Beirne v. Gangemi

• Decision Date: 21 September 1961
• Docket Number: No. L,L
• Citation: 174 A.2d 100,69 N.J.Super. 220
• Parties: Francis X. BRIRNE, Plaintiff, 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. 18865--60 P.W.
• Court: New Jersey Superior Court

Page 220

69 N.J.Super. 220

174 A.2d 100

Francis X. BRIRNE, Plaintiff, 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.

No. L 18865--60 P.W.

Superior Court of New Jersey Law Division.

Sept. 21, 1961.

Joseph A. Davis, Jersey City, for plaintiff.

Ezra L. Nolan, Jersey City, for defendants (T. James Tumulty, Jersey City, appearing).

PINDAR, J.S.C.

The complaint filed herein is in lieu of prerogative writ (in the nature of Quo warranto). Plaintiff claims the office of City Collector of the City of Jersey City. He sues Thomas Gangemi, individually and as Mayor, and Lawrence J. Camisa, individually and as Director of Finance. The first count seeks: (a) to rescind a letter dated July 6, 1961 by Lawrence J. Camisa as Director of Finance, the substance and purpose of which was to terminate plaintiff's service, compensation and tenure in the office of City Collector; and (b) direction that plaintiff be permitted to continue in all respects as City Collector for the balance of his term (December 31, 1964). A second count seeks to set aside the said letter (July 6, 1961) as being illegal. A third count seeks a determination and adjudication of plaintiff's rights in the premises, namely, the office of City Collector. Otherwise stated, the defendants acted contrary to the provisions of R.S. 11:28--2, N.J.S.A. and N.J.S.A. 40:69A--207, referred to hereafter.

By answer filed defendants deny the legality of any right of plaintiff, and as well the validity of his appointment, to the office of City Collector, and his right to perform the duties of such office. In the manner of separate defenses defendants aver (1) no office of City Collector existed to entitle plaintiff to claim tenure; (2) the office of City Collector (if it existed) was abolished by N.J.S.A. 40:69A--207 and was not recreated; and (3) a reservation to advance other defenses before hearing. Defendants demand judgment in accordance with these defenses.

Now the parties on notice of motion and briefs respectively seek a summary judgment under R.R. 4:58--3. In adopting that rule it is necessary the moving parties singly show that palpably there is no genuine issue of a material fact, and by reason thereof there is the right of such party to have a judgment as a matter of law. No disputed factual circumstance appears in the record, as indicated by the stipulation filed herein. Therefore, the mutually acceded facts will guide the court in the application of controlling statutes and law.

In the light of the related issue (quo warranto) the plaintiff assumes the burden to establish the existence of the questioned office and the validity of his title thereto. Monte v. Milat, 17 N.J.Super. 260, 85 A.2d 822 (Law Div.1952).

Commencing with the year 1851 the subject municipality functioned under various charter forms of government which continued until 1913 when the citizenry adopted the commission form of government (called Walsh Act hereafter), R.S. 40:70--1 et seq. N.J.S.A. This form of government was in effect continuously until the adoption of the supplemental optional municipal charter law designated as the Faulkner Act (Strong Mayor Plan C), N.J.S.A. 40:69A--1 et seq. This was accomplished in November 1960, and by successive proceedings resulted in the election of Thomas Gangemi as Mayor, whose authority extended to government affairs with relation to municipal finances, particularly the duty to collect taxes, including the authority to appoint Lawrence J. Camisa as Director of Finance.

In addition, the municipality prior to the Walsh Act adopted the Civil Service Act, now N.J.S.A. 11:1--1 et seq. Upon the change of government the therefore governing bodies were abolished and the tenure of all offices ceased and terminated, but protection was provided for classified civil service employees. With the adoption of the Walsh Act the then City Collector was an appointee of the Board of Finance and Taxation and a beneficiary of the aforementioned protection.

In a stipulation filed the parties agree that the difference between plaintiff's salary of $8,000 Per annum, from January 22, 1960 to June 30, 1961, and $7,000, if he had been paid $7,000 a year, is $1,446.24. In addition, the parties through counsel stipulated in court that if plaintiff succeeds in this proceeding to the possession of the title of City Collector, the said sum of $1,446.24 would be refundable in satisfaction of the salary differential.

The disputed legal issues can be stated as involving substantially the following contra-contentions: (a) Did the office or position of City Collector exist at the inception of the Faulkner Act, and, if so, did plaintiff possess title thereto; (b) if plaintiff possessed said municipal employment, could his rights be terminated in the manner here attempted; or was such action barred by protection of term tenure under Civil Service; and (c) in the event plaintiff's appointment is valid, should he reimburse the municipality for income paid him in excess of lawful compensation?

Item (a) calls for consideration of the related history of the creation and continuance of the subject office. It is inescapable that the entity of City Collector was actually maintained and prevailed under due appointment subsequent, during and throughout the period when the local government functioned under the Walsh Act. Such act did not abolish the offices then existing, except where inconsistent with its provisions. The charter provision act of March 31, 1871, L.1871, p. 1094, sec. 26, in effect at the adoption of the Walsh Act, continued the office of City Collector, and said office was not inconsistent with the Walsh Act. See Mattia v. City of Newark, 119 N.J.L. 268, 196 A. 202 (Sup.Ct.1938); Salter v. Burk, 83 N.J.L. 152, 83 A. 973 (Sup.Ct.1912); Burke v. Kenny, 9 N.J.Super. 160, 75 A.2d 633 (App.Div.1950).

In that posture, in the event plaintiff's appointment is valid, N.J.S.A. 40:69A--207 is the controlling provision under a Faulkner Act form of government, which renders protection to him within the following language: '* * * 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.' R.S. 11:28--2, N.J.S.A., provides tenure of office when there is a change in the form of government is a municipality. See Devlin v. Cooper, 124 N.J.L. 155, 11 A.2d 29 (Sup.Ct.1940). And the office of City Collector is in the unclassified service as covered by such law, N.J.S.A. 11:22--2(o).

Accordingly, it is concluded under fact and law that the office or position of City Collector did prevail prior to the adoption of the Faulkner Act, and continued to prevail thereafter.

It is undisputed that plaintiff on August 7, 1956 was appointed to the unexpired term of his predecessor (who died July 18, 1956), which term ran to May 19, 1957. Moreover, in that situation the statute provided the term of such appointee 'shall run for the unexpired term and until the qualification of a successor.' (N.J.S.A. 40:46--6.1). Thus, defendants' observation that plaintiff after May 19, 1957 should have had a 'second appointment' to May 19, 1961, which would extend beyond the expiring term of the appointing authority (May 16, 1961), is without merit.

Item (b) must be considered in the light of what is urged by plaintiff as the basis of the authority for appointment, i.e., the letter dated January 21, 1960, by James F. Murray, the Director of Revenue and Finance, to the board of commissioners including the resolution ratifying and confirming said appointment by the governing body on July 19, 1960. As this situation stresses the foremost positions of the parties, the contents of the letter are fully set forth as follows:

'This is to advise that by virtue of the authority vested in me as Director...