Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.
The sole issue on this appeal is whether an appointment made by a city manager pursuant to the authority vested in him by R.S. 40:82-4(d) requires the approval of the governing body in a municipality operating under the municipal manager form of government, L. 1923, c. 113; R.S. 40:79-1 et seq. , as amended.
The City of Hackensack operates under the Municipal Manager Act. Plaintiffs, citizens and taxpayers of the city,
instituted a proceeding in lieu of prerogative writs in the Superior Court, Law Division, Bergen County, challenging the validity of defendant City Manager Reilly's appointment of one Conforti to a vacancy in the office of deputy chief of police. They contended that the appointment was invalid because not approved by the municipal council, such approval being necessary under R.S. 40:82-4. An answer was filed on behalf of the city manager as well as the city council in which defendants, by way of separate defenses, alleged that (1) the appointment had been made in accordance with the statute, R.S. 40:82-4(d), and paragraph (b) of section V of ordinance No. 654 governing the police department of Hackensack; and (2) Conforti had been validly appointed and lawfully held the office of deputy chief. Plaintiffs then gave notice of motion for summary judgment based upon the pleadings and a stipulation of facts attached to the notice. Among the facts stipulated was that the city manager had appointed Conforti to a vacancy in the office of deputy chief on October 10, 1962, had reported the appointment to a meeting of the city council held November 5, 1962, and that the city council had taken no confirmatory or formal action with respect to the appointment. The Law Division judge denied the motion, holding that the appointment need not be confirmed by the city council.
Defendants thereafter moved for summary judgment on the pleadings. The motion was granted, the trial judge again holding that Conforti's appointment need not be confirmed by the city council, and that the complaint did not set forth a cause of action upon which relief could be granted.
R.S. 40:82-4 deals with the duties and powers of a municipal manager. Subsection (d) provides that the municipal manager shall.
"Appoint and remove all department heads and all other officers, subordinates, and assistants for whose selection or removal no other method is provided in this subtitle [ R.S. 40:79-1 et seq. ], supervise and control his appointees, and report all appointments or removals at the next meeting thereafter of the municipal council."
The final paragraph of R.S. 40:82-4 reads:
"The municipal manager shall in all matters act under the direction and supervision and subject to the approval of the municipal council."
Ordinance No. 654 governing the Hackensack Police Department provides, in section V, paragraph (b):
"Appointments to the Department, the filling of vacancies and promotions shall be made by the City Manager in accordance with the rules and regulations of the State of New Jersey, Department of Civil Service, and as otherwise prescribed by the Statutes of the State of ...