Price, Gaulkin and Foley. The opinion of the court was delivered by Gaulkin, J.A.D.
The case in which Ezra L. Nolan is the first plaintiff will be called the Nolan case, and the one in which Meyer Pesin is the first plaintiff will be called the Pesin case. The plaintiffs appeal and the defendants cross-appeal from summary judgments (or denials thereof) entered in each of the above entitled cases. The appeals have been consolidated.
The undisputed facts upon which the court below acted are as follows:
By resolution dated May 21, 1957 the Board of Commissioners of Jersey City (hereafter called Jersey City) appointed
Nolan corporation counsel, at an annual salary of $12,000. On May 24 Nolan advised Jersey City that
"I have this day made the following appointments as Assistant Corporation Counsel in the Law Department, effective immediately, at the annual salary set opposite their respective names, viz.:
James F. McGovern, Jr. $9,000
Jeremiah J. O'Callahan 7,000
Eugenia M. V. Urbanski-Courtney 6,500
Eugene E. Mastronardy 6,000
Francis M. McInerney 6,000"
On the same day Jersey City passed a resolution "that this Board consents to, concurs in and ratifies each of the * * * appointments and the salary attached to each of said appointments."
On March 24, 1959 Jersey City adopted a budget for the year 1959 which provided $77,000 for salaries of the assistants corporation counsel (among whom are Pesin and his 12 co-plaintiffs in the Pesin suit) instead of the sum which would be needed to pay them the above mentioned salaries for the budget year. Pesin and the 12 other assistants immediately started the Pesin action, in lieu of prerogative writ, alleging that
"The effect of said reduction in the budget as finally adopted, by reason of the payments already made to the full complement of 'assistants' since January 1, 1959, leaves the sum of approximately $45,000 to pay the salaries of said 'assistants' for the balance of
the year 1959. This sum is completely inadequate to meet the fixed full salaries and compensation due and to grow due to the 'assistants' for the remainder of the year 1959.
The aforesaid acts of the 'majority bloc' were ultra vires , in that neither the aforesaid quoted statutes nor any other statutes of the State of New Jersey grant to the Board of Commissioners the power to remove said 'assistants,' nor do they grant said Board the power to diminish the salaries of said 'assistants' during their terms of office, directly or indirectly."
The plaintiffs in the Pesin suit demanded judgment "Ordering and directing that the Board of Commissioners of the City of Jersey City appropriate an additional $50,000 so that there will be sufficient moneys to pay all of the assistants corporation counsel their full annual salaries for the year 1959."
On April 7, 1959 Jersey City adopted a resolution reciting:
"* * * that effective immediately and for the period remaining between this date and December 31 of the current year, in order to cause the expenditures for Assistant Corporation Counsels to conform to the program of economy and the budgetary allotment above described, the following Assistant Corporation Counsels be paid the salary set forth after each of their respective names: * * *."
Then followed the names of the assistants and a figure for each which represented a cut of 55% in his salary for the balance of the year 1959. Jersey City has made no effort to cut Nolan's salary. The assistants, and Nolan on their behalf, objected strenuously to these salary cuts, and pressed the action to compel the increase of the budget. On April 27, 1959 the plaintiffs in the Pesin action made a motion for summary judgment which was denied "without prejudice to renewal at a later time, on the ground that it was premature." Pursuant to leave granted, the plaintiffs in the Pesin action appeal from this denial.
On May 5, 1959 the city passed an ordinance (K-1674) which reads, in part, as follows:
"Section 1. Section 4 of Ordinance K-1263 be and the same hereby is amended to read: The Corporation Counsel's term of office shall
expire on May 18th, 1959. The terms of office of the Assistant Corporation Counsels shall ...