For reversal and remandment -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor and Schettino. For affirmance -- None. The opinion of the court was delivered by Burling, J.
This appeal arises from an action in lieu of prerogative writ brought in the Superior Court, Law Division, challenging the validity of an ordinance of the Borough of Fair Lawn, No. 734, approved June 23, 1959. This ordinance purported to create a municipal planning board pursuant to N.J.S.A. 40:55-1.4, to abolish the then existing planning board, and to terminate the terms of office of all members of that board, including plaintiffs. Before any action was taken by the governing body of Fair Lawn pursuant to this ordinance, the plaintiffs initiated their suit in lieu of prerogative writ. After filing an answer and counterclaim, defendants moved for summary judgment in their favor both as to plaintiffs' complaint and defendants' counterclaim. The trial court granted the motion insofar as it related to the counterclaim, thereby disposing of the whole matter. 57 N.J. Super. 408 (Law Div. 1959). The plaintiffs prosecuted an appeal to the Superior Court, Appellate Division, and while the cause was pending there and before argument we certified it on our own motion.
A municipal planning board for the Borough of Fair Lawn was first created by ordinance in 1939 pursuant to the enabling legislation existing at that time. A nine-member board was provided for, one Class I member, the mayor; one Class II member, a municipal official designated by the mayor; one Class III member, a member of the governing
body appointed by it; and six Class IV members, local residents appointed by the mayor. The duration of the terms of the Class IV members was limited by the following language of the statute:
"The term of one member of Class IV first appointed shall expire at the end of each year beginning at the end of the first year. Thereafter the term of each shall be the same number of years as there are members of Class IV on the board." L. 1930, c. 235, § 2, repealed L. 1953, c. 433, § 28.
Identical language has been used in the existing statute. N.J.S.A. 40:55-1.4. Thus the first appointments of Class IV members for nine-member boards are for terms of one through six years. As the terms of original members expire, reappointments are for terms of six years. In this manner, the term of one Class IV member expires each year.
After some initial confusion as to duration of terms of Class IV members which lasted for the first six years of the Fair Lawn Board's existence, the scheme described above was carried out. Terms were made to expire on the last day of the year. In 1948, however, when the borough adopted the council-manager form of government, the terms of Class IV members were made to expire on March 1 of each year. This procedure continued through to the passage of the ordinance in question and constitutes the basis of the present difficulties. In 1954 the borough adopted ordinances which gave the planning board additional powers allowed by the Municipal Planning Act (1953), N.J.S.A. 40:55-1.1 et seq., and the expiration date of the terms of Class IV members continued to be March 1. The plaintiffs are five of six members of the planning board in existence prior to the adoption of the ordinance in question. Their terms of office were set to expire on March 1 of 1960 through 1964 respectively.
After the municipal elections in May 1959, which placed a new mayor and council in office, the attorneys for the planning board and borough decided that the Municipal Planning Act (1953), by N.J.S.A. 40:55-1.4, required
the terms of each Class IV member of planning boards to expire on the last day of the calendar year, i.e., December 31. This conclusion was reached by interpreting the statute in question to state:
"The term of one member of Class IV first appointed shall expire at the end of each [calendar] year beginning at the end of the first year."
Reasoning from this premise, and noting that the appointment of the plaintiffs expired on a different date than December 31, it was concluded that plaintiffs' appointments were void, that the existing planning board ...