DeVita v. Housing Authority of City of Paterson

• Decision Date: 31 January 1955
• Docket Number: No. A--76,A--76
• Citation: 111 A.2d 497,17 N.J. 350
• Parties: Romeo DE VITA, Plaintiff-Appellant, v. HOUSING AUTHORITY OR CITY OF PATERSON and William Bentele, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 350

17 N.J. 350

111 A.2d 497

Romeo DE VITA, Plaintiff-Appellant, v. HOUSING AUTHORITY OR CITY OF PATERSON and William Bentele Defendants-Respondents.

No. A--76.

Supreme Court of New Jersey.

Argued Jan. 10, 1955.

Decided Jan. 31, 1955.

Saul M. Mann, Paterson, for appellant.

Ervan F. Kushner, Paterson, for respondents (Harry Zax, Paterson, attorney).

The opinion of the court was delivered by

JACOBS, J.

The Appellate Division, in an opinion reported in DeVita v. Housing Auth. of Paterson, 31 N.J.Super. 394, 107 A.2d 39 (1954), held that the plaintiff's indefinite appointment as secretary-treasurer and executive director of the Housing Authority of the City of Paterson did not give him the benefits of the Veterans' Tenure Act; it accordingly affirmed the summary judgment which the Law Division had entered in favor of the authority. We granted certification under R.R. 1:10--2. See 16 N.J. 207, 108 A.2d 121 (1954).

The Paterson Authority was created by municipal resolution in 1941 pursuant to the provisions of the Local Housing Authorities Law. See L.1938, c. 19; N.J.S.A. 55:14A--1 et seq. That act declared the urgent public need for the construction of housing projects for persons of low income and was designed to implement the far-reaching national housing program which contemplated federal loans and subsidies to local public housing agencies. 42 U.S.C.A. § 1401 et seq.; Tretter, Public Housing Finance, 54 Harv.L.Rev. 1325, 1329 (1941). Its constitutionality was readily sustained in Romano v. Housing Authority, Newark, 123 N.J.L. 428, 10 A.2d 181 (Sup.Ct.1939), affirmed 124 N.J.L. 452, 12 A.2d 384 (E. & A.1940), where the court recognized the intimate relationship between decent housing and the public welfare and upheld vital provisions of the act as proper exercises of the police power. See Ryan v. Housing Authority of Newark, 125 N.J.L. 336, 343, 15 A.2d 647 (Sup.Ct.1940); Con Realty Co. v. Ellenstein, 125 N.J.L. 196, 200, 14 A.2d 544 (Sup.Ct.1940). Cf. Robinson and Weinstein, The Federal Government and Housing, 1952 Wis.L.Rev. 581, 583; Foley, Low-Rent Housing and State Financing, 85 U. of Pa.L.Rev. 239, 251 (1937); Gillette, Public Housing in New Jersey, 64 N.J.L.J. 541 (1941).

Paragraph 5 of the act (L.1938, c. 19, p. 69; N.J.S.A. 55:14A--4) set forth that the governing body of any municipality may, by resolution, create a local housing authority and that it 'shall constitute an agency and instrumentality of the municipality' creating it. It also prescribed that five persons shall be designated as commissioners of the authority and that their terms shall be one, two, three, four and five years, respectively. The term of each succeeding commissioner was fixed at five years, with any vacancy being filled for the unexpired term. Paragraph 7 of the act (L.1938, c. 19, p. 72; N.J.S.A. 55:14A--6) set forth that the authority may employ a secretary (who shall be executive director) and other employees and officers and 'shall determine their qualifications, duties and compensation.' No fixed term for the secretary was prescribed in the act and the statutory power to determine his qualifications, duties and compensation did not expressly include his term. Paragraph 8 of the act set forth that the authority 'shall constitute a public body corporate and politic, exercising public and essential governmental functions' and that its powers shall include that of making, amending and repealing 'by-laws, rules and regulations, not inconsistent with this chapter.' L.1938, c. 19, p. 73; N.J.S.A. 55:14A--7. The authority did adopt by-laws which provided in section 1 that its officers shall be a chairman, a vice-chairman, and a secretary-treasurer; in section 4 that the secretary shall be the executive director and, as such, have general supervision over the administration of its business and affairs, subject to the direction of the authority; in section 6 that any person appointed to fill the office of secretary 'shall have such term as the Authority fixes'; and in section 7 (as it appeared in the authority's appendix) that vacancies shall be filed as follows:

'Should the offices of the Chairman or Vice Chairman become vacant, the Authority shall elect a successor from its membership at the next regular meeting and such election shall be for the unexpired term of said office. When the office of Secretary-Treasurer becomes vacant, the Authority shall elect a successor from its membership at the next regular meeting and such election shall be for the unexpired term of said office. When the office of Secretary-Treasurer becomes vacant, the Authority shall appoint a successor, as aforesaid.'

On March 31, 1942 John E. Quinn was appointed as acting-executive director 'at the will of the Housing Authority and until such time as a permanent Executive Director is appointed.' On May 26, 1942 James D. Ward was employed as secretary for a period of one year. On May 13, 1943 George Brooks was appointed executive director without any stated term of office. On February 13, 1951 the authority adopted a resolution which stated that whereas the offices of secretary and treasurer had become vacant due to the death of George Brooks, and whereas it was necessary that a successor be appointed:

'Now, Therefore, Be It Resolved by the Commissioners of the Housing Authority of the City of Paterson that Romeo T. DeVita be and he hereby is appointed Treasurer of the Housing Authority of the City of Paterson, and that he be and hereby is selected, appointed and employed as Secretary of the Housing Authority of the City of Paterson effective February 15, 1951, and that in such capacity, he performs all the duties of Treasurer, Secretary and Executive Director in compliance with the by-laws of the Housing Authority of the City of Paterson, statutes of the State of New Jersey, and the rules and regulations of the Public Housing Administration.'

The aforesaid resolution appointing the plaintiff Romeo DeVita did not seek to fix any definite term of office and he continued to serve as secretary-treasurer and executive director until the authority adopted a resolution terminating his services 'effective December 15, 1953.' No charges were ever made against the plaintiff nor was he ever given a hearing; he is a disabled veteran, having served in World War II from August 25, 1942 to January 29, 1946 when he was honorably discharged, and he claims the protection of the Veterans' Tenure Act. R.S. 38:16--1, N.J.S.A.; R.S. 38:23A--3, N.J.S.A.

R.S. 38:16--1, N.J.S.A. affords veterans' tenure protection to state, county and municipal officers and employees whose terms of office are not 'fixed by law'; such officers and employees may not be removed 'except for good cause shown after a fair and impartial hearing.' The underlying policy is of long standing and has been dealt with repeatedly in our courts. If a definite term of the veteran's office or employment has been legislatively fixed by statute, or must be fixed in accordance with statutory direction, or has been fixed in accordance with statutory delegation, then the tenure provisions are inapplicable (cf. Talty v. Board of Education, Hoboken, 10 N.J. 69, 71, 89 A.2d 391 (1952)); otherwise they are controlling and are not to be whittled away. See Stewart v. Board of Chosen Freeholders of Hudson, 61 N.J.L. 117, 119, 38 A. 842 (Sup.Ct.1897), where the court sustained the veteran's tenure claim of a deputy warden whose term of office was not fixed by statute or pursuant to its direction or delegation but was nevertheless fixed by a resolution of the county board of freeholders; in the course of his opinion Justice Dixon said:

'We also think that the resolution mentioned goes beyond the authority of the board in its attempt to limit the relator's appointment to one year. The act of March 14, 1895, defines the tenure by which all such positions are to be held, when the incumbents are persons of the character therein described, and the term is not otherwise fixed by the laws of the state. It not only forbids the removal of such persons except for good cause shown, after a fair and impartial trial, and declares that political reasons shall not constitute good cause; but it affirmatively ordains that they shall hold their positions during good behavior, and so prevents the appointing power from setting any other bound to the duration of the incumbency. Thus, every office or position under the government of the state, or of any county or city, when occupied by one of these favored citizens, is held either for a term fixed by the law of the state, or during the good behavior of the incumbent. This clause of the statute we regard as establishing a legislative policy which cannot be thwarted by the simple device of making appointments for a specified term. The various bodies and officers empowered to fill these places may fill them or not, as they choose, with honorably discharged Union soldiers, sailors, or marines; but, if they do so fill them, they can exact from their appointees no stipulation which will defeat the legislative design that the incumbency shall continue during good behavior. As well might they attempt to provide that the posts should become vacant when the political complexion of the appointing power should change.'

See also Greene v. Hudson County Board of Health, 19 N.J.Super. 453, 88 A.2d 662 (Law Div.1952); Kessler v. Minard, 134 N.J.L. 583, 49 A.2d 580 (Sup.Ct.1946); Fox v. Board of Education of Newark, 129 N.J.L. 349, 29 A.2d 736 (Sup.Ct.1943), affirmed, 130 N.J.L. 531, 33 A.2d 909 (E. & A.1943); Sheridan v. McCurnin, 124 N.J.L. 493, 12 A.2d 255 (Sup.Ct.1940).

The Appellate Division took the position that the only proper and legal appointment of secretary-treasurer and executive director of the Paterson Housing Authority 'was one designating a term' (DeVita v. Housing Auth. of Paterson, supra, 31 N.J. Super., at page 401, 107 A.2d at page 42) and that consequently the ...