Gaulkin, Sullivan and Foley. The opinion of the court was delivered by Gaulkin, J.A.D.
[64 NJSuper Page 104] In this action for declaratory judgment plaintiffs claimed that the power to appoint a city counsel resides in the Board of Commissioners of Passaic (a second-class city operating under the commission (Walsh
Act) form of government), and not in defendant Sullivan as Director of Revenue and Finance. The office of city counsel had been assigned to the Department of Revenue and Finance at the board's organization meeting held May 19, 1959. The term of the incumbent city counsel (appointed by a predecessor Director of Revenue and Finance) having expired June 30, 1960, Sullivan appointed defendant Klughaupt to succeed him, effective July 1. The trial court granted summary judgment in favor of defendants, holding that the power of appointment was vested in defendant Sullivan as such Director, and that his appointment of defendant Klughaupt was valid. Plaintiffs appeal.
We note that plaintiffs sue only as "members of the Board of Commissioners of the City of Passaic, residing in the City of Passaic." They do not sue as taxpayers, and Passaic has not been made a party to the action as plaintiff or defendant. However, in their brief defendants do not question plaintiffs' right to sue, or the non-joinder of Passaic, and we mention these facts only to indicate that we express no opinion upon the plaintiffs' right to sue or upon the sufficiency of the parties. We pass these questions and proceed to the merits, chiefly because it is agreed that "the present suit was filed by the other four commissioners [one has since dropped out] pursuant to a resolution which they had adopted on June 7, 1960 over the negative vote of defendant, Sullivan." Cf. Royal Indemnity Co. v. Hartford Acc. and Indem. Co. , 58 N.J. Super. 75, 78 (App. Div. 1959).
Plaintiffs admit that before Kagan v. Caroselli , 30 N.J. 371 (1959) and Tumulty v. Jersey City , 57 N.J. Super. 503 (App. Div. 1959), it appeared to be well settled that in commission government communities "the power to appoint resides solely in the director of the department to which the particular position has been assigned * * * and a resolution of the board of commissioners as a body does not satisfy this requirement * * * except where the appointment is made by the governing body as a board at its organization meeting * * *," Daly v. City of New Brunswick , 3 N.J. 397
(1950), and that this applied to city counsel, city attorneys and law departments. Murphy v. Board of Commissioners of Newark , 119 N.J.L. 537 (Sup. Ct. 1938), affirmed opinion below, 121 N.J.L. 75 (E. & A. 1938); O'Connell v. Board of Commissioners of Bayonne , 116 N.J.L. 61 (Sup. Ct. 1935); McGlynn v. Grosso , 114 N.J.L. 540 (Sup. Ct. 1935). However, plaintiffs argue that the Kagan and Tumulty cases indicate that the old rule no longer applies, and never properly applied, to those "offices whose nature did not require that they must be assigned to a single department and whose functions and jurisdiction was appropriate to the jurisdiction of the whole board"; that the office of city counsel is such an office for, "like * * * the magistrate in the Kagan case, it is not appropriate to any single department; and properly appropriate and relevant to the board, as the governing body. * * * Considering the nature of the office of municipal law officer * * * its jurisdiction and functions * * * an appointment to it should be lodged in the board * * * which, as the Kagan opinion states 'is more logically the recipient of the responsibility than would be a single commissioner'".
The trial court answered these contentions in its oral opinion as follows:
"It seems to me that counsel overlooks the very heart of the Kagan v. Caroselli case. What the court had before it there was a question of the interpretation of the provisions of the municipal magistrate act, which provided for the appointment of a municipal magistrate by the governing body of the municipality. And the question was: What was the legislative intent in using the term governing body in the municipal magistrate act?
Distinguishing the earlier Walsh Act cases, the court very carefully pointed out that a magistrate, and I quote from page 377: 'A magistrate does not exercise the "judicial" power, authority, or duty of a municipality. On the contrary, his court is an integral part of a state-wide judicial system, and the judicial power he exercises is the judicial power of the State.'
And, therefore, the court held that the provisions of the Walsh Act which require distribution of the various municipal powers among the five departments do not apply to this power which is not a municipal power.
And the same thing is true as far as the Tumulty case is concerned, because what was involved in the Tumulty case again was not a municipal power but the power of an independent authority, the Housing ...