O'Connell v. City of Bayonne

• Decision Date: 30 September 1926
• Docket Number: No. 278.,278.
• Citation: 134 A. 549
• Parties: O'CONNELL v. CITY OF BAYONNE et al.
• Court: New Jersey Supreme Court

134 A. 549

O'CONNELL

v. CITY OF BAYONNE et al.

No. 278.

Supreme Court of New Jersey.

Sept. 30, 1926.

(Syllabus by the Court.)

Certiorari by Patrick J. O'Connell to review resolutions of the Board of Commissioners of the City of Bayonne, Robert J. Talbot and others. Writ dismissed.

Argued before PARKER, BLACK, and CAMPBELL, JJ.

Patrick J. O'Connell, of Bayonne, pro se.

James Benny, of Bayonne, for defendants.

PARKER, J. This writ brings up a group of resolutions adopted on October 7, 1924, by a majority vote of the board of commissioners of Bayonne, whose municipal government is organized under the Walsh Act of 1911 (P. L. p. 462) and its supplements and amendments, especially the amendment of 1915 (P. L. p. 494 et seq.). The resolutions need not be quoted at length; they purport to direct the transfer of the prosecutor from his previous assignment as commissioner of public safety, to the commissionership of parks and public property, and Commissioner Daly from the latter to the former office.

It is argued for the prosecutor: (1) That the resolutions were without legal warrant; (2) that such change is authorized only when "it appears that the public service would be benefited thereby" (P. L. 1915, p. 496), and that in fact the public service was not so benefited; (3) that the resolutions were purely for political ends; (4) that the statutory authority to transfer applies only to cities with a board of three commissioners. Other points are stated, but, except as undertaking to meet the defenses of laches and acquiescence, hereafter discussed, they are all comprised in the above.

Taking up points numbered 1 and 4: The statutory authority in general terms seems clear, and applies to cities of either three or five commissioners, except that the mayor, qua mayor, and director of the department of public affairs may not be transferred. Woolley v. Flock, 92 N. J. Law, 65, 105 A. 489; Hendee v. Wildwood, 96 N. J. Law, 286, 114 A. 749, in the Court of Errors and Appeals. In the latter case it was held that the statutory provisions on this subject applied to cities either of three or five commissioners. Oliver v. Daly (N. J.) 131 A. 678, is cited to the contrary; but the question in that case was the alleged arbitrary alteration in the powers and duties of the several commissionerships, and not the transfer of the individual commissioners; and hence the remark about turning a commissioner out of his department must be read in the light of the case...