Brenner v. City Of Bayonne
| Decision Date | 24 July 1944 |
| Docket Number | No. 211.,211. |
| Citation | 132 N.J.L. 47,38 A.2d 569 |
| Parties | BRENNER v. CITY OF BAYONNE et al. |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
Certiorari by Alfred Brenner to review action of City of Bayonne, the Board of Commissioners of the City of Bayonne, and Casimir Tokarski, Director of the Department of Public Affairs of the City of Bayonne, who abolished the office of city counsel held by prosecutor.
Writ dismissed.
May term, 1944, before CASE, BODINE, and PORTER, JJ.
Alfred Brenner, of Bayonne, pro se. for prosecutor.
William Rubin, of Bayonne, for respondents.
The prosecutor, Alfred Brenner, seeks to set aside an ordinance of the City of Bayonne which purported to abolish the office of city counsel held by him. He was appointed to that office on March 25, 1943 and occupied it until June 1, 1943, when he was legislated out of office by the adoption of the ordinance under review, which abolished the office. This action was taken by an entirely new Board of Commissioners, which was elected on May 11, 1943 and took office on May 18, 1943. Bayonne is governed under the provisions of the Walsh Act. R.S. 40:171 et seq., N.J.S.A.
The primary and controlling question seems to be whether the office of city counsel of Bayonne, a second-class city, is created by statute and therefore may not be abolished by ordinance. The prosecutor relies on R.S. 40:171-109, N.J.S.A., which he contends makes mandatory that all cities of the second class shall engage city counsels and fixes the terms of office at three years. We do not so interpret this statute. It provides how offices in second-class cities shall be filled and provides for the terms thereof. It says that the specified officers shall be ‘in lieu of and to be substituted for, and to act in the place of, and who shall in each case respectively be invested with and shall perform all the powers and duties of any such officers by whatsoever title they may be designated now by law to act therein;’ and further provides that the terms of the first officers appointed under the act shall date from the time of the expiration of the terms of their predecessors. It is significant that the statute did not prescribe the duties of the offices but simply provided that the officers so appointed ‘shall perform the same duties and receive the same emoluments as are now provided by existing laws.’ It seems to us that this statute created no new offices but was for the purpose of replacing existing officers. This...
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...as we have been informed, in no other type of numicipality is that mandatory. Cf. R.S. 40:171--109, N.J.S.A.; Brenner v. City of Bayonne, 132 N.J.L. 47, 38 A.2d 569 (Sup.Ct.1944), affirmed o.b. 132 N.J.L. 469, 41 A.2d 136 (E. & In fact, the 1894 act was self-executing and itself 'constitute......
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