For reversal and remandment -- Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- Chief Justice Weintraub, and Justice Haneman. The opinion of the court was delivered by Proctor, J. Weintraub, C.J., and Haneman, J. (dissenting).
The sole issue presented on this appeal is whether the terms of office of commissioners of a municipal parking authority, created by a municipality pursuant to the Parking Authority Law, L. 1948, c. 198, N.J.S.A. 40:11A-1 et seq., terminate on the effective date of a new plan of government adopted by the municipality under the Optional Municipal Charter Law, L. 1950, c. 210, N.J.S.A. 40:69A-1 et seq. (Faulkner Act).
The facts are not in dispute. On December 17, 1958 the City of Bayonne, which was then governed by a board of commissioners under the Walsh Act, R.S. 40:70-1 et seq., enacted an ordinance creating the Parking Authority of the City of Bayonne pursuant to the Parking Authority Law, supra. Messrs. Burke, Carpenter, Pagurek, Drogin and Paul were appointed as commissioners for staggered terms ranging from one to five years, respectively. Burke, Carpenter and Pagurek were subsequently reappointed for five-year terms pursuant to N.J.S.A. 40:11A-4, when their original terms expired.
On July 1, 1962 Mayor-Council Plan C, one of the optional plans of government under the Faulkner Act (N.J.S.A. 40:69A-55 to 60), became effective in the city pursuant to a referendum previously adopted. The new municipal council appointed Messrs. Garito, Konieczko, Paul, Levis and Zebrowski as commissioners of the Parking Authority on July 16, 1962. (Paul is thus a commissioner of the Parking Authority by appointment of both the former city administration and the present governing body.)
Burke, Carpenter, Pagurek and Drogin claimed that they had valid continuing terms as commissioners of the Parking Authority, notwithstanding the change in the form of government. On the other hand, Garito, Konieczko, Levis and Zebrowski contended that the terms of the previous commissioners ceased and determined by operation of N.J.S.A. 40:69A-207 on July 1, 1962, the effective date of the Faulkner Act in the city, and that they were the legal holders of the offices involved. Because of this dispute, the Broadway National
Bank of Bayonne was faced with opposing claims to funds deposited with it in the name of the Parking Authority. In order to protect itself against double liability, the bank brought an action in interpleader, joining the Parking Authority and all those claiming to be commissioners. Thereafter, Burke, Carpenter, Drogin and Pagurek brought an action in lieu of prerogative writs against Garito, Konieczko, Levis and Zebrowski and the Mayor and Council of the City of Bayonne, seeking a judgment enjoining those defendants from interfering with the plaintiffs' terms of office and determining who are the legal and authorized commissioners of the Parking Authority. At the time these actions were instituted, the Parking Authority had outstanding contractual obligations in the amount of $75,000.
The actions were consolidated with the consent of the parties, all of whom moved for judgment on the uncontroverted facts.
The trial court held that a parking authority is "a separate public entity operating independently of the municipality in which it is formed," and that N.J.S.A. 40:69A-207 "does not encompass offices in other political subdivisions or the officers filling them, even if their duties and functions are exclusively within such municipality." Broadway Nat. etc., Bayonne v. Parking Auth. Bayonne, 76 N.J. Super. 139, 147 (Ch. Div. 1962). The court therefore concluded:
"* * * that the offices of commissioners of the Parking Authority of the City of Bayonne were not abolished and the terms of the incumbent officers did not cease and determine upon the taking effect of the Faulkner Act on July 1, 1962 at noon. Vincent Burke, Frank Carpenter, Sr., Jacob Drogin, Walter Pagurek and Alan Paul continue to hold office as lawful commissioners of the Parking Authority of the City of Bayonne, and the Broadway National Bank of Bayonne is directed to honor their right and title to control the bank account standing to the credit of the Parking Authority of the City of Bayonne." Id., at p. 148.
A judgment incorporating the above holding and granting the injunctive relief sought was thereafter entered.
The Mayor and Council of the city and Garito, Paul, Konieczko, Levis and Zebrowski appealed and we certified the matter while it was pending in the Appellate Division. Since no stay of the trial court's judgment was granted, the Broadway National Bank has elected not to file a brief on this appeal. Effectively, therefore, the only respondents are those parking authority commissioners who were appointed prior to the effective date of the Faulkner Act in the city.
Upon the taking effect of one of the optional plans of government under the Faulkner Act, the transition from the old form of government to the new is accomplished by N.J.S.A. 40:69A-207. That section provides:
"At 12 o'clock noon on the effective date of an optional plan adopted pursuant to this act, all offices then existing in such municipality shall be abolished and the terms of all elected and appointed officers shall immediately cease and determine; provided, that nothing in this section shall be construed to abolish the office or terminate the term of office of any member of the board of education, trustees of the free public library, commissioners of a local housing authority, municipal magistrates or of any official or employee now protected by any tenure of office law, or of any policeman, fireman, teacher, principal or school superintendent whether or not protected by a tenure of office law. If the municipality is operating under the provisions of Title 11 of the Revised Statutes (Civil Service) at the time of the adoption of an optional plan under this act, nothing herein contained shall affect the tenure of office of any person holding any position or office coming within the provisions of said Title 11 as it applies to said officers and employees. If the municipal clerk has, prior to the effective date of the optional plan, acquired a protected tenure of office pursuant to law, he shall become the first municipal clerk under the optional plan.
Provision for officers and for the organization and administration of the municipal government under the optional plan may be made by resolution pending the adoption of ordinances, but any such resolution shall expire not later than 30 days after the effective date of the optional plan."
On this appeal, the defendants-appellants (the "new" commissioners) contend that the part of section 207 which provides that upon the advent of the new government, "the terms of all elected ...