Browne v. Hagen

• Decision Date: 17 June 1918
• Citation: 104 A. 207
• Parties: BROWNE v. HAGEN.
• Court: New Jersey Supreme Court

104 A. 207

BROWNE

v. HAGEN.

Court of Errors and Appeals of New Jersey.

June 17, 1918.

Appeal from Supreme Court.

Quo warranto by the State, on the relation of J. Alexander Browne, against Orville R. Hagen. From a judgment (100 All. 857) for relator, respondent appeals. Reversed.

William I. Lewis, of Paterson, for appellant. Peter J. McGinnis, of Paterson, for appellee.

GUMMERE, C. J. This is a quo warranto proceeding, brought for the purpose of determining the title to the office of health inspector of the city of Paterson. The relator by his information challenges the right of the respondent, Hagen, who is the incumbent, to continue in the occupation of the office, and asserts his own right to hold it. The respondent demurred to the information, and upon the hearing before the Supreme Court judgment was directed for the relator. From that judgment the respondent appeals.

The information discloses the following facts: In November, 1903, the board of health of the city of Paterson appointed Browne, the relator, health officer of that city. On the 13th of November, 1906, the board reappointed him for a term of three years. On the 13th of November, 1909, he was again reappointed for a term of three years, and until his successor should be appointed. At the general election held in the city of Paterson in November, 1912, that municipality adopted the Civil Service Act (Acts 1908, c. 156). Subsequent to its adoption the board of health of Paterson made several attempts to appoint a health officer to succeed Browne, but these attempts were, each of them, ineffectual, because of the inability of the members of the board to agree upon an appointee, until January 12, 1915. On this latter date one Thomas A. Clay was appointed to the office. In the meantime, and until the appointment of Dr. Clay, the relator continued in the occupation of the office and in the enjoyment of its emoluments. Dr. Clay entered into the possession of the office shortly after his appointment, and continued to hold it for nearly two years, and then resigned. The board of health accepted his resignation, and on the 14th of November, 1916, appointed Hagen as his successor. Some little time after this latter appointment the relator filed the present information, and seeks to support it upon the ground that, being legally in office at the time of the adoption of the Civil Service Act, he was by virtue of its provisions entitled to hold the office during good behavior.

The civil service law applies only to those offices the terms of which are not fixed by law. The question which the present case presents, therefore, is this: Was the office of health inspector of, the city of Paterson, which was held by Dr. Browne at the time of the adoption of the civil service law by that city, one the term of which was, fixed by law, or one which had an indefinite term? The power of the board of health of Paterson to appoint a health inspector at the time of the appointment and reappointments of Dr. Browne to that position was conferred by the thirty-first section of the General Health Act of 1887 (Comp. Stat. p. 2669), which provides that:

"Local boards of health shall have power and authority to appoint such subordinate officers and agents * * * as they may deem necessary, to fix the term of such appointments and the compensation of such appointees."

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