Nolan v. Witkowski
| Decision Date | 10 July 1959 |
| Docket Number | A--600,Nos. A--585,s. A--585 |
| Citation | 56 N.J.Super. 480,153 A.2d 745 |
| Parties | Ezra L. NOLAN et al., Plaintiffs, v. Charles S. WITKOWSKI et al., Defendants. Meyer PESIN, Murray Greiman, Cyril J. Galvin, Jeremiah J. O'Callaghan, David H. Werther, Patrick A. Kiley, Eugenia M. V. Urbanski-Courtney, Walter J. Hudzin, John J. Lemken, Gustave A. Peduto, William N. Johnson, Francis M. Mclnerney, Eugene E. Mastronardy, individually and as Assistant Corporation Counsels of the City of Jersey City, Plaintiffs- Appellants, v. Charles S. WITKOWSKI, James F. Murray, Jr., Bernard J. Berry, individually, and Charles S. Witkowski, James F. Murray, Jr., Bernard J. Berry, William V. McLaughlin and August W. Heckman, as members of the Board of Commissioners of Jersey City, and City of Jersey City, a Municipal Corporation, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
Isadore Glauberman, Jersey City, for plaintiffs.
John J. Hanlon, Jr., Jersey City, for defendants (John Milton, Jersey City, attorney).
Before Judges PRICE, GAULKIN and FOLEY.
The opinion of the court was delivered by
GAULKIN, J.A.D.
The case in which Ezra L. Nolan is the first plaintiff will be called the Nolan case, and the one in which Meyer Pesin is the first plaintiff will be called the Pesin case. The plaintiffs appeal and the defendants cross-appeal from summary judgments (or denials thereof) entered in each of the above entitled cases. The appeals have been consolidated.
The undisputed facts upon which the court below acted are as follows:
By resolution dated May 21, 1957 the Board of Commissioners of Jersey City (hereafter called Jersey City) appointed Nolan corporation counsel, at an annual salary of $12,000. On May 24 Nolan advised Jersey City that
'I have this day made the following appointments as Assistant Corporation Counsel in the Law Department, effective immediately, at the annual salary set opposite their respective names, viz.:
James F. McGovern, Jr. $9,000
Meyer Pesin 8,500
John J. Witkowski 8,500
Murray Greiman 8,500
Cyril J. Galvin 8,000
Jeremiah J. O'Callahan 7,000
Louis P. Caroselli 7,000
Joseph W. Tumulty 7,000
David H. Werther 6,500
Patrick A. Kiley 6,500
William A. Massa 6,500
Eugenia M. V. Urbanski-
Courtney 6,500
Walter J. Hudzin 6,500
John W. Yengo 6,000
John J. Lemken 6,000
Gustave A. Peduto 6,000
William N. Johnson 6,000
Eugene E. Mastronardy 6,000
Francis M. McInerney 6,000"
On the same day Jersey City passed a resolution 'that this Board consents to, concurs in and ratifies each of the * * * appointments and the salary attached to each of said appointments.'
On March 24, 1959 Jersey City adopted a budget for the year 1959 which provided $77,000 for salaries of the assistants corporation counsel (among whom are Pesin and his 12 co-plaintiffs in the Pesin suit) instead of the sum which would be needed to pay them the above mentioned salaries for the budget year. Pesin and the 12 other assistants immediately started the Pesin action, in lieu of prerogative writ, alleging that
'The effect of said reduction in the budget as finally adopted, by reason of the payments already made to the full complement of 'assistants' since January 1, 1959, leaves the sum of approximately $45,000 to pay the salaries of said 'assistants' for the balance of the year 1959. This sum is completely inadequate to meet the fixed full salaries and compensation due and to grow due to the 'assistants' for the remainder of the year 1959.
'The aforesaid acts of the 'majority bloc' were ultra vires, in that neither the aforesaid quoted statutes nor any other statutes of the State os New Jersey grant to the Board of Commissioners the power to remove said 'assistants,' nor do they grant said Board the power to diminish the salaries of said 'assistants' during their terms of office, directly or indirectly.'
The plaintiffs n the Pesin suit demanded judgment 'Ordering and directing that the Board of Commissioners of the City of Jersey City appropriate an additional $50,000 so that there will be sufficient moneys to pay all of the assistants corporation counsel their full annual salaries for the year 1959.'
On April 7, 1959 Jersey City adopted a resolution reciting:
'* * * that effective immediately and for the period remaining between this date and December 31 of the current year, in order to cause the expenditures for Assistant Corporation Counsels to conform to the program of economy and the budgetary allotment above described, the following Assistant Corporation Counsels be paid the salary set forth after each of their respective names: * * *.'
Then followed the names of the assistants and a figure for each which represented a cut of 55% In his salary for the balance of the year 1959. Jersey City has made no effort to cut Nolan's salary. The assistants, and Nolan on their behalf, objected strenuously to these salary cuts, and pressed the action to compel the increase of the budget. On April 27, 1959 the plaintiffs in the Pesin action made a motion for summary judgment which was denied 'without prejudice to renewal at a later time, on the ground that it was premature.' Pursuant to leave granted, the plaintiffs in the Pesin action appeal from this denial.
On May 5, 1959 the city passed an ordinance (K--1674) which reads, in part, as follows:
'.
The pertinent contents of Ordinance K--1263 will be set forth in detail hereafter. As soon as the May 5 amendment was passed Nolan and the 13 assistants filed the Nolan action, in lieu of prerogative writ, in which they demanded judgment declaring void the April 7 resolution cutting the salaries of the assistants and the May 5 amendment to the ordinance terminating their terms of office.
Each side moved for summary judgment in the Nolan action. The trial court entered summary judgment that the ordinance of May 5 (K--1674) was 'null and void in its entirety'; that Nolan retain his office and the defendants be enjoined from ousting him 'from office and from interfering with the performance of his duties as charged by law'; but that the complaint of the assistants be dismissed because 'the position of the Assistants Corporation Counsel was not properly created by the ordinance K--1263 * * * as amended * * * in that the said ordinances failed to set forth a specific number of Assistants Corporation Counsel and therefore the plaintiffs, Assistants Corporation Counsel cannot maintain this action.' It is from the portion of the judgment in favor of Nolan that Jersey City cross-appeals. The assistance, on the other hand, appeal from the dismissal of their claim in the Nolan action, which dismissal, if proper, ends the Pesin action as well.
All of the plaintiffs insist, and Jersey City denies, that under R.S. 40:171--112 to 116, N.J.S.A., as implemented by the ordinance of Jersey City passed in 1949 (K--1263) and amended in 1955 (K--1482), Nolan and the assistants hold legally created offices; that their terms will end only upon the expiration of the term of the governing body (in 1961); and that in the meantime Jersey City may not remove Nolan nor any of the assistants, nor reduce the salaries or the number of the assistants.
The 1949 ordinance (K--1263) provides that
'The Corporation Counsel shall be appointed for a term coextensive with that of the Board of Commissioners appointing him and the term of office of the Assistant Corporation Counsels, * * * shall expire with the term of office of the Corporation Counsel appointing them, unless sooner removed by him. * * *'
This was repeated in the 1955 amendment to the ordinance (K--1482).
Sections 112 to 116 of R.S. 40:171, N.J.S.A. were construed in Jersey City v. Dept. of Civil Service, 7 N.J. 509, 81 A.2d 777 (1951), and that construction is, of course, binding upon us. In that case the Supreme Court pointed out that sections 115 and 116 of R.S. 40:171, N.J.S.A. were L.1911, c. 175, and that 'although not in express words a supplement to or amendment of (L.1894, c. 258) this statute effectively so operated' (7 N.J. at page 518, 81 A.2d at page 781). Sections 112 to 114, on the other hand, were L.1920, c. 65, L.1928, c. 97, and control 'the legality of appointments made after April 5, 1920, the effective date of that act' (7 N.J. at page 518, 81 A.2d at page 781). The court held that even though said L.1894, c. 258, was repealed by L.1931, c. 381, the 1894, 1911 and 1920 acts 'are In pari materia, and therefore, must be construed together so as to effectuate general legislative policy' (7 N.J. at page 522, 81 A.2d at page 783).
Since 1894 that legislative policy has been, and is now, that first class cities must have a law department, which shall consist of at least a city counsel. So far as we have been informed, in no other type of numicipality is that mandatory. Cf. R.S. 40:171--109, N.J.S.A.; Brenner v. City of Bayonne, 132 N.J.L. 47, 38 A.2d 569 (Sup.Ct.1944), affirmed o.b. 132 N.J.L. 469, 41 A.2d 136 (E. & A.1945).
In fact, the 1894 act was self-executing and itself 'constituted a direct creation of such a department' (7 N.J. at page 522, 81 A.2d at page 783). For the purposes of this case it is significant to note that the 1894 act provided that in each first class city 'there shall be a law department which shall consist of the following officers: a city or corporation counsel, a city or corporation attorney, and an...
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