Kilkenny, Labrecque and Lane. The opinion of the court was delivered by Lane, J.A.D.
The complaint sought a declaratory judgment that the "assignments to duty of the individual plaintiffs by the defendant Chief of Police were illegal and beyond the power and authority of the defendant Chief." Before answer filed defendant moved to dismiss the complaint on the grounds that the individual plaintiffs had failed to exhaust their administrative remedies; that the plaintiffs were estopped by a judgment in a prior action by the defendant against the city council (Visotcky v. City Council, Garfield , Docket No. L-16516-69); and that the defendant was entitled to judgment "as a matter of law on the merits." The trial court granted judgment in favor of defendant and against plaintiffs. As near as we can make out from the trial court's oral opinion, the basis for the judgment was that the ordinances under which the city council made the appointments of the individual plaintiffs to positions in the police department were invalid as an illegal intrusion of the legislative branch of the municipal government into the executive branch of the municipal government. Plaintiffs appeal.
Initially we point out that the trial court's reason for holding the ordinances invalid, separation of powers, is without
foundation in law. "While the separation doctrine is applicable to the Federal Government and to our State Government, it generally has no applicability to our city governments." Eggers v. Kenny , 15 N.J. 107, 120 (1954).
The City of Garfield is a second class city incorporated under L. 1899, c. 135, p. 283 (N.J.S.A. 40:107-1). In 1957 it adopted the Civil Service Act pursuant to N.J.S.A. 11:19-2.
On December 29, 1969 the city council adopted ordinance No. 1420 and resolution No. 50. In the earlier action (Docket L-16516-69), the validity of that ordinance and that resolution was attacked. Ordinance 1420 was a supplement to an ordinance entitled, "An Ordinance to Establish, Maintain, Regulate and Control a Police Department and To Fix the Compensation of the Members Thereof, in the City of Garfield, Bergen County, New Jersey." Section 1 provided that the police department shall consist of the chief of police and such other superior officers, patrolmen and any and all other members as may from time to time be appointed thereto. Appointment of the chief of police was to be by the mayor upon confirmation of the city council. Appointment of all other members was to be made by the city council. Section 2 provided that subject to the ultimate control of the city council the chairman of the public safety committee was to be the "Chief Executive officer of the Police Department." It further provided that such chairman was to make "any and all assignments to duty of the several officers and members of said Department. Subordinate to the Chairman of the Public Safety Committee and in his absence the Chief shall be in command of the said Police Department." Section 3 established the office of supervisor of traffic who was to be appointed by the city council "from among those members of the Department who shall have served as a superior officer not less than ten years." Resolution 50 apparently placed certain members of the police department under the command of the supervisor of traffic. In the earlier action the Law Division held that
ordinance 1420 was invalid "insofar as the establishment of the Chairman of the Public Safety Committee to be the chief execution officer of the Police Department" was concerned. However, the Law Division further held that insofar as the ordinance established a position of supervisor of traffic and provided that such supervisor was to be appointed by the city council, it was valid. The appointment of plaintiff Michael Glowa as supervisor of traffic was held to be proper. Resolution 50 setting forth which members of the police department were assigned to traffic duty under the command of the supervisor of traffic was declared invalid. No appeal was filed.
Following the judgment in the earlier case the city council adopted ordinance 1426 and ordinance 1427.
Ordinance 1426 is as follows:
A FURTHER SUPPLEMENT TO AN ORDINANCE ENTITLED "AN ORDINANCE TO ESTABLISH, MAINTAIN, REGULATE AND CONTROL A POLICE DEPARTMENT AND TO FIX THE COMPENSATION OF THE MEMBERS THEREOF, IN THE CITY OF GARFIELD, BERGEN COUNTY, NEW JERSEY."
BE IT ORDAINED by the City Council of the City of Garfield, Bergen County, New Jersey, as follows:
1. There is hereby created in the Police Department the position of automobile mechanic. Said automobile mechanic shall be appointed by the City Council from among the members of the Police Department. He shall receive the salary of a patrolman together with any and all other benefits to which he might be entitled as a patrolman. He shall be in charge of the repair and conditioning of motor vehicles owned by the City.
2. A Traffic Bureau is hereby established in the Police Department. The City Council is empowered to appoint as members of such Traffic Bureau two motorcycle policemen and two traffic officers. Said motorcycle policemen and traffic officers shall be appointed from the members of the Police Department and shall do motorcycle and traffic duty on regular tours of duty. The City Council shall also appoint from time to time such number as school marshalls as may appear needed whose duty shall be to perform services in the regulation of traffic for the safety of school children attending schools in the City. It shall be the duty of the Supervisor of Traffic to supervise the performance of the duties of the motorcycle policemen, traffic officers and police school marshalls.
3. All parts of ordinances inconsistent with this ordinance are hereby repealed as to such inconsistent ...