On motion for summary judgment.
Nadell, J.c.c. (temporarily assigned).
This is a suit for a declaratory judgment but is equivalent to a proceeding in lieu of the prerogative writ of quo warranto between contesting claimants to the offices of members of the Planning Board of the City of Clifton. The matter comes up on motion for summary judgment.
On April 20, 1943 the City of Clifton, by ordinance, created a planning board pursuant to the enabling statute, R.S. 40:55-1 et seq., L. 1930, c. 235, repealed and replaced by L. 1953, c. 433 (N.J.S.A. 40:55-1.1 et seq).
Until November 1, 1960 appointments to the planning board were made by the mayor. Adhering to precedent, on October 26, 1960 the mayor, Stanley Zwier, appointed Frank Staudt, the tax collector of the city, as a class II member of the board, effective immediately, and on the same day
appointed Stephen Goceljak, Jr., as a class IV member for a term to commence January 1, 1961. They were immediately sworn into office.
On November 1, 1960 the city council adopted resolutions reappointing William Holster, the municipal manager, to succeed himself as the class II member of the planning board, effective immediately, and Charles F. Hahn a class IV member to succeed himself for a term to commence January 1, 1961. They, too, were sworn into office.
The City of Clifton is a municipal corporation of the State of New Jersey which, in 1934, duly adopted the provisions of the municipal manager form of government law. R.S. 40:79-1 et seq., L. 1923, c. 113.
Appointments to the planning board must be made in accordance with the applicable section of the Municipal Planning Act (1953), N.J.S.A. 40:55-1.4, which provides:
"The governing body may by ordinance create a planning board of not less than five nor more than nine members. The members shall consist of, and be divided into, for convenience in designating the manner of appointment, the four following classes:
Class II -- one of the officials of the municipality to be appointed by the mayor.
Class III -- a member of the governing body to be appointed by it.
Class IV -- other citizens of the municipality to be appointed by the mayor.
It is clear that the "mayor" is the individual who is to appoint the class II and IV members. The act specifically defines "mayor" in R.S. 40:55-1.2:
'Mayor' means the elected official who serves as the chief executive of the municipality, whatever his official designation may be."
The municipal council contends that the chief executive of the municipality is the municipal manager, but that he
is an appointive and not an elected official. The council argues that since neither the mayor nor the city manager is qualified, the power of appointment is not in limbo but rather resides in the council as the elected body of the municipality; i.e. , the municipal council is the elected official, and under the broad powers ...