Kolovsky, Fritz and Crane. The opinion of the court was delivered by Kolovsky, P.J.A.D.
The controversy before us has its genesis in a resolution adopted by the Board of Chosen Freeholders of Hudson County (Board) on December 10, 1970 reading in pertinent part as follows:
1. This Board hereby establishes that the title of Sheriff's Officer in the County of Hudson will be the title employed by this County to encompass the duties of Court Attendant, Process Server and County Correction Officer.
These consolidated appeals -- in Clark by a group of court attendants and in Murray by a group of other employees appointed by the sheriff -- are, to quote from the Attorney General's brief, "from various orders of the Civil Service Commission (Commission) which modified and implemented" the resolution and also from the refusal of the Commission to grant appellants a hearing with respect thereto. This court has heretofore stayed the effectiveness of the Commission's orders during the pendency of this appeal.
Since we are satisfied, for the reasons hereafter given, that the Board had no power to adopt its resolution of December 10, 1970, we need not deal with either the content of the Commission's orders purporting to modify and implement that resolution or the propriety of its refusal to grant appellants a hearing.
We recognize that, procedurally, the more appropriate vehicle for attacking the validity of the Board's resolution would be an action in lieu of prerogative writs in the Law Division. In fact, the plaintiffs in Clark had instituted such an action but that action was stayed by the trial court pending decision of the appeal before us. Hence -- and since the validity or invalidity of the resolution does not depend on facts other than those admitted in the record before us -- we proceed to a consideration of that question.
The power to appoint court attendants is vested in the sheriff of the county, an elected officer, by N.J.S.A. 2A:11-32. In addition he may, under N.J.S.A. 2A:11-35, by and with the consent of the board of chosen freeholders, "appoint not more than 4 persons as officers in charge of court attendants," the cited section further providing that
The positions of officers in charge shall be filled only by promotion from the personnel of court attendants in accordance with civil service laws and regulations.
The sheriff's power to appoint employees -- such as the plaintiffs in the Murray case -- is found in N.J.S.A. 40A:9-117, formerly N.J.S.A. 40:41-31, which authorizes the
sheriff to "select and employ the necessary deputies, chief clerks and other personnel."
Various sections of the statutes grant authority to the board of freeholders to fix or approve the salaries to be paid court attendants and classes of employees of the sheriff. But that power to fix or approve salaries -- and to approve the creation of the position of officers in charge of court attendants, see N.J.S.A. 2A:11-35 -- in nowise embodies a grant of power to the board to control the exercise by the sheriff of the authority granted him by the ...