Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.
This appeal was scheduled on an emergency basis. At the conclusion of the oral argument we announced that there would be an affirmance and a formal opinion would follow.
Defendants appeal from the Law Division's grant of plaintiff's motion for summary judgment and its denial of defendants' counter-motion for summary judgment, deciding that the appointment of Thomas B. Vogel as borough attorney, Stanley Galorenzo as borough engineer, and James Egan as borough assessor by the West Paterson Municipal Council was ultra vires and therefore null and void.
Prior to January 1, 1967 West Paterson was a borough existing under the general borough laws of New Jersey. On June 28, 1966 West Paterson held a referendum for a change in government in accordance with the provisions of N.J.S.A. 40:69A-1 et seq., the Optional Municipal Charter Law, commonly known as the Faulkner Act. On that date the
electorate voted in favor of a new form of government known as Small Municipality Plan C under that act, N.J.S.A. 40:69A-139 to 143. Thereafter, at the general election held in West Paterson on November 8, 1966 plaintiff Baumann was elected as the first mayor under the new form of government, and defendants Carter, March, Belford, Carlon, Leestma and May were elected councilmen. They and the mayor constitute the municipal council of West Paterson.
The effective date of the new form of government was January 1, 1967. N.J.S.A. 40:69A-207 provides that at noon of the effective date of an optional plan adopted under the Faulkner Act all existing municipal offices shall be abolished and the terms of all elected and appointed officers immediately cease and determine, provided that nothing in that section be construed to abolish certain designated offices (the attorney, engineer and assessor are not mentioned), and Civil Service tenure rights are preserved. The final paragraph of section 207 reads:
"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."
January 1 being a Sunday, the organization meeting was held on January 2. After the mayor and councilmen had taken their respective oaths of office, the organization meeting was duly convened. At that meeting there was introduced and passed by a vote of 6-1, the mayor voting in the negative, a resolution (hereinafter resolution No. 1) which referred to section 207, above, and whereby the municipal council made appointments to six offices, including those of attorney, engineer and assessor here in question. The resolution expressly stated that these appointments were to remain in effect pending the adoption of ordinances providing for the positions, and that the "temporary appointments shall hold office until their successors have been duly appointed and qualified."
It is immediately to be noted that the governing body had the right to make provision for officers by resolution pending the adoption of ordinances, by virtue of the quoted paragraph of section 207, but in that event the resolution was to expire not later than 30 days after the effective date of the optional plan -- here January 31. The resolution went amiss when it provided that the appointments were to remain in effect pending the adoption of the necessary ordinances and that the "temporary" appointees were to hold office until their successors were duly appointed and qualified. One can only conjecture as to when those events would happen.
Immediately after adopting the above resolution, the governing body adopted a second resolution (hereinafter No. 2), again by a vote of 6-1. It provided:
"That the mayor shall nominate and with the advice and consent of the council, appoint all officers of the Borough, excepting those offices which, by general law, are to be appointed by the mayor alone or by the council alone, those officers shall be appointed in the manner prescribed by general law. The mayor shall make such nomination within thirty days after the office becomes vacant. If the mayor fails to nominate within said thirty days, or the council fails to give their advice and consent to any nomination made by the mayor, then after the ...