Myers v. Cedar Grove Tp.

• Decision Date: 06 November 1961
• Docket Number: No. A--13,A--13
• Citation: 174 A.2d 890,36 N.J. 51
• Parties: John E. MYERS, Plaintiff-Respondent, v. TOWNSHIP OF CEDAR GROVE et al., Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 51

36 N.J. 51

174 A.2d 890

John E. MYERS, Plaintiff-Respondent, v. TOWNSHIP OF CEDAR GROVE et al., Defendants-Appellants.

No. A--13.

Supreme Court of New Jersey.

Argued Sept. 25, 1961.

Decided Nov. 6, 1961.

Samuel Rosenblatt, Montclair, for defendants-appellants (Nicholas H. Hagoort, Jr., Montclair, of counsel on the brief.)

Francis F. Welsh, Montclair, for plaintiff-respondent.

The opinion of the court was delivered by

PROCTOR, J.

The sole question presented on this appeal is whether a municipality which has adopted one of the plans of government under the Optional Municipal Charter Law, L. 1950, c. 210, N.J.S.A. 40:69A--1 et seq. (Faulkner Act), must maintain a separate and independent board of health under Title 26 of the Revised Statutes, N.J.S.A. 26:1--1 et seq. (Health and Vital Statistics).

Since July 1, 1955, the Township of Cedar Grove has been governed under the Council-Manager Plan B provisions of the Faulkner Act. Prior to the above date and since at least May 1947, Cedar Grove was governed by a Board of Commissioners under the Walsh Act. R.S. 40:70--1 et seq., N.J.S.A. In May 1947 the plaintiff was appointed Plumbing Inspector by that board and was reappointed periodically thereafter. In November 1953 an ordinance creating a board of health was adopted; this board reappointed plaintiff twice before the new form of government was established. No question is raised as to the legality of the reappointments.

On July 29, 1955 the new municipal Council adopted its governmental organization ordinance providing, Inter alia, for a Board of Health, consisting of five members appointed by the Council, and giving the Township Manager power to appoint and supervise all employees of the Board including the Plumbing Inspector. This Board has functioned only in an advisory capacity. Plaintiff has not been formally appointed under the new plan of government, but has nevertheless continued to serve as Plumbing Inspector. From 1947 through 1955 he was compensated to the extent of one-half the plumbing fees collected. In 1956 his remuneration was changed by a salary ordinance of the Council to $2,500 and $300 expenses annually. This was increased to $2,600 and $300 expenses in 1957 and 1958. Upon the recommendation of the Manager, on March 10, 1959, the Council adopted an ordinance changing plaintiff's rate of compensation to $5 for each inspection and $10 for each license examination.

Dissatisfied with the change in the method and amount of his remuneration, plaintiff, as Plumbing Inspector and as a taxpayer, brought an action in the Superior Court, Law Division, contending that (1) the salary ordinance of March 10, 1959, and the organization ordinance of July 29, 1955, were void as being in violation of the Local Boards of Health chapter (N.J.S.A. 26:3--1 to 91) to Title 26 because the Township is required to maintain an autonomous board of health with the power to appoint and fix the compensation of its employees, including Plumbing Inspectors, under N.J.S.A. 26:3--19; and (2) the salary ordinance of March 10, 1959, was a reduction of salary in violation of plaintiff's tenure rights acquired under N.J.S.A. 26:3--26. Plaintiff demanded the court hold the ordinances void, direct the defendant Board of Health to adopt an ordinance establishing his annual salary at $2,600 plus $300 expenses and direct the defendant Council to pass an emergency appropriation to provide for the above amounts.

The trial court held the autonomous board of health encompassed by N.J.S.A. 26:3--1 was abolished when Cedar Grove adopted a plan of government under the Faulkner Act. The court further held that the Township Manager has the power to appoint and supervise the plaintiff. Although holding plaintiff had tenure, the court determined, as a matter of fact, he had not been reduced in salary or position.

The plaintiff appealed to the Appellate Division which reversed the trial court in part. 66 N.J.Super. 530, 169 A.2d 689 (1961). It determined that the 'statutory' autonomous board of health under N.J.S.A. 26:3--1 continued to be applicable in Cedar Grove, despite the adoption of Council-Manager government in 1955. Therefore it held the ordinance of July 29, 1955, insofar as it authorized the Manager to appoint employees of the Board of Health, and the ordinance of March 10, 1959, insofar as it fixed plaintiff's remuneration, were void. And the court directed

'that Cedar Grove must and should forthwith, pursuant to R.S. 26:3--1 et seq., as amended, N.J.S.A., adopt an ordinance providing for the establishment and manner of appointment of the members of the statutory board of health. When established, that board will have exclusive jurisdiction over the employment and compensation of its personnel, including plaintiff, as provided by R.S. 26:3--19, as amended.' 66 N.J.Super. at p. 544, 169 A.2d at p. 697.

The court affirmed the remainder of the trial court's judgment, thereby denying plaintiff's claim with respect to compensation. The only difference in the determinations of the two courts is that the Appellate Division, contrary to the result reached by the trial court, would require an independent board of health to be maintained in a Faulkner Act municipality such as Cedar Grove. We granted defendants' petition for certification. 35 N.J. 59, 171 A.2d 146 (1961).

Defendants do not challenge plaintiff's right to tenure, and plaintiff does not question those parts of the judgment adverse to him. The sole question before us, therefore, is whether Cedar Grove, as a Faulkner Act municipality, is required to maintain an independent board of health under N.J.S.A. 26:1--1 et seq.

The Appellate Division reasoned that 'important policy considerations underlying the Board of Health Act (Title 26) are such that nothing short of a positive indication of an intent to supersede, * * * (independent boards) in municipalities will suffice to effect such a result where contended to flow from the adoption of legislation establishing new forms of local government.' 66 N.J.Super. at p. 544, 169 A.2d at p. 697. The court found no such expression in the Faulkner Act. It further determined that N.J.S.A. 26:3--1 et seq. was a 'general law,' applicable to municipalities generally, and in particular to one functioning under the Faulkner Act by virtue of N.J.S.A. 40:69A--26 and 28. In concluding that an autonomous board of health under N.J.S.A. 26:3--1 continued in Cedar Grove notwithstanding its adoption of Council-Manager government, the court relied heavily on a statement in one of the reports of the Commission on Municipal Government which proposed the legislation finally adopted as the Faulkner Act. Final Report of the Commission on Municipal Government, at p. 13 (1949). (This was the second in a series of reports.) The court found that the language in the report clearly indicated the Commission's intent to require independent boards of health in Faulkner Act municipalities. The court also determined that N.J.S.A. 40:69A--207, which abolished existing 'offices' upon the adoption of one of the Faulkner Act plans of government did not terminate the existing Board of Health, but only abolished the offices of the members of that Board so that new members could be appointed pursuant to N.J.S.A. 26:3--5.

Our problem is to determine the relationship between the relevant provisions of the Faulkner Act (N.J.S.A. 40:69A--1 et seq.) and Title 26 of the Revised Statutes (N.J.S.A. 26:1--1 et seq.). In order to do this, we should first ascertain the extent of the powers given the Council and Manager under the Faulkner Act. That act provides 'Each municipality governed by an optional form of government pursuant to this act shall, subject to the provisions of this act or other general laws, have full power to:

(a) organize and regulate its internal affairs, and to establish, alter, and abolish offices, positions and employments and to define the functions, powers and duties thereof and fix their term, tenure and compensation; * * *.' N.J.S.A. 40:69A--29.

N.J.S.A. 40:69A--88 vests all powers of the municipality and the determination of all matters of policy in the Council, except as otherwise provided in the act or general law. There are no provisions in the act restricting these powers in health matters. N.J.S.A. 40:69A--95 provides, Inter alia, that the Manager shall be the chief executive and administrative official of the municipality and authorizes him to appoint and remove all municipal employees except those expressly excluded from his control by other sections of the act. There are no sections of the act restricting these powers in health matters.

All these grants of power are to be construed liberally in favor of the municipality. N.J.S.A. 40:69A--30 provides:

'The general grant of municipal power contained in this article is intended to confer the greatest power of local self-government consistent with the Constitution of this State. Any specific enumeration of municipal powers contained in this act or in any other general law shall not be construed in any way to limit the general description of power contained in this article, and any such specifically enumerated municipal powers shall be construed as in addition and supplementary to the powers conferred in general terms by this article. All grants of municipal power to municipalities governed by an optional plan under this act, whether in the form of specific enumeration or general terms, shall be liberally construed, as required by the Constitution of this State, in favor of the municipality.'

The act provides that the newly formed government will commence its operation with a clean slate (with specific exceptions) of offices and personnel. The pertinent part of N.J.S.A. 40:69A--207 reads:

'At 12 o'clock noon on the effective date of an optional plan adopted pursuant to this act, all offices then existing in such municipality shall be abolished and the terms of all elected and...