Beirne v. Gangemi

• Citation: 74 N.J.Super. 557,181 A.2d 800
• Decision Date: 06 June 1962
• Docket Number: No. A--53,A--53
• Parties: Francis X. BEIRNE, Plaintiff-Respondent, v. Thomas GANGEMI, individually and as Mayor of the City of Jersey City, and Lawrence J. Camisa, individually and as Director of Finance of the City of Jersey City, Defendants-Appellants. . Appellate Division
• Court: New Jersey Superior Court – Appellate Division

Page 557

74 N.J.Super. 557

181 A.2d 800

Francis X. BEIRNE, Plaintiff-Respondent, v. Thomas GANGEMI, individually and as Mayor of the City of

Jersey City, and Lawrence J. Camisa, individually

and as Director of Finance of the City

of Jersey City, Defendants-Appellants.

No. A--53.

Superior Court of New Jersey.

Appellate Division.

Argued May 7, 1962.

Decided June 6, 1962.

T. James Tumulty, Asst. Corp. Counsel, for appellants (Meyer Pesin, Corp. Counsel, atty., T. James Tumulty and Walter J. Hudzin, Jersey City, of counsel).

Joseph A. Davis, Jersey City, for respondent.

Before Judges GOLDMANN, FREUND and FOLEY.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

The principal issue raised by this appeal is whether plaintiff, who was collector of taxes of Jersey City at the time it changed its form of government under the Faulkner Act, N.J.S.A. 40:69A--1 et seq., is entitled to remain in his position. The Law Division opinion appears at 69 N.J.Super. 220, 174 A.2d 100 (1961).

I

Most of the significant facts of the case have been stipulated. The office of collector of taxes has existed in Jersey City since the granting of the 1871 charter (L.1871, p. 1094), which empowered the board of aldermen to appoint a 'city collector' (sec. 26). Actually, the office dates back to 1851, under the original charter of Jersey City (L.1851, p. 392, sec. 3). The office has continuously been occupied since at least 1871.

In 1913 the city adopted the Walsh Act (L.1911, c. 221; R.S. 40:70--1 et seq., as amended, N.J.S.A.), setting up a commission form of government. At the time the act took effect, the office of city collector was held by A. Harry Moore. His term of office came to an end on his election to the first board of commissioners. Indeed, he joined in the resolution adopted June 17, 1913 abolishing his term. The office was not immediately filled, but its duties transferred, by a resolution adopted the same date, to the director of revenue and finance, where they remained until 1917. On May 15, 1917 the board of commissioners appointed one James Radigan as city collector. Thereafter, successive boards of commissioners from time to time made appointments to that office:

Radigan received successive four-year appointments in 1921, 1925, 1929 and 1933. He died in November 1933.

On his death Joseph J. McGuirk was appointed to the unexpired term. He was reappointed in 1937 and served until November 1938, when he resigned.

Michael J. Rochford was then appointed to fill the unexpired term. He was reappointed in 1941, 1945, 1949 and 1953. He died in July 1956.

Beirne was appointed in Rochford's place by resolution adopted August 7, 1956, but the resolution failed to indicate whether this was for the regular four-year term or merely the unexpired term. By letter dated January 21, 1960 the director of revenue and finance advised the board of commissioners that 'I have this day appointed Francis X. Beirne Municipal Collector of Taxes of the City of Jersey City For a term in accordance with the statute and laws of New Jersey in such case made and provided, * * * at an Annual salary of $8,000 * * *.' (Italics ours) On July 19, 1960 the board of commissioners, by resolution, ratified and confirmed this appointment.

The compensation for the office of collector of taxes had been fixed at $7,000 by an ordinance adopted in September 1956. It is agreed that because of plaintiff's appointment on January 21, 1960 at a salary of $8,000, he received an overpayment of $1,446.24 as of June 30, 1961.

Jersey City had adopted the provisions of the Civil Service Act in 1911. The Department of Civil Service carried the Jersey City collector of taxes position on its records as one in the unclassified division of the Civil Service.

Jersey City has operated under Mayor-Council Plan C of the Faulkner Act (N.J.S.A. 40:69A--55 to 60) since noon of July 1, 1961. On July 6, 1961 defendant Camisa, the new director of finance, appointed by defendant Gangemi, mayor of Jersey City, informed plaintiff that his position had terminated as of July 1, 1961. On July 12, and upon written request of the director of finance, plaintiff removed himself from his office premises at the city hall.

The present proceedings, initiated by complaint in lieu of prerogative writs, sought judgment directing defendants to rescind the purported letter of termination and to permit plaintiff to continue in his office of collector of taxes for the balance of his term; setting aside the letter of termination; and determining plaintiff's rights in the premises. Upon cross-motions for summary judgment the Law Division entered a judgment determining that (1) plaintiff was validly appointed to the position for the term fixed by N.J.S.A. 40:46--6.1 ('a period of four years from the first day of January next following his election or appointment') and to continue to December 31, 1964, but at the annual salary of $7,000 fixed by the existing ordinance; (2) plaintiff's position was not abolished nor his term of office terminated on July 1, 1961 by the taking effect of the Faulkner Act plan; (3) plaintiff was to refund to the city the excess salary of $1,446.24 he had received between January 22, 1960 and June 30, 1961; (4) the July 6, 1961 letter of termination was set aside as null and void; and (5) defendants were forthwith to permit plaintiff to return to, serve in and perform the functions of his office, and to receive the lawful compensation therefor.

It should incidentally be noted that Jersey City's new Administrative Code spells out the duties of the 'city collector' (collector of taxes) and transfers the office to the new Department of Finance, Division of Revenue.

II

Defendants contend that the office of collector of taxes ceased to exist when Jersey City adopted the Walsh Act in 1913. This is not so.

A parallel situation was presented in Mattia v. Newark, 119 N.J.L. 268, 196 A. 202 (Sup.Ct.1938), involving the office of receiver of taxes of Newark, the charter designation of the official charged with the collection of taxes. By writs of Certiorari Mattia sought to review his removal from the office before the expiration of his term. At the time of his appointment the duties of that office had been transferred to the department of revenue and finance pursuant to the provisions of the Walsh Act. The court, citing and quoting from Salter v. Burk, 83 N.J.L. 152, 83 A. 973 (Sup.Ct.1912) held:

'* * * By the adoption of the Walsh act, the management of municipal affairs was entrusted to a board of commissioners, but the mechanism of the city's government and the provisions of its charter remained untouched; nor were general laws or charter provisions relating to the government of the city repealed, except when inconsistent with the provisions of the act.

Although the duties of the receiver of taxes in Newark were taken over and performed by the director of revenue and finance after the adoption of the Walsh act, the statutes and ordinances relating to the office of receiver of taxes still remained in full force. Salter v. Burk, 83 N.J.L. 152 (83 A. 973). * * *'

The court concluded that the office of receiver of taxes continued to exist even after the commission form of government was adopted by Newark. See also, Burke v. Kenny, 9 N.J.Super. 160, 163--164, 75 A.2d 633 (App.Div.1950).

The transitional section of the Walsh Act, L.1911, c. 221, sec. 2 (R.S. 40:71--9, N.J.S.A.) provided that the Term of any officer whether elective or appointive, shall immediately cease and determine upon adoption of the act. The statute did not abolish the office itself. We find no ordinance or statute abolishing the office of collector of taxes (city collector) of Jersey City; the office has continued in existence and been filled since, as hereinbefore indicated. There is nothing to support the conclusion that the Walsh Act was inconsistent with the provision of the 1871 Charter of Jersey City establishing that office. It is clear that the office survived the 1913 change of government.

Defendants' reliance upon Feeney v. Burke, 89 N.J.L. 359, 98 A. 192 (E. & A.1916), followed in Connors v. Bayonne, 36 N.J.Super. 390, 116 A.2d 48 (App.Div.1955), is misplaced. All that Feeney held was that the position of comptroller in Jersey City (like that of the treasurer and collector) was not a principal executive office after the adoption of the Walsh Act; the comptroller became a 'mere employe of the commissioners.' We therefore conclude that Jersey City's adoption of the Walsh Act did not abolish the office of the collector of taxes.

III

Defendants next argue that Jersey City's adoption of the Faulkner Act in 1961 put an end to plaintiff's office, and he may not claim the protection of section 40:69A--207 of that act because he did not enjoy an office protected by tenure or Civil Service. N.J.S.A. 40:69A--207 reads, in significant part:

'At 12 o'clock noon on the effective date of an optional plan adopted pursuant to this act, all offices then existing in such municipality shall be abolished and the terms of all elected and appointed officers shall cease and determine; provided, that nothing in this section shall be construed to abolish the office or terminate the term of office * * * Of any official or employee now protected by any tenure of office law * * *. If the municipality is operating under the provisions of Title 11 of the Revised Statutes (Civil Service) at the time of the adoption of an optional plan under this act, nothing herein contained shall affect the tenure of office of Any person holding any position or office coming within the provisions of said Title 11 as it applies to said officers and employees. * * *' (Italics ours.)

Positions in the unclassified service are protected by R.S. 11:28--2, N.J.S.A.:

'* * * when the form of government of any municipality * * * shall be changed, the officers and employees or persons in the * * * unclassified service of any subdivision...