[138 NJSuper Page 596] Defendants have moved for an order to dismiss this action because the complaint fails to state a claim against them upon which relief can be granted, R. 4:6-2(e), or, in the alternative, for summary judgment, R. 4:46-2. Plaintiff has cross-motioned for summary judgment. The primary issue presented by the pleadings is whether the individual commissioners of Atlantic City are
being paid annual salaries in excess of those allowed by law. The secondary issue is whether they are required to reimburse the city for salaries taken in excess of the law if the first issue is decided in the affirmative.
The mayor and three of his fellow commissioners were elected in May 1972. The fifth commissioner, Quigley, was appointed to fill an unexpired term of his predecessor, who was elected in May 1972. Quigley resigned in early 1975.
The essential facts are not in dispute. Atlantic City is designated by N.J.S.A. 40:167-2 as a city of the fourth class. At all relevant times it operated under a commission form of government pursuant to the Commission Form of Government Law, N.J.S.A. 40:70-1 through 40:76-27.
Prior to 1929 the Commission Form of Government Law, as amended, provided that in fourth-class cities having from 40,000 to 90,000 population the mayor's annual salary should not be more than $4,800 and that of each commissioner not more than $3,500, N.J.S.A. 40:72-22(b), said salaries to be fixed by the board of commissioners, N.J.S.A. 40:72-23, 24. In 1929 § 24 was amended to authorize the commissioners to increase the salaries up to 50% of those authorized by N.J.S.A. 40:72-21 and 22. The maximum annual compensation under this statute was therefore increased to $7,200 for the mayor and $5,250 for each of the other commissioners, all subject to a referendum initiated by at least 15% of the electors. The commissioners accordingly increased their salaries to the authorized maximums without protest.
In 1953 the Legislature adopted N.J.S.A. 40:72-24.1a, which provided that in cities of the fourth class having a commission form of government and population of not less than 50,000 "the mayor's annual salary shall be $12,500.00 and that of each commissioner shall be $10,000.00."
By chapter 221 of the Laws of 1930, N.J.S.A. 40:72-25, it was enacted that:
Upon the promulgation of a new national or state census whereby the population by reason of its increase or decrease shall require any municipality operating under chapters 70 to 76 of this title (§ 40:70-1, et seq.), to pay its mayor and commissioners a greater or less salary, as herein provided, then the board of commissioners of such municipality may pass ordinances increasing or decreasing the annual salaries of the mayor and commissioners to conform to the newly promulgated census. [Emphasis supplied]
In 1969 N.J.S.A. 40:72-24.1a was again amended. It now provides:
Notwithstanding any other provision of law , in cities of the fourth class now or hereafter having a population of not less than 50,000 and having the commission form of government under subtitle 4 of title 40 of the Revised Statutes the annual salary of each commissioner other than the mayor may be fixed by ordinance at not more than $22,000 and that of the mayor at $2,500 above that fixed for the other commissioners. The said salaries shall be payable in installments in the same manner as in the case of other officials of the municipality. [Emphasis supplied]*fn1
On December 4, 1969 the board of commissioners enacted Ordinance No. 38 of 1969, providing that the salaries of the mayor and board of commissioners ...