For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
[39 NJ Page 246] This was a proceeding in lieu of prerogative writs, arising out of the appointment of Thaddeus Barsh by the Board of Commissioners of the City of Passaic, as a commissioner of the Passaic Valley Water Commission, and by the appointment of Eugene L. Boyle, Jr. to the same post by Commissioner David B. Kaplan, the Director of Public Affairs of the City of Passaic.
The appeal is taken by Thaddeus Barsh from a judgment holding that the appointment of Boyle is valid, and that of Barsh is ineffective. We certified the case on our own motion prior to argument in the Appellate Division. R.R. 1:10-1(a).
The City of Passaic is a second class city, operating under the provisions of the Walsh Act, N.J.S.A. 40:72-1 et seq., which it adopted in 1911.
On March 22, 1927, pursuant to R.S. 40:62-108 et seq., the Board of Commissioners of Passaic passed an ordinance authorizing the municipality to join with the Cities of Clifton and Paterson in applying to a Justice of the former Supreme Court for the appointment of commissioners to acquire the water works owned by the Passaic Consolidated Water Company.
On July 2, 1927 the Commission was appointed by Justice Black; and on October 24, 1930 the Commission (which had adopted the name of Passaic Valley Water Commission) entered into possession of the water works.
On February 3, 1931, pursuant to R.S. 40:62-129, which provides in part,
"At any time after waterworks shall have been acquired in pursuance of sections 40:62-108 to 40:62-150 of this title, the governing bodies of the municipalities owning the same may enter into an agreement prescribing a method of electing or appointing a commission to succeed the commission appointed as provided in section 40:62-109 of this title. The agreement so made shall specify the number of persons to constitute the commission, their term or terms of office, method of organization, and powers, duties and compensation, but the members of the commission may agree to serve without, or at a nominal compensation."
the three cities entered into an agreement which stated:
"1. There shall be appointed as hereinafter set forth, a commission of four persons, of whom two shall be residents of Paterson who shall be appointed by the governing body of said City; one shall be a resident of Passaic who shall be appointed by the governing body of said city; and one shall be a resident of Clifton, who shall be appointed by the governing body of said city. The persons so appointed
shall constitute a commission for the government, control and administration of said water works, to succeed the present Passaic Valley Water Commission. The term of office of the first commissioners appointed in pursuance of this agreement shall begin fifteen days after the execution of this agreement by any two of said cities containing at least two-thirds of the population of all of said cities, according to the last preceding National census."
Barsh argues that the tripartite agreement, executed in accordance with R.S. 40:62-129, effectively empowered the Board of Commissioners of the City of Passaic, as "the governing bod[y] of the municipalit[y]," to appoint its ...