Plaintiffs Thomas M. Mercadante and Mario Opromollo are, respectively, a duly appointed fireman and policeman of the City of Paterson. It is admitted that each had been a resident of the city for two years next preceding his appointment and hence met the requirements of N.J.S.A. 40:47-3. Recently the municipality has taken the position that plaintiffs' are no longer residents of Paterson within the meaning of certain statutes to be mentioned below, and therefore they are subject to disciplinary proceedings and may, in fact, no longer qualify for the positions to which they were appointed. Plaintiffs claim that they and others similarly situated are not, in fact, in violation of these statutes and have brought this suit as a class action seeking a declaratory judgment supporting their contention.
The pertinent statutory provisions are the following:
Except as otherwise provided by law, every person holding an office, the authority and duties of which relate to a county only, shall reside within the county, and every person holding an office, the authority and duties of which relate to a municipality, shall reside within the municipality. [ N.J.S.A. 40:11-1]
Whenever an officer of a municipality shall cease to be a bona fide resident therein, or whenever the resignation of any such officer shall have been accepted by the proper authority, a vacancy
in his office shall immediately exist, and he shall not exercise any of the duties of the office theretofore held by him. The municipality, by its proper authority, shall immediately proceed to fill the vacancy in the manner and form prescribed by law. [ N.J.S.A. 40:46-14]
The officers and men employed in every municipal police department and in every municipal paid fire department and the paid members of every municipal part paid fire department who are permanently employed by the municipality at a fixed annual salary and whose sole occupation is that of fireman in said municipal part paid fire department shall severally hold their respective offices and continue in their respective employment during good behavior, efficiency and residence in the municipality wherein they are respectively employed. [ N.J.S.A. 40:47-5]
Plaintiffs initially argue that neither N.J.S.A. 40:11-1 nor 40:46-14 apply since these statutes affect only officers; that firemen and policemen are not officers filling particular offices but are rather employees filling particular positions. The law appears well settled to the contrary. In this state policemen and firemen are municipal officers. Duncan v. Board of Fire, etc., Comm'rs , 131 N.J.L. 443, 445-446 (Sup. Ct. 1944); Isola v. Belmar , 34 N.J. Super. 544, 555 (App. Div. 1955); Guth v. North Bergen Tp. , 35 N.J. Super. 24, 27 (App. Div. 1955); Fitzpatrick v. Passaic , 105 N.J.L. 103 (Sup. Ct. 1928), aff'd 105 N.J.L. 632 (E. & A. 1929); LaPolla v. Union County Freeholder Board , 71 N.J. Super. 264, 272-273 (Law Div. 1961); Mastrobattista v. Essex County Park Comm'n , 85 N.J. Super. 283, 288 (App. Div. 1964).
In Kennedy v. Newark , 29 N.J. 178 (1958), it was decided that a residence requirement for governmental employment, whether at the state, county or municipal level and whether imposed by statute or ordinance, is constitutional. This is necessarily conceded by plaintiffs who, however, allege that they meet the residency requirements as set forth in the foregoing statutes.
Plaintiff Mercadante claims that he resides with his mother-in-law and father-in-law on one floor of a three family house in Paterson. He contributes to the rent and sleeps there several nights each week. Meanwhile, his wife
and two children live in a one-family residence in Hawthorne which he and his wife purchased for approximately $35,000. The children attend the neighborhood school in Hawthorne and plaintiff sleeps there about three nights a week. There are no marital difficulties between him and his wife. He attends a church in Paterson, while the other members of his family ...