Goldmann, Kilkenny and Collester.
Defendant appeals from a Law Division judgment ordering his ouster as building inspector of Gloucester City and restoring plaintiff to that position. The sole question here is whether R.S. 40:171-168, granting tenure to building inspectors appointed in cities of the second class, is unconstitutional as special legislation. The facts are uncontroverted.
The local governing body by resolution appointed plaintiff to be building inspector for a three-year term, effective February 5, 1956. He served in that capacity until February 5, 1965, having twice been reappointed for similar terms in the interim. On January 1, 1965, the governing body, by resolution effective February 5 following, appointed defendant as building inspector. Plaintiff unsuccessfully objected to the appointment, claiming tenure under R.S. 40:171-168 which provides that building inspectors in second-class cities shall hold office during good behavior and not be removed except for inefficiency, incapacity, conduct unbecoming an employee, or other just cause, and then only after written notice and a hearing.
Plaintiff brought a proceeding in lieu of prerogative writs, claiming he was rightfully entitled to the office of building inspector under the cited statute and that defendant unlawfully held that office, and demanding judgment ousting defendant and restoring plaintiff thereto. Defendant answered, and by way of defense alleged that the statute, passed in 1914 (L. 1914, c. 50, § 1) was unconstitutional in that it violated Art. IV, Sec. VII, par. 11 of the 1844 New Jersey Constitution, and also Art. IV, Sec. VII, par. 9(5) and 9(13) of our 1947 Constitution. Defendant conceded that the statute was adopted as a general law and not as a
special one, so that no notice of intention to apply therefor had been given, as was then required by Art. IV, Sec. VII, par. 9 of the 1844 Constitution. He also stipulated that Gloucester City is a second-class city. After oral argument the trial judge held the statute constitutional and entered the judgment here under appeal.
Our Constitution of 1844 was effective when the 1914 act was passed. Art. IV, Sec. VII, par. 11 of that Constitution (amended in 1875) provided, in pertinent part, that
"The legislature shall not pass private, local or special laws in any of the following enumerated cases, that is to say:
Regulating the internal affairs of towns and counties; appointing local offices or commissions to regulate municipal affairs.
The legislature shall pass general laws providing for the cases enumerated in this paragraph, and for all other cases which, in its judgment, may be provided for by general laws. * * *"
The classification of cities by population for purposes of municipal legislation goes back to 1882. L. 1882, c. 46, now R.S. 40:167-1 and 2. Cities of the first class are those having a population exceeding 150,000; those of the second class a population of 12,000 to 150,000; those of the third class a population of less than 12,000, except cities bordering upon the Atlantic Ocean and being seaside and summer resorts; and, finally, those of the fourth class, consisting of cities bordering upon the Atlantic Ocean and being seaside and summer resorts.
Defendant contends that in all municipalities of this State, excepting second-class cities, building inspectors are appointed for a fixed term, citing by way of example N.J.S.A. 40:87-15 for boroughs, N.J.S.A. 40:145-12 and 13 for townships, and R.S. 40:171-58 for cities. But see R.S. 40:158-7 (villages) and R.S. 40:125-3 (towns). It is only by virtue of the 1914 act (R.S. 40:171-168) that building inspectors in second-class cities gained tenure of office from the ...