For affirmance -- Chief Justice Garven, and Justices Jacobs, Hall and Mountain, and Judges Sullivan and Lewis. For reversal -- None. The opinion of the Court was delivered by Mountain, J.
Plaintiff is the Chief of Police of Hazlet Township. By this action in lieu of prerogative writ he challenges the validity of certain resolutions adopted by the governing body of that municipality. The resolutions provide that police sergeants are to be assigned such duty as the township committee may direct and that in the absence of such direction they are to be assigned to such duty as the Chief of Police may designate. The resolutions further specifically state that Sergeant Johnson be placed in charge of the Juvenile Squad and that Sergeant McCabe be continued as Safety Officer and on desk duty as heretofore. All organizational units are to report to the Police Captain who in turn is to report to the Chief of Police. The resolutions were adopted to implement a plan for restructuring the police department that the township committee had been considering for some time. Plaintiff maintains that the action is invalid as trespassing upon prerogatives inherent in his office of Chief of Police.
The trial court granted defendant's motion for summary judgment and the Appellate Division affirmed in an unreported opinion. We granted certification. 62 N.J. 81 (1972).
The resolution of the issue before us requires some definition of the power of a chief of police of a township as compared with those retained by and reposing in the governing body. It is initially important to consider the relevant statutes. The police department of the Township of Hazlet was created in 1965 pursuant to N.J.S.A. 40:149-1, which read, in pertinent part,
The township committee may by ordinance establish a police department and provide for the regulation, control and management of a police force, and may, by resolution, appoint such members and officers of such police force as they may deem necessary.
This statute applied solely to townships. In effect at the same time as this statute, there was also a more comprehensive
act, applicable to all municipalities including townships, which read as follows:
The governing body of every municipality may make, amend, repeal and enforce ordinances to establish, maintain, regulate and control a police department and force, and subject to the provisions of article 3 of this chapter (§ 40:47-21 et seq.), a paid fire department and force therein; to prescribe and establish rules and regulations for the government and discipline thereof; the appointment, terms and removal of the officers and members thereof, and to prescribe their duties and fix their compensation. [ N.J.S.A. 40:47-1]
Both these enactments were repealed in 1971 and replaced by the following:
The governing body of any municipality, by ordinance, may create and establish a police department and force and provide for the maintenance, regulation and control thereof, and except as otherwise provided by law, appoint such members, officers and personnel as shall be deemed necessary, determine their terms of office, fix their compensation and prescribe their powers, functions and duties and adopt and promulgate rules and regulations for the government of the department and force and for the discipline of its members. [ N.J.S.A. 40A:14-118]
The act last quoted, which is the law today, is not significantly different for our purposes from the earlier legislation it replaced. Of particular importance to a consideration of the narrow issue here presented is the fact that the office of chief of police is nowhere mentioned in any of these statutes. The power to establish, maintain, regulate and control the police department, to appoint personnel, to prescribe their respective powers, functions and duties and to fix rules and regulations for the government of the police department and the police force is very explicitly and broadly given to the municipal governing body. The chief of police derives no power or authority directly from the statute; it cannot be said that his is a statutory office. ...