general governmental law open the door to claims of conflict and supremacy. The various possibilities have resulted in the parties' contending, respectively, that the appointing authority is vested in the mayor, the manager and the municipal council as the governing body and that the Class I member is the mayor and the manager. The Law Division decided in favor of the manager on both facets. 66 N.J.Super. 500, 169 A.2d 214 (1961). The ensuing appeals of those asserting the other positions were certified on our own motion while pending in the Appellate Division.

These other pertinent legislative provisions can well be sketched at this point in order that the whole statutory picture may be in mind at the outset. We should begin with the definition section of the planning act, which says that "mayor' means The elected official who serves as The chief executive of the municipality, whatever his official designation may be.' N.J.S.A. 40:55--1.2 (emphasis supplied). On its face the definition does not quite fit either the manager or the mayor under the manager form of government.

Under the manager law the manager is 'the chief executive and administrative officer' of the municipality, R.S. 40:79--2 and 40:82--4(a), N.J.S.A. with particular power to '(a)ppoint and remove all department heads and all other officers, subordinates, and assistants for whose selection or removal no other method is provided in this subtitle.' R.S. 40:82--4(d), N.J.S.A. This accords with the fundamental theory of the manager form of government--a distinct separation of policy determination and legislative power, which resides in the elected municipal council, R.S. 40:81--9, 10, 13 and 16, N.J.S.A. from administrative and executive functions, which repose in the professional manager, R.S. 40:82--4, N.J.S.A. National Municipal League, Model City Charter xv-xvi (5th ed. 1941); Final Report of the N.J. Commission on Municipal Government 2, 23--24 (1949); Rhyne, Municipal Law 8--9 (1957). See Ware v. Board of Commissioners of Cape May City, 120 N.J.L. 48, 197 A. 726 (Sup.Ct.1938), affirmed 121 N.J.L. 545, 3 A.2d 640 (E. & A.1939); Lohsen v. Borough of Keansburg, 4 N.J. 498, 506, 73 A.2d 177 (1950); Townsend v. Pequannock Township, 47 N.J.Super. 294, 298, 135 A.2d 708 (Law Div.1957); Edelstein v. City of Asbury Park, 12 N.J.Super. 509, 513, 79 A.2d 860 (App.Div.1951).

The manager is not, however, an 'elected official,' at least in common parlance. He is 'appointed' by the council to serve at its pleasure, subject to the proviso that after three years he may not be removed except for cause following hearing. N.J.S.A. 40:81--11 and 40:82--3.

The mayor, on the other hand, while an 'elected official,' in the sense that he is one of the popularly elected council members chosen for the post at the organization meeting by a majority vote of that body, R.S. 40:81--7, N.J.S.A., cannot be considered 'the chief executive,' at least in the way that term is used in the manager act. His powers and duties, only those expressly conferred by that law, R.S. 40:81--8, N.J.S.A., are so limited that he is in reality no more than a presiding and ceremonial officer. As far as appointments are concerned, the law specifically provides that '(i)n any act or ordinance a provision conferring the power of appointment (except as to members of the board of education and trustees of the public library) or other power upon the mayor or other executive head of the municipality shall be construed as meaning the municipal manager in a municipality' so governed. R.S. 40:82--5, N.J.S.A.

The manager law contains no provision dealing with agencies, like the planning board, which have policy-making functions or quasi-judicial powers, as it does with respect to executive and administrative departments, boards and officers. See R.S. 40:81--10, N.J.S.A. 1 Indeed, the law was enacted before the original planning act of 1930, R.S. 40:55--1 et seq., N.J.S.A., or the comparable zoning enabling act of 1928, R.S. 40:55--30 et seq., N.J.S.A. 2 It may be further noted that the council is given express power of appointment only as to the manager, assessors, auditor, treasurer, clerk, attorney and advisory boards having authority limited to the making of investigations and recommendations. N.J.S.A. 40:81--11; R.S. 40:81--13 and 40:81--16, N.J.S.A. Other sections of the manager act which deal with the relation of that statute to other laws should be mentioned. Every municipality so governed is authorized generally to exercise 'all powers delegated to such municipality by any other general or special law, not inconsistent with the powers enumerated herein', R.S. 40:79--4, N.J.S.A. It is particularly specified that general law applicable to all municipalities (R.S. 40:42--1 et seq., N.J.S.A., which includes the chapter relating to planning and zoning, R.S. 40:55--1 et seq., N.J.S.A.) shall be applicable in manager communities 'whenever not inconsistent with the provisions' of the manager act itself, R.S. 40:79--5, N.J.S.A. See also R.S. 40:80--10, N.J.S.A. The same thought is further expressed strongly in negative fashion by this language: 'No law, general or special, or any provision thereof, affecting the government of any municipality governed by this subtitle and contrary to or inconsistent with the provisions hereof, shall apply to such municipality * * *,' with an exception not here pertinent. N.J.S.A. 40:80--12.

It is important, too, to throw into the scales the prior legislative development of the 1953 planning act provisions relating to board membership and appointment. The original 1930 statute had identical language in the section prescribing the composition and naming of the board, R.S. 40:55--3, N.J.S.A., except that the Class I member was described as 'mayor, ex-officio.' However, the definition of 'mayor,' set forth in R.S. 40:55--1, N.J.S.A., was vastly different. It then read: "Mayor' means The chief executive of the municipality, whether the official designation of his office by mayor, Manager or otherwise.' (Emphasis supplied) 3 This definition was, in turn, radically changed by the extensive amendment of the original act accomplished through L.1948, c. 464. By section 1 thereof, it was made to read: "Mayor' means The chief executive of the municipality, whatever his official designation may be Except that in the case of municipalities governed by municipal council and municipal manager the term 'mayor' shall not mean the 'municipal manager' but shall mean the mayor of such municipality.' (Emphasis supplied) Thus it remained until the 1953 act repealed all earlier legislation, N.J.S.A. 40:55--1.28, and recast the definition in the form quoted at the beginning of this opinion.

To get to the specifics of the case before us--Clifton adopted the manager form of government in 1934. In 1943 it established a planning board by ordinance under the authority of the 1930 planning act. The ordinance provided--and it has never been amended--for the appointment of Class II and IV members by the mayor, in the language of that law, despite and without mention of the statutory definition of that term by which, as has been said, 'mayor' meant 'manager.' The ordinance also followed the statutory language in designating the Class I member to be the 'mayor, exofficio.' Since the passage of the 1953 act the Clifton board has continued and been governed by that statute. N.J.S.A. 40:55--1.27.

Until November 1, 1960, appointments of the Class II and IV members of the board had always been made by the mayor, regardless of the particular planning law definition in...

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