Conford, Foley and Scherer. The opinion of the court was delivered by Conford, J.A.D.
Plaintiff brought this action in lieu of prerogative writs in the Law Division to challenge the legality of his summary removal as senior clerk in the tax receiver's office of defendant municipality and for an order directing his reinstatement to that position. An honorably discharged veteran of World War II, he claims that his dismissal derogated his tenure protection under N.J.S.A. 38:16-1, the Veteran's Tenure Act. Cross-motions for summary judgment were made, and defendant appeals from the granting of plaintiff's. The essential facts, revealed by the pleadings and affidavits, are not in dispute.
Plaintiff was originally appointed a clerk in the tax office by resolution of the municipal council in January 1952 and was promoted to senior clerk, also by resolution, in December 1957. He continued in that position until January 1, 1959, when, again by resolution, others were appointed in his place. The city attempted to justify its action and based the argument in its appellate brief on the ground that plaintiff held an office or position rather than an employment, and, therefore, since there was never an ordinance creating the position, it has no legal existence, and there is, consequently, no present position to which plaintiff has any right to be restored. Jersey City v. Department of Civil Service , 7 N.J. 509 (1951); Handlon v. Town of Belleville , 4 N.J. 99 (1950); Wagner v. Borough of Lodi , 56 N.J. Super. 204 (App. Div. 1959). Plaintiff contends that his duties are more properly classified as those of an employee, and hence no creative ordinance is necessary. Alternatively, even if his status were that of a position-holder or officer, no creative ordinance was necessary because of the general hiring authorization contained in the City Referendum Charter Act, R.S. 40:107-1, specifically subsection (84) (to be found in "Acts Saved from Repeal," a separate volume of N.J.S.A.). A final contention, raised for the first time on this appeal, is that even if he were the holder of a position not validly
created, he would still be entitled to tenure protection because of his de facto status.
It is well settled that a municipal office or position, if not provided for by statute, can be created only by ordinance. R.S. 40:48-1 (The Home Rule Act); Jersey City v. Department of Civil Service, supra (7 N.J. , at page 524); Handlon v. Town of Belleville, supra (4 N.J. , at page 108); Wagner v. Borough of Lodi, supra (56 N.J. Super. , at page 206); City of Orange v. Goldberg , 137 N.J.L. 73, 75-76 (Sup. Ct. 1948); Serritella v. Water Commission, etc., of Garfield , 128 N.J.L. 259, 263 (Sup. Ct. 1942); Toomey v. McCaffrey , 116 N.J.L. 364, 366 (Sup. Ct. 1936). In this context the terms "position" and "office" are used interchangeably. See Jersey City v. Department of Civil Service , 57 N.J. Super. 13, 28 (App. Div. 1959) (hereafter cited as Sapienza , the name of the co-plaintiff, to distinguish it from the previous Supreme Court decision of the same name, cited above). The sole basis of the trial court's action in granting plaintiff's motion in the instant case was its holding, in effect, that the Charter Act, cited above, constitutes a statutory creation of Kovalycsik's public post, precluding the necessity for a specific creative ordinance. The relevant provision of that statute reads, in part:
"The city council may employ from time to time such assistants and employees as the necessities of the city may require, and may pay such compensation to them as such services may be deemed reasonably worth * * *."
R.S. 40:48-1 provides in part:
"The governing body of every municipality may make, amend, repeal and enforce ordinances to:
The effect of the Charter Act section may well be to provide authority for the appointment of employees by this particular municipality notwithstanding the absence of an ordinance creating the employment. See Barkus v. Sadloch , 20 N.J. 551 (1956), construing the cited provision of the Charter Act, and implicitly so holding. But to extend the operative scope of the section to municipal officers or position holders as well as employees would be to transcend its language and subvert the purpose of R.S. 40:48-1. As continually reiterated by our courts, that section of the Home Rule Act was meant to assure that the creation of new offices and positions, because of the additional public financial burden they occasion, should be preceded by the deliberative legislative process and the public notice attendant upon the passage of an ordinance. See, e.g., Handlon v. Town of Belleville, supra (4 N.J. , at page 108); Nolan v. Witkowski , 56 N.J. Super. 480, 495 (App. Div. 1959); Hale v. Council of Town of Kearny , 99 N.J.L. 334, 335 (Sup. Ct. 1924).
Furthermore, the suggested extension of the Charter Act provision is clearly contra-indicated by its language. While its first sentence uses both the terms "assistants and employees," it is obvious that "assistants" was not meant to include "officers" or position holders. The only reference to "officers" appearing elsewhere in that section (concerning consolidation of offices) expressly indicates municipal action by ordinance. As to position holders, the long history of technical differentiation in the cases between public employments, as such, and "positions," warrants the assumption that the Legislature used the term "employees" discriminatingly in the ...