This writ of certiorari brings up the action of the city council of the city of Clifton in appointing twenty men to the firе department of that municipality, eighteen of whom were appointed to new positions created by action of the city council.
On November 4th, 1924, an ordinance was adopted, entitled “An ordinance to establish, regulate and govern the fire depаrtment of the city of Clifton,” which was amended on January 21st, 1930, and the' amendment being vetoed by the mayor, it was passed by the city council over his veto on February 4th, 1930. Prosecutor Hamill was a member of the council and voted to pass the amended ordinance over the veto of the mayor. Pertinent sections of the amended ordinance provide:
“Section 6. The personnel of the full paid fire department shall consist of a chiеf engineer and as many assistant engineers, lieutenants, master mechanics and firemen аs the city council may, from time to time, deem necessary for the efficient working of sаid department.
“Section 9. All members of the full paid fire department shall be appоinted by the fire committee, on the confirmation of the city council * * *.”
Prosecutor Hаmill contends that this ordinance is invalid because it does not fix the number of firemen and beсause it empowers the fire committee to establish the number thereof. Prosecutоr, as a member of the council, voted for the amendment .and made nominations of mеmbers of the fire department, by virtue of his position as a member of the fire committeе. Defendants assert that such conduct estops him from now objecting to action under sаid ordinance. We do not deem it necessary to decide whether or not he is estopped to question the validity of the ordinance, because we think it is valid legislation. Artiсle 17, section 1, of the Home Eule act (Pamph. L. 1917, ch. 152), provides that the governing body of every municiрality shall have power to pass ordinances to establish, maintain, regulate and сontrol a fire department, and to control the appointment of the members
It would appear, therefore, that the city had, by ordinance, created the department and had designated the mеthod of appointment of employes of such department. That method was by appointment of the fire committee and then by confirmation of such appointment by the council. This was the method pursued in this case and appears to be in accоrdance with law. Anderson v. Weehawken, 97 N. J. L. 371; 118 Atl. Rep. 208.
For does the ordinance leave the number of firemen to be appointed to the caprice of the committee, because the ordinance provides for nomination by the committee and confirmation by the council, so that the final judgment as to the number of employes as well as the necessity for such appointments is in the council. Hence, the determination as to the number deemed necessary, from time to time, is in the council and not in the committee. This may be by resolution. As was said in Green v. City of Cape May, 41 N. J. L. 45.
“Thе city can exercise its power, either by resolution or ordinance, whenever it is nоt restricted to a particular method. It is only in organizing the department, in drafting a plan оf government for it, or in prescribing the manner of the election of its officers and their duty, that the charter requires that the common council shall act by ordinance.
“The requirеment ceases there. The temporary and recurring necessities of the department can be supplied by motion and order. The employment of hands * * * can be transacted by resolution.”
Many cases in our courts are to the same effect.
When the council confirmed the appointments it was, in effect, the expression of the judgment of the council that the number of men appointed were neeesssary for the protection of the municipality, and an approval of the designation of the individuals. The presumption is in favor of the validity of the acts of the municipal authority.
For do we think that the appointees were officers calling
We have examined the several other grounds urged by prosecutor against the validity of the proceedings under review, and conclude that they are without merit.
The writ is dismissed, with costs.