On appeal to the Appellate Division. Certified to the Supreme Court on its own motion.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld and Burling. For affirmance -- None. The opinion of the court was delivered by Case, J.
Clinton B. Lohsen, formerly and claiming still to be municipal manager of the Borough of Keansburg, instituted this suit in the Superior Court, Law Division, by filing a complaint entitled "Complaint in Lieu of Certiorari and Quo Warranto " attacking (1) a resolution of the municipal council of the borough passed on May 24, 1949, by the affirmative vote of two of the three members, purporting to appoint Ralph O. Williams as acting municipal manager and (2) a direction from the council calling upon Lohsen to turn in the records, books and property of the borough. The action of the council in effect removed Lohsen from office, although there had been no charges, no hearing and no resolution of direct removal. Defendants answered. Affidavits were filed and a stipulation was made at pretrial conference, followed by cross motions for summary judgment. The court concluded that the successive appointments under which plaintiff served contained provisions inconsistent with tenure, that plaintiff in accepting the appointments was governed by those provisions and that he thereby waived whatever claim of tenure he might otherwise have had under either R.S. 40:82-3 or R.S. 40:47-60. The motion by plaintiff for summary judgment was denied and the like motion by defendants was granted. Plaintiff appeals.
Plaintiff was originally appointed on May 3, 1927. The resolution of appointment fixed an annual salary but made no mention of term. There were subsequent resolutions: one, passed May 28, 1929, making an appointment "to hold office during the pleasure of the municipal council;" another, passed May 23, 1933, "to hold office until December 31, 1933;" others, passed respectively on May 25, 1937, May 27, 1941, and May 22, 1945, appointed plaintiff "to serve at the pleasure of the municipal council." Following each appointment plaintiff took and filed an oath of office. Apparently he served from December 31, 1933, to May 25, 1937, without formal appointment. From his assumption of office in May, 1927, until May 24, 1949, he rendered uninterrupted service and was paid
the prescribed salary. At the municipal election on May 10, 1949, a ticket placed in opposition to the previous administration succeeded in electing two of the three borough councilmen. On May 24, 1949, the new council, as stated above, appointed Ralph O. Williams acting municipal manager. Williams was sworn forthwith and assumed the duties of the office. On the face of the statute, infra, it seems, prima facie, that plaintiff has acquired tenure. We therefore take up defendants' points, seriatim, arguing contra.
Defendants first argue that the term of office of a municipal manager cannot extend beyond the term of the municipal council appointing him. That has no legal force unless to it be appended the proviso that the statute is not otherwise; and with the inclusion of that hypothesis the point, in our opinion, falls.
The municipal manager form of government was put on the statute books by ch. 113, P.L. 1923. It became effective as to any municipality only when adopted by a referendum vote. The Borough of Keansburg voted to adopt the legislation. Section 802 of the act required the municipal manager to become a resident of the municipality within three months after his appointment and to continue a resident throughout his period of service; it became R.S. 40:82-2 and has remained the same upon the issues here presented. Section 803 provided that the municipal manager should "hold office as long as he shall perform the duties of his office to the satisfaction of the municipal council. He may be removed at any time by a resolution signed by one more than a majority of the municipal council setting forth the reasons for such removal." Section 803 appeared in the Revision of 1937 as R.S. 40:82-3; it had already been amended by ch. 264, § 4, P.L. 1927, which provided that the resolution of removal might be signed by a majority of the municipal council instead of, as theretofore, by one more than a majority, and by ch. 159, P.L. 1936, which restored the requirement for signature by one more than a majority and added a provision that the removal should be "for cause, after hearing." The full reading
of R.S. 40:82-3, as it was at the times of plaintiff's last three appointments, was as follows (ch. 159, P.L. 1936):
"The municipal manager shall hold office as long as he shall perform the duties of his office to the satisfaction of the municipal council. He may be removed at any time for cause, after hearing, by a resolution signed by one more than a majority of all the members of the municipal council setting forth the reasons for such removal."
The section was further amended by ch. 202, P.L. 1948, to read as follows:
"The municipal manager shall hold office as long as he shall perform the duties of his office to the satisfaction of the municipal council. During the first three consecutive calendar years of his employment he may be removed for or without cause and after said three-year period of employment he may be removed only for cause, after hearing, by a resolution signed by one more than a ...