For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
The sole question presented on this appeal is whether a municipality which has adopted one of the plans of government under the Optional Municipal Charter Law, L. 1950, c. 210, N.J.S.A. 40:69A-1 et seq. (Faulkner Act), must maintain a separate and independent board of health under Title 26 of the Revised Statutes, N.J.S.A. 26:1-1 et seq. (Health and Vital Statistics).
Since July 1, 1955, the Township of Cedar Grove has been governed under the Council-Manager Plan B provisions of the Faulkner Act. Prior to the above date and since at least May 1947, Cedar Grove was governed by a Board of Commissioners under the Walsh Act. R.S. 40:70-1 et seq. In May 1947 the plaintiff was appointed Plumbing Inspector by that board and was reappointed periodically thereafter. In November 1953 an ordinance creating a board of health was adopted; this board reappointed plaintiff twice before the new form of government was established. No question is raised as to the legality of the reappointments.
On July 29, 1955 the new municipal Council adopted its governmental organization ordinance providing, inter alia, for a Board of Health, consisting of five members appointed by the Council, and giving the Township Manager power to appoint and supervise all employees of the Board including the Plumbing Inspector. This Board has functioned only in an advisory capacity. Plaintiff has not been formally appointed under the new plan of government, but has nevertheless continued to serve as Plumbing Inspector. From 1947 through 1955 he was compensated to the extent of one-half the plumbing fees collected. In 1956 his remuneration was changed by a salary ordinance of the Council to $2,500 and $300 expenses annually. This was increased to $2,600 and $300 expenses in 1957 and 1958. Upon the recommendation of the Manager, on March 10, 1959, the Council adopted an ordinance changing plaintiff's rate of compensation to $5 for each inspection and $10 for each license examination.
Dissatisfied with the change in the method and amount of his remuneration, plaintiff, as Plumbing Inspector and as a taxpayer, brought an action in the Superior Court, Law Division, contending that (1) the salary ordinance of March 10, 1959, and the organization ordinance of July 29, 1955, were void as being in violation of the Local Boards of Health chapter (N.J.S.A. 26:3-1 to 91) of Title 26 because the Township is required to maintain an autonomous board of health with the power to appoint and fix the compensation of its employees, including Plumbing Inspectors, under N.J.S.A. 26:3-19; and (2) the salary ordinance of March 10, 1959, was a reduction of salary in violation of plaintiff's tenure rights acquired under N.J.S.A. 26:3-26. Plaintiff demanded the court hold the ordinances void, direct the defendant Board of Health to adopt an ordinance establishing his annual salary at $2,600 plus $300 expenses and direct the defendant Council to pass an emergency appropriation to provide for the above amounts.
The trial court held the autonomous board of health encompassed by N.J.S.A. 26:3-1 was abolished when Cedar Grove adopted a plan of government under the Faulkner Act. The court further held that the Township Manager has the power to appoint and supervise the plaintiff. Although holding plaintiff had tenure, the court determined, as a matter of fact, he had not been reduced in salary or position.
The plaintiff appealed to the Appellate Division which reversed the trial court in part. 66 N.J. Super. 530 (1961). It determined that the "statutory" autonomous board of health under N.J.S.A. 26:3-1 continued to be applicable in Cedar Grove, despite the adoption of Council-Manager government in 1955. Therefore it held the ordinance of July 29, 1955, insofar as it authorized the Manager to appoint employees of the Board of Health, and the ordinance of March 10, 1959, insofar as it fixed plaintiff's remuneration, were void. And the court directed
"that Cedar Grove must and should forthwith, pursuant to R.S. 26:3-1 et seq., as amended, adopt an ordinance providing for the establishment and manner of appointment of the members of the statutory board of health. When established, that board will have exclusive jurisdiction over the employment and compensation of its personnel, including plaintiff, as provided by R.S. 26:3-19 as amended." 66 N.J. Super., at p. 544.
The court affirmed the remainder of the trial court's judgment, thereby denying plaintiff's claim with respect to compensation. The only difference in the determinations of the two courts is that the Appellate Division, contrary to the result reached by the trial court, would require an independent board of health to be maintained in a Faulkner Act municipality such as Cedar Grove. We granted defendants' petition for certification. 35 N.J. 59 (1961).
Defendants do not challenge plaintiff's right to tenure, and plaintiff does not question those parts of the judgment adverse to him. The sole question before us, therefore, is whether Cedar Grove, as a Faulkner Act municipality, is
required to maintain an independent board of health under ...