[44 NJSuper Page 271] This matter is before this court on the complaint, in lieu of prerogative writs, of Leon Raff, a resident, property owner and taxpayer of the Borough of
Fair Lawn. The defendants are Stephen Sesnick, "Chairman of the Fair Lawn Rent Control Board" and the Borough of Fair Lawn.
On June 26, 1956, the Borough Council of Fair Lawn passed Ordinance No. 664. The short title of this ordinance is "Fair Lawn Rent Control Ordinance of 1956." Section 3 of that ordinance created a "Fair Lawn Rent Control Commission" of five members and provided that "each be appointed * * * by the Mayor." Pursuant to that ordinance, the mayor on or about August 14, 1956 appointed the defendant, Stephen Sesnick, chairman of said commission and thereafter he performed the duties of said office.
The Borough of Fair Lawn was and still is governed by "the municipal manager form of government law" (N.J.S.A. 40:79-1 et seq.).
The plaintiff complains that such part of section 3 of Ordinance No. 664 which gives the mayor the appointing power is invalid and the said appointment made by said mayor was therefore invalid. The invalidity is claimed to be due to the fact that it is contrary to the letter and spirit of "the municipal manager form of government law."
An examination of said statute indicates that the powers and duties of the mayor are set forth in N.J.S.A. 40:81-8, and said section specifically provides:
"The powers and duties of the mayor shall be only such as are expressly conferred upon him by this subtitle."
The only appointing power he has under this subtitle is:
"He shall fill vacancies occurring in the trustees of the public library."
N.J.S.A. 40:82-4 sets forth the duties of the municipal manager as follows:
" d. Appoint and remove all department heads and all other officers, subordinates, and assistants for whose selection or removal no other method is provided in this subtitle, supervise and control his appointees, and report all appointments or ...