Price, Schettino and Gaulkin. The opinion of the court was delivered by Price, S.j.a.d.
By this appeal plaintiff seeks to reverse the action of the Superior Court, Law Division, in entering summary judgment in favor of defendants in a proceeding in lieu of prerogative writ in which plaintiff challenged the propriety of the temporary appointment of defendant Joseph Berenbach by the City of Passaic to the position of sanitation general foreman. Plaintiff sought also a declaration declaring null and void that portion of an ordinance of the defendant municipality which purportedly created that position. Plaintiff predicated his right to institute this action upon his standing as a resident and taxpayer of Passaic in reliance on Meyers v. Mayor and Council of Borough of East Paterson , 37 N.J. Super. 122 (App. Div. 1955), affirmed 21 N.J. 357 (1956).
In 1950 defendant municipality passed an ordinance creating the position of sanitation general foreman, which ordinance, it was agreed by respective counsel on this appeal, defined the duties of said position as follows:
"Supervises and works with several foremen and employees engaged in lifting garbage and ash containers from curbs to refuse trucks and emptying containers into trucks; establishes and maintains schedules of garbage and ash collection; supervises the proper handling of containers to prevent damage; gives suitable assignments to foremen and employees and supervises their work; supervises the obtaining, storing, safeguarding, and distribution of needed equipment, materials, and supplies, recommends the acquisition of needed equipment, materials, and supplies; develops effective work methods for foremen and subordinates, insures the proper use of needed equipment, materials, and supplies; prepares and keeps needed records and reports of personnel and work done, equipment used and time spent."
Subsequent to the creation of the position the city in 1952 abandoned its municipal scavenger service and thereafter retained a private contractor to perform this function. Therefore in May 1952, when the Civil Service Commission called for an examination for the position of sanitation
general foreman, it redefined the duties of the position as follows:
"Under supervision sees that all local ordinances pertaining to scavenger collection and services are observed and enforced; sees that the contractor or scavenger and his agents collect and dispose of refuse according to the term of the contract particularly as to frequencies of service, the prevention of litter on the street, and the manner of handling refuse containers; investigates and reports complaints; supervises the distribution of equipment and material; supervises the establishment and maintenance of files and records; does related work as required."
The 1950 ordinance was never repealed nor was the position of sanitation general foreman expressly abolished. The city's viewpoint was that the incumbent of that position should supervise the activities of the private contractor and investigate complaints. Accordingly in the ensuing years it continued to keep the position filled. As late as June 4, 1957, the city enacted a general salary ordinance which contained the maximum and minimum salary for the position under review. One Bert Welling occupied that position from 1952 until he resigned, effective December 31, 1957.
On December 17, 1957 defendant Paul DeMuro, mayor and director of public works of defendant municipality, advised the board of commissioners that he intended to appoint defendant Joseph Berenbach, who had been in the employ of Passaic as a sanitation inspector since 1952, as acting sanitation general foreman to fill the vacancy created by the resignation of Welling.
The affidavit of defendant DeMuro presented on the motion for summary judgment stated that no permanent appointment to the position of sanitation general foreman would be made until the Civil Service Commission had held an examination and submitted the names of those qualified for such permanent appointment. The temporary appointment received civil service approval "pending review of classification."
Plaintiff asserts that it was error to enter summary judgment in favor of defendants because there exist ...