Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
This action, in lieu of prerogative writ, brought by taxpayers and residents of the defendant Borough of East Paterson, challenges an increase in salary given in 1954 to the defendant Michael Gemza, collector of taxes and treasurer of the borough. Plaintiffs claim that Mr. Gemza, who had been reelected to office, was thereby given a second increase in salary during the term for which he had been reelected and that this contravenes N.J.S.A. 40:46-23:
"The governing body [of a municipality] may, by ordinance, * * * fix and determine the salaries * * * to be paid to each officer and employee of the municipality who, by law, is entitled thereto. * * * In case any officer is re-elected to succeed himself after having served one full term, his salary may be once increased during the term for which he is so re-elected." (Italics added.)
Mr. Gemza was first elected to this office for a four-year term commencing January 1, 1949. At the end of that term he was receiving an annual salary of $3,850 pursuant
to an ordinance adopted in September 1952. In November 1952 he was reelected to that office for a second four-year term commencing January 1, 1953. Subsequently on July 2, 1953 an ordinance was adopted increasing his salary to $4,700 per annum. This ordinance, it is to be noted, was made retroactive to January 1, 1953, the first day of his second term. In the next year, by ordinance adopted June 17, 1954, retroactive to January 1, 1954, his annual salary was increased to $5,950. The ordinance granting this last increase and the salary payable thereunder are attacked by the present action.
Both defendants and plaintiffs moved below for summary judgment. Defendants' motion was granted. Plaintiffs appeal.
There are two issues in the case. The first is whether Mr. Gemza was given two increases in salary during his second term of office, in violation of the statute cited. The issue seems to be a novel one, but we have no difficulty with it. A municipality cannot escape the statutory restriction simply by making the first increase retroactive to the first day of the term.
The statute is a watering down of a provision contained in the original Home Rule Act which allowed neither an increase nor a decrease of the salary of any officer during the term for which he was elected or appointed. For the vicissitudes of the provision, see L. 1917, c. 152, p. 350; L. 1919, c. 9, p. 26; L. 1928, c. 134, p. 279. Provisions similar to that found in the original Home Rule Act appear in a number of state constitutions, statutes and charters of municipalities of other states, 4 McQuillin, Municipal Corporations (3 rd ed. 1949), § 12.198; 62 C.J.S., Municipal Corporations , § 537, and also in charters and statutes in this State. Potter v. Union Township , 91 N.J.L. 129 (Sup. Ct. 1917), affirmed at page 705 (E. & A. 1918); Ries v. West New York , 79 N.J.L. 164 (Sup. Ct. 1909); McEwan v. West Hoboken , 58 N.J.L. 512 (Sup. Ct. 1896); Rightmire v. Camden , 50 N.J.L. 43 (Sup. Ct. 1887); Stuhr v. Hoboken , 47 N.J.L. 147 (E. & A. 1885); see title to N.J.S.A.
40:125-34. The policy of the law has been to enforce these statutory restrictions firmly. Barrus v. Engel , 186 Mich. 540, 152 N.W. 950 (1915).
The defendants argue that the 1952 ordinance expired December 31, 1952; and they conclude from this premise that the ordinance passed in July 1953, which was made retroactive to January 1, 1953, was not an increase in Mr. Gemza's salary during his second term. We need consider only the premise.
The 1952 and other ordinances above mentioned, as well as those adopted in certain previous years, fixed the salaries of a number of, perhaps all, the officers and personnel of the borough, including the collector of taxes. The argument is that since such ordinances were adopted in eight of the nine years preceding 1952, therefore it is to be implied that the ordinance adopted in 1952 was intended to apply only to the calendar year ending December 31, 1952. However only four of these eight ordinances were made retroactive to the first of the year; while the critical one, that adopted in 1952, never took effect until ten days after September 4, 1952. Moreover the one adopted in the preceding year, 1951, took effect June 19, 1951. Some stress perhaps is also put by the defendants upon the words "annual salary," appearing in the ordinances, but in our view these words indicate that each salary was being fixed at a stated rate per annum, not that it was made ...