Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
This is an appeal from a judgment for defendant on the pleadings in an action in lieu of prerogative writ testing the validity of Ordinance No. 445 adopted by the Borough of Belmar. The appeal comes before us on an agreed statement in lieu of record. R.R. 1:6-2.
The Police Department of Belmar was established by Ordinance No. 297, adopted October 9, 1934 and providing for its "creation, control and regulation." This ordinance contains no reference to salaries or working hours. On May 26, 1953 the governing body passed Ordinance No. 421 fixing salaries to be paid to members of the police department, effective January 1, 1954 if first approved by referendum vote. On the same day it passed Ordinance No. 422, adopting the provisions of L. 1948, c. 341 (N.J.S.A. 40:11-13.2 to 13.7), fixing an 8-hour day and a 40-hour week for uniformed
members of the police department, with the proviso that they might be summoned and kept on duty during any period of emergency. This ordinance was to be effective only upon submission to and approval by the voters. Ordinance Nos. 421 and 422 were duly approved by the electorate.
Ordinance No. 445, adopted by the governing body in September 1954, purported to amend and supplement Ordinance No. 297 by adding a new section which read:
All members of the Police Department shall devote their entire working time to police service or other municipal service as directed by the Board of Commissioners, and shall engage in no other business, profession or occupation, either part time or full time, unless granted permission to do so by the Board of Commissioners."
Plaintiffs, comprising all the members of the Belmar Police Department, brought this action in lieu of prerogative writ to have Ordinance No. 445 declared null and void on the following grounds: (1) it is arbitrary, unjust, oppressive and unreasonable; (2) it is loosely drawn, illusory, and subject to ambiguities and conflicting judicial interpretations; (3) it attempts to circumvent Ordinance No. 422, approved by referendum, thereby destroying its provisions and benefits; (4) it interferes with the vested rights and impairs the contractual obligations of present members of the police department; and (5) not having been adopted by referendum, the ordinance cannot impliedly amend Ordinance No. 422 which was submitted to and approved by the voters. After answer filed there were countermotions for summary judgment on the pleadings. R.R. 4:12-3. The Law Division entered judgment in favor of defendant and plaintiffs appeal.
The Home Rule Act, R.S. 40:47-1, expressly authorizes the governing body of a municipality to "make, amend, repeal and enforce ordinances to establish, maintain, regulate and control a police department and force, * * *; to prescribe and establish rules and regulations for the government and discipline thereof; * * *." The Belmar Board of Commissioners therefore clearly had the right not only to pass the original ordinance (No. 297) establishing the police
department, but also any amendatory or supplementary ordinance setting up reasonable regulations for the government and discipline of the members of the department, including the control of their off-duty activities. Alcutt v. Board of Police Commissioners of Trenton , 66 N.J.L. 173 (Sup. Ct. 1901), affirmed 67 N.J.L. 351 (E. & A. 1902); Hofbauer v. Board of Police Commissioners of East Orange , 133 N.J.L. 293 (Sup. Ct. 1945).
We do not agree that Ordinance No. 445 here under attack attempts to circumvent Ordinance No. 422 or that, like the latter, it had to be adopted by referendum. No. 422 dealt with one subject, and one subject only; it fixed the hours of employment of uniformed members of the Belmar Police Department at no more than eight consecutive hours in any one day or 40 hours in any one week, except in case of emergency. No. 445 did not affect this ordinance, but simply dealt with the prohibition against policemen engaging in some other business, profession or occupation outside of work hours except where permitted to do so by the governing body. It not only expressly purported to amend and supplement Ordinance No. 297, creating the police department, but was germane to its subject matter. In testing an amendatory ordinance with respect to municipal power to enact it and the method ...