For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
On December 17, 1963 the city council of the City of Clifton appointed Frank Pecci as a commissioner of the Passaic Valley Water Commission. Plaintiff filed an action in lieu of prerogative writs, demanding, inter alia, the following relief:
"(a) Declaring the appointment of Frank Pecci as a member of the Passaic Valley Water Commission, illegal and void;
(b) Declaring that the power to appoint the member of the Passaic Valley Water Commission from the City of Clifton is vested in the City Manager; * * *."
Upon cross-motions for summary judgment, the trial court entered judgment for plaintiff on said demands. The Mayor and Council of the City of Clifton and Frank Pecci appealed
to the Appellate Division. Before argument there, this Court certified the case. R.R. 1:10-1(a).
In 1927 the cities of Clifton, Passaic and Paterson applied, pursuant to R.S. 40:62-108 et seq., for the appointment of commissioners to acquire the waterworks owned by the Passaic Consolidated Water Company. The application was granted by a Justice of the then Supreme Court, and in February 1931 the three municipalities entered into a tripartite agreement "prescribing a method of electing or appointing a commission" for the operation of the waterworks and water system. R.S. 40:62-129. Said agreement provided:
"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 waterworks, to succeed the present Passaic Valley Water Commission. * * *"
For prior litigation involving this agreement see Boyle v. De Nooyer, 39 N.J. 245 (1963).
From 1931 to 1934 the city council of Clifton appointed Clifton's representative to the commission. Since 1934 Clifton has been functioning under "the municipal manager form of government law," R.S. 40:79-1 et seq., and the city council, as established under said statute, has continued to make the appointments. The question presented in this appeal is whether the city council or the municipal manager of the City of Clifton has the power to appoint Clifton's representative on the Passaic Valley Water Commission. As was noted in Boyle, supra, 39 N.J., at pp. 248-249, the manner of election or appointment of the Passaic Valley Water Commission members is that provided generally under the particular statutes which govern the respective municipalities to the compact. Accordingly, the provisions of the Municipal Manager Act, R.S. 40:79-1 et seq. are determinative.