For the prosecutor, Osborne, Cornish & Scheck (Harry V. Osborne and Ervin Fulop, of counsel).
For the defendant the city of Elizabeth, Edward Nugent.
For the defendant Thomas P. Luchio, Daniel J. O'Hara.
Before Brogan, Chief Justice, and Justices Bodine and Heher.
The opinion of the court was delivered by
HEHER, J. The proceedings under review are, first, a resolution adopted by the council of the city of Elizabeth on April 5th, 1937, creating the "position of Assistant City Clerk * * * to assist the City Clerk and act in his absence," and appointing defendant Luchio to the position so created at an annual salary of $2,500, and the action of the State Civil Service Commission in classifying the position "in the exempt division of the classified service, in accordance with section 13-1 of chapter 156, laws of 1908, as amended by chapter 51, laws of 1914," all returned pursuant to a writ of certiorari issued on February 1st, 1938, on petition presented on September 2d, 1937; and, second, an ordinance adopted by the municipal governing body on April 5th, 1938, creating the "position of Assistant City Clerk * * * for a term of three (3) years," and "until his successor shall have been duly appointed and qualified," at an annual salary of $2,500, and prescribing that the incumbent "shall be under the orders and direction of the City Clerk and City Council" of the municipality, and shall have, "in the opinion of the City Clerk," among other qualifications, a familiarity with certain statutes and ordinances, the "bulletins of the State Commissioner of the Alcoholic Beverage Control, and the rules and regulations" of the local board of alcoholic beverage control, returned in obedience to the command of a writ of certiorari issued on April 12th, 1938.
First: As to the resolution:
The legislature has decreed that this delegated power to create municipal offices and positions, and to prescribe the compensation and the duties appertaining thereto, involving as it does an increase of the financial burden of local government, shall be exercised only by ordinance.
Article XIV, section 1, of the Home Rule act of 1917 (Pamph. L., p. 352; R.S. 1937, 40:48-1) invests the municipal
governing body with authority to provide, by ordinance, "for the employment and compensation of such officials and employes, in addition to those provided for by statute, as may be deemed necessary for the proper and efficient conduct of the affairs of the municipality," and to "prescribe and define, except as otherwise may be provided by statute, the duties and terms of office of all officers, clerks and employes of the municipality." And article XIII, section 1, of that enactment, as amended by chapter 9 of the laws of 1919 (Pamph. L. 1917, p. 350; Pamph. L. 1919, p. 26; R.S. 1937, 40:46-23), authorizes the governing body, also by ordinance, "to fix and determine the amount of salary, wages and compensation to be paid each officer, employer (sic), servant and agent of such municipality who, by law, is entitled to be paid a salary, wage or compensation."
The primary design of these provisions was to afford public notice of the particulars of a proposed exercise of such power, and thus to secure conformance with the basic statutory consideration, i.e., the "proper and efficient conduct of the affairs of the municipality." They have been so construed. Eckerson v. City of Englewood, 82 N.J.L. 298; affirmed, 83 Id. 627; Connors ...