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Myers v. Township of Cedar Grove

Decided: April 3, 1961.

JOHN E. MYERS, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF CEDAR GROVE, ET AL., DEFENDANTS-RESPONDENTS



Conford, Freund and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.

Conford

[66 NJSuper Page 531] Plaintiff has been part-time plumbing inspector of the Township of Cedar Grove since 1947. In April 1959 he instituted this action against the municipality, its governing body and its board of health (1) attacking a 1959 salary ordinance of the governing body changing his salary from $2,600 per year plus $300 for expenses to the rate of $5 per inspection and $10 per license examination;

(2) seeking a determination establishing his right of tenure in office and setting aside the alleged reduction of the salary thereof by the salary ordinance complained of; and (3) requesting the appropriation of sufficient money to pay the full salary due for the elapsed period of the year 1959. Plaintiff sues not only in his status as plumbing inspector but as a resident and taxpayer.

On the basis of the pleadings, cross-motions for summary judgment, and documentary exhibits, the Superior Court, Law Division, sustained the plaintiff's claim of tenure in office but determined that the change from a fixed salary to a fee basis of compensation was not a reduction in salary in derogation of plaintiff's tenure rights; moreover, that since, prior to 1956, plaintiff had been paid on a fee basis (percentage of fees collected) and had never complained of the change at that time to a salary basis, he was in laches. Judgment was entered for defendants on the claims for affirmative relief.

Defendants do not appeal from the adjudication of plaintiff's right to tenure, under N.J.S.A. 26:3-26, by virtue of five years' continuous local service as a state-licensed plumbing inspector, and we give no further consideration to that phase of the controversy, although we imply no opinion on the point, assuming such tenure for the purposes of this opinion.

The Township of Cedar Grove was a municipality governed by the Walsh Act (commission form of local government; R.S. 40:70-1 et seq.) from prior to 1947 until July 1, 1955. Effective that date, the voters of the municipality, by referendum, acting pursuant to the Optional Municipal Charter Law, L. 1950, c. 210, N.J.S.A. 40:69A-1 et seq. , commonly known as the Faulkner Act, adopted Article 10, Council-Manager Plan B of the act, as their form of local government.

Plaintiff was first appointed plumbing inspector by the former board of commissioners May 20, 1947, and was given reappointments from time to time thereafter. A board of

health was established in the municipality by ordinance on November 16, 1953. This board reappointed plaintiff twice before the new form of government went into effect.

The new municipal governmental organization was implemented by an ordinance adopted by the municipal council July 29, 1955. Section 25 thereof provides for a board of health consisting of five members to be appointed by the council. The municipal manager is given the power to appoint "all employees of the Board," including the plumbing inspector, and they are directed to be under his "direct supervision and control." There was no formal appointment of plaintiff to office under the new form of government, but he has served in the part-time position continuously since.

Plaintiff is and at all times during his service in office has been a licensed plumber conducting his own private plumbing business in Cedar Grove. As plumbing inspector he has no definite hours or times of employment. He is required to be available for inspections or consultations with plumbers at any time during the business hours of the week. Since July 1, 1955 the board of health has engaged or dismissed no employees and has adopted no health ordinances, any such having been adopted by the municipal council. The board has been purely advisory in character. Aside from plaintiff, the local "health department" consists only of a part-time, non-resident health officer, who is plaintiff's immediate superior, and a clerk-typist.

Prior to July 1, 1955 plaintiff was paid one-half of the plumbing inspection fees collected. In 1955 his remuneration for the year 1956 was altered by salary ordinance of the municipal council to $2,500 per year plus $300 for traveling expenses. Plaintiff did not at that time claim he had been "reduced" in salary. This was increased to $2,600 plus expenses for the calendar years 1957 and 1958. Toward the end of 1958 the township manager conferred with plaintiff as to correlating his compensation with the amount of his work because of an alleged decline in the

volume of such work. Finally, on recommendation of the manager, the council adopted the $5 per inspection and $10 per examination rates as plaintiff's compensation for 1959. It is stipulated that at this rate plaintiff would have earned $2,660 for the year 1959. That fact was, of course, not known when the salary ordinance was adopted at the beginning of the year.

I.

The principal legal question argued below and before us is whether the defendants have acted illegally in this matter, for the reason that the council and manager have assumed powers with respect to the determination of plaintiff's compensation which belong solely to a separate and independent board of health required to be functioning in the township under and pursuant to the statute for the establishment and regulation of municipal boards of health. R.S. 26:3-1 et seq. , as amended.

The defendants contend that the Faulkner Act abolishes all previously existing offices in a municipality adopting one of the forms of local government provided for therein except certain expressly designated offices and bodies, and vests all control over, and the fixing of compensation for, all municipal employees in the council and manager under a council-manager form. The aim of the Faulkner Act, it is said, is to "centralize governmental responsibility and control rather than distribute and dilute same among numerous boards, bodies and agencies." It is particularly stressed that the municipal manager is constituted the "chief executive and administrative official of the municipality," N.J.S.A. 40:69A-95(a); and that he appoints and removes "all department heads and all other officers, subordinates, and assistants for whose selection or removal no other method is provided in this article * * * and * * * supervise[s] and control[s] his appointees" (he may authorize the head of a department to appoint and remove subordinates). Id. (c). The contention is that such concentration

of administrative control of subordinate officials evinces a legislative policy inconsistent with the existence of a board of health possessed of the power, under R.S. 26:3-19, as amended, to "employ such personnel as it may deem necessary, including * * * plumbing inspectors * * *" and to "fix the duties * * * and compensation of every appointee."

The problem presented is purely one of statutory construction and mutual accommodation of legislative purposes and objectives. Consideration must be given not only to the several relevant provisions of the Faulkner Act, and of the Board of Health Act, set out in Title 26, chapter 3 of the Revised Statutes , as amended, but also to pertinent aids to construction from legislative history.

The Board of Health Act was originally enacted in 1887 (L. 1887, c. 68) in order to assure a minimum state-oriented and state-supervised health program for every municipality in the State. See the comprehensive discussion of the subject in Grosso v. City of Paterson , 55 N.J. Super. 164, 171-174 (Law Div. 1959); see also Schwarz Bros Co. v. Board of Health , 83 N.J.L. 81, 87 (Sup. Ct. 1912); Board of Health of City of Asbury Park v. N.Y., etc., R.R. Co. , 77 N.J.L. 15 (Sup. Ct. 1908). We cannot improve, for present purposes, upon Judge Kolovsky's succinct summary in the Grosso case, supra , of the authorities bearing upon the powers, authority and character of jurisdiction exercised by boards of health under Title 26, Article 3. The whole of that discussion bears importantly on the present issue. (55 N.J. Super., pp. 172-174):

"As Vice-Chancellor Bigelow said in State v. Mundet Cork Corp. , 126 N.J. Eq. 100, 101-102 (Ch. 1939), affirmed o.b. 127 N.J. Eq. 61 (E. & A. 1939):

"The state of New Jersey endeavors to protect public health through the instrumentality of a state department of health (R.S. 26:2-1), and local boards, which all our municipalities are ordered to maintain (R.S. 26:3-1). The director of the state department is required generally to enforce all laws relating to the health of

the people of the state. R.S. 26:2-15. Among other duties, the department is directed to call to the attention of local health authorities any failure on their part to enforce the laws and to order them to do so and if they fail to comply, then the state department itself must immediately take the action which the local authorities fail to perform. R.S. 26:2-20. Our public health organization is state-wide, with local boards charged in the first instance to ...


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