The complaint, filed on behalf of the Mayor of Highlands, seeks a declaratory judgment whether the Mayor or the majority of the governing body of the Borough of Highlands has the authority to make appointments and promotions in the Police Department. At a meeting of the Borough Council held November 9, 1972 defendant Davis was appointed by vote of the Council sergeant effective immediately but with the salary to start January 1, 1973. Defendants-intervenors voted in favor of the motion with the Mayor and one Councilman in opposition. By reason of a direct order from the Mayor, Davis has not assumed the duties of sergeant. He counterclaims to recover the differential between his salary as patrolman and the salary of sergeant from January 1, 1973 and counsel fees incurred in the defense of this action. The matter is before the court on final hearing.
Highlands adopted SMALL MUNICIPALITY PLAN B (N.J.S.A. 40:69A-133 to 138) effective July 1, 1956. It has not adopted the provisions of Title 11 (Civil Service).
Ordinance #200 adopted April 8, 1940 established a police department. That ordinance in pertinent part provided:
1. The Police Department of the Borough of Highlands shall consist of two senior Officers and one junior officer, and such other employees as the Council may from time to time appoint.
Ordinance #0-68-5 adopted April 16, 1968 amended Section 1 of Ordinance #200 to provide:
(1) The Police Department of the Borough of Highlands shall consist of a chief of Police, a Captain of Police, one or more Sergents [ sic ] of Police and as many police officers as the council may from time to time appoint.
N.J.S.A. 40:69A-133 makes applicable to those municipalities adopting SMALL MUNICIPALITY PLAN B the provisions of N.J.S.A. 40:69A-120 to N.J.S.A. 40:69A-132, as well as certain other provisions of the Faulkner Act including N.J.S.A. 40:69A-28. The Mayor contends that under N.J.S.A. 40:69A-122 he has the appointment power to and within the police department with the advice and consent of the Council. N.J.S.A. 40:69A-122 provides:
An assessor, a tax collector, an attorney, a clerk, a treasurer and such other officers as may be provided by ordinance shall be appointed by the mayor with the advice and consent of the council. One person may be appointed to two or more such offices, except that one person shall not be the assessor and treasurer, or assessor and collector.
In the alternative the Mayor contends that he has the sole power of appointment by virtue of N.J.S.A. 40:69A-124 which provides:
All officers and employees whose appointment or election is not otherwise provided for in this article or by general law shall be appointed by the mayor. If the municipality has not adopted the provisions of Title 11 of the Revised Statutes (Civil Service), it shall be the duty of the mayor to recruit, select and appoint persons qualified by training and experience for their respective offices, positions and employments.
Defendant and defendants-intervenors argue, however, that the appointment of police officers is provided for by general law and, therefore, the appointment ...