Dolan v. City of Orange

• Decision Date: 09 November 1903
• Citation: 56 A. 130,70 N.J.L. 106
• Court: New Jersey Supreme Court
• Parties: DOLAN v. CITY OF ORANGE.

56 A. 130

70 N.J.L. 106

DOLAN

v. CITY OF ORANGE.

Supreme Court of New Jersey.

Nov. 9, 1903.

(Syllabus by the Court.)

Certiorari by John Dolan against the city of Orange to review the appointment of a city janitor. Affirmed.

Argued June term, 1903, before GARRISON, GARRETSON, and SWAYZE, JJ.

Leonard Kalisch, for prosecutor.

Thos. A. Davis, for defendant.

GARRISON, J. On January 27, 1902, the common council of the city of Orange, by resolution, appointed the prosecutor janitor of the police station of the city for the term of three years from February 1, 1902. A subsequent council by resolution declared the position to be vacant as of February 1, 1903, and appointed another person from and after that date. The prosecutor asks that the lastmentioned resolution be set aside "because the appointment of the prosecutor by the common council of the city of Orange to the position of janitor of the police station for the term of three years from February 1, 1902, and his acceptance of said position, constituted a contract for the term of three years from February 1, 1902, between the city of Orange and the prosecutor."

Under this reason for reversal, the prosecutor's contention is that the position to which he was appointed, not partaking in any degree of political power or governmental authority, was a mere position, as distinguished from an office; citing Uffert v. Vogt, 65 N. J. Law, 377, 47 Atl. 225, and Hardy v. Orange, 61 N. J. Law, 620, 42 Atl. 581, from the latter of which he quotes the following: "The appointment for a specified time to a position in the public service whose term is not fixed by law, and the acceptance of such appointment, constitutes a contract between the municipality and its appointee, the terms of which are binding upon both of the parties to it" This is the prosecutor's case.

We agree with the prosecutor that his position was not an office, and that a contract respecting its term was not an ultra vires act on the part of the city council. The legal proposition that he has quoted is, however, subject to one controlling exception, viz., that the contract between the municipality and its appointee shall not run counter to any provision of the statutory regulations respecting such municipality. Cramer v. New Brunswick, 57 N. J. Law, 478, 31 Atl. 384; O'Rourke v. Newark, 66 N. J. Law, 109, 48 Atl. 578.

With respect to the position to which the prosecutor was appointed the Legislature has, as it seems to me, annexed a condition that makes all contracts touching the term of tenure of such position voidable at the discretion of the common council. The language to which this effect is given is the italicized portion of section 8 of the revised charter of the city of Orange (P. L. 1869, p. 185), to wit:

"Sec. S. And be it enacted, that the common council shall, at their discretion, and from time to time, appoint and remove a town clerk, a town counsel, a collector of taxes, an auditor of accounts, a sealer of weights and measures, a marshal, a chief engineer of the fire department, a pound keeper or keepers, an overseer of the poor, a street commissioner, five commissioners of assessments, five commissioners of the sinking fund and as many policemen, assistant engineers, firemen and other officers and agents as they shall think necessary for the governing of the town, and the carrying into effect of the powers and duties imposed upon them by this act;

and that every person so appointed shall be a resident and legal voter of the town, and shall not be a member of the common council, and continue in his office until the same shall be declared vacant or until another person shall be appointed to succeed him therein, and shall enter upon his duties thereof."

Bearing in...