For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
The Law Division entered a judgment in favor of the plaintiffs for the reasons it expressed in Grosso v. City of Paterson, 59 N.J. Super. 412 (1960). The City of Paterson and its Board of Finance appealed to the Appellate Division and we certified their appeal on our own motion while it was pending there.
The plaintiffs are public health nurses, sanitary inspectors and laboratory personnel, all duly employed by the Board of Health of the City of Paterson. See N.J.S.A. 26:3-19. They are in the classified service of the civil service and have permanent status in their respective employments. See R.S. 11:22-3 et seq. On June 27, 1956 an ordinance was adopted by the Board of Health and approved by the Mayor; it provided that the salary range for permanent sanitary inspectors shall be $3600-$4200 per annum, that their annual increments shall be $120, and that upon completion
of five years continuous service they shall receive the maximum specified in the ordinance. On June 11, 1957 another ordinance was adopted by the Board of Health and approved by the Mayor; it provided that the salary range for the permanent position of public health nurse shall be $3400-$4400 per annum and that nurses having permanent status in the classified service shall receive yearly increments of $200. On July 9, 1957 a further ordinance was adopted by the Board of Health and approved by the Mayor; it provided that the salary range for laboratory technicians shall be $3200-$4200 per annum and that laboratory employees having permanent status in the classified service shall receive yearly increments of $200. See N.J.S.A. 26:3-19; cf. Howard v. Mayor and Board of Finance of City of Paterson, 6 N.J. 373, 376 (1951). The ordinances were forwarded by the Board of Health to the Civil Service Commission which recorded them. Cf. R.S. 11:24-4.
On December 10, 1957 the Board of Health adopted a resolution directing payment of the increments due to the plaintiffs under the terms of the ordinances. At the same time it forwarded to the Paterson Board of Finance an estimate of the appropriation which it believed necessary for health purposes; this estimate was in the aggregate amount of $393,752 and included $351,752 for current payroll and increments and $42,000 for other expenses. On December 13, 1957 the clerk of the Board of Finance addressed a letter to the Board of Health acknowledging receipt of the ordinances and advising that the Board of Finance had directed that "no increase in salary shall appear on payrolls submitted by your board beginning January 1, 1958." On March 10, 1958 the Board of Finance adopted its 1958 budget which included an appropriation to the Board of Health in the sum of $318,000 for salaries and $40,000 for other expenses. The $318,000 appropriation for salaries was equal to the amount needed to pay employees on the payroll as of January 1, 1958 without increments; however the entire sum expended for salaries during 1958
amounted to $315,039.03, the difference of $2,960.97 being "accounted for by reason of the fact that two employees of the Board of Health went on maternity leave on September 1, 1958 and two employees resigned as of August 31, 1958 and September 1, 1958." The plaintiffs were paid in 1958 on the basis of their 1957 salaries and received no part of the increments prescribed by the ordinances for 1958.
On August 6, 1958 the plaintiffs filed an action seeking a money judgment for the salary increments which were due them but remained unpaid. They named the Board of Health and the City of Paterson as defendants but the Law Division dismissed the action against the City while granting a summary judgment for $3,169.97 against the Board of Health. See Grosso v. City of Paterson, 55 N.J. Super. 164 (1959). No appeal was taken, a writ of execution was returned unsatisfied, and on October 20, 1959 the plaintiffs filed their complaint in lieu of prerogative writ in which they sought a judgment (1) ordering the Board of Health to include in its 1960 budget an appropriation to pay the sum due to the plaintiffs, (2) ordering the Board of Finance to approve said appropriation and (3) ordering the City of Paterson to raise the necessary revenue and pay the plaintiffs' judgment. Cf. Gowdy v. Paterson Board of Education, 89 N.J.L. 137 (Sup. Ct. 1916).
After the defendants filed their answer, the plaintiffs moved for summary judgment and on February 2, 1960 their motion was granted by the Law Division. See Grosso v. City of Paterson, 59 N.J. Super. 412 (1960). On February 4, 1960 the Board of Health adopted a resolution which set forth that it was "agreeable to the payment" of the plaintiffs' judgment; it directed the Board of Finance to appropriate a sufficient sum to be charged to "the account of the Board of Health" and directed the City Comptroller to draw a suitable warrant and the City Treasurer to draw a suitable check. On the same day it addressed a letter to the Board of Finance, the City Comptroller and the City Treasurer and enclosed a copy of its resolution together with
another resolution by the Board of Health which estimated its 1960 budget in the aggregate sum of $426,277, including an item to satisfy the plaintiffs' judgment. On March 14, 1960 the City of Paterson and its Board of Finance filed their notice of appeal from the judgment against them which had been entered in the Law Division.
Although various preliminary procedural matters have been discussed in the briefs, we consider that they may fairly be passed by in order that the single substantive controversy between the parties may forthrightly be dealt with and justly determined. If, as the appellants contend, the Board of Finance was not legally bound to appropriate for the salary increments but could exclude them under the authority of N.J.S.A. 26:3-43, then the judgment should be reversed; on the other hand if, as the respondents contend, the Board of Finance was legally bound to appropriate for the salary increments provided for in the ordinances adopted by the Board of Health, then the judgment should be sustained. See Nolan v. Fitzpatrick, 9 N.J. 477, 482 (1952); ...