Ackley v. Norcross
| Decision Date | 23 June 1939 |
| Docket Number | No. 14.,14. |
| Parties | ACKLEY v. NORCROSS et al. |
| Court | New Jersey Supreme Court |
Proceeding on an information in the nature of quo warranto by Jay M. Ackley against James Norcross and another to contest the right to office of under-sheriff of Camden County.
Information dismissed.
Argued May term, 1939, before BROGAN, C. J., and DONGES and PORTER, JJ.
W. C. Gotshalk, of Camden, for relator.
Albert S. Woodruff, of Camden, for defendants.
The relator, Jay M. Ackley, claims to be entitled to office as under-sheriff of Camden county and by this information contests the right to the office of the two defendants, James Norcross and Frank Anthony Ayres, who presently occupy office as under-sheriffs in said county.
The pleadings and stipulation of facts, agreed to by the parties, disclose that the relator was appointed as under-sheriff of Camden county November 10, 1926, by the then sheriff, and was appointed by the three succeeding sheriffs to the same office, serving during the entire incumbency of the said four sheriffs. On November 15, 1938, the then sheriff-elect, Frank B. Luker, advised relator in writing that he would not require his services in the office upon his assuming the office of sheriff on the following day. On November 16, 1938, he appointed as one of his under-sheriffs defendant James Norcross and on March 20, 1939, he appointed as another under-sheriff defendant Frank Anthony Ayres, both of whom duly qualified and assumed the offices. The relator is an honorably discharged veteran and an exempt fireman, under the laws of this state. Each of the said four appointments of relator by the various sheriffs was in writing and irk identical form, except as to dates and signatures. The terms of the appointments were stated, in part, as follows: "during my pleasure and until the expiration of my office unless I shall before revoke this, appointment."
The pertinent question presented for decision is whether or not the relator had tenure of office. The statute protects veterans from removal from office where their terms of office are not fixed by law. R.S. 38.16-1, 2, N.J.S.A. 38:16-1, 2. The same was true as to exempt firemen, R.S. 40:47-60, N.J.S.A. 40:47-60, until June 16, 1938, when P.L.1938, p. 964, N.J.S.A. 40:47-63 et seq., became effective, which statute did not contain the limitation tothose whose terms were fixed by law, but excepted only those offices or positions created by the Constitution.
The relator contends that he has tenure under both statutes; that as a veteran he comes within the provisions of R.S. 38:16-1, N.J.S.A. 38:16-1, supra, for the reason that his term of office was not fixed by law; and that as an exempt fireman he comes within the statute of 1938, supra, his office not having been created by the Constitution.
R.S. 40:41-30, N.J.S.A. 40:41-30, authorizing the appointment of under-sheriffs, provides that they "shall hold office during the pleasure of the sheriff making the appointment or his successor." The contention is that the words "or his successor" must be...
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