Fredericks v. Bd. of Health of Town of W. Hoboken

• Decision Date: 05 March 1912
• Citation: 82 A. 528,82 N.J.L. 200
• Parties: FREDERICKS v. BOARD OF HEALTH OF TOWN OF WEST HOBOKEN.
• Court: New Jersey Supreme Court

82 A. 528

82 N.J.L. 200

FREDERICKS

v. BOARD OF HEALTH OF TOWN OF WEST HOBOKEN.

Supreme Court of New Jersey.

March 5, 1912.

Appeal from District Court of Hoboken. Action by Frank H. Fredericks against the Board of Health of the Town of West Ho boken. From a judgment for plaintiff, defendant appeals. Reversed.

By section 31 of the Board of Health Act of 1887 (P. L. p. 94), the board of health of the town of West Hoboken was required to appoint an Inspector whose general duties are outlined in section 5 of the act. On March 28, 1910, Frank H. Fredericks was appointed sanitary inspector for the term of three years at a salary of $1,500 a year, which was paid to him up to January 31, 1911. On January 30, 1911, the board resolved that the salary of sanitary inspector be fixed at $1,000 a year. Fredericks, having served as inspector during the months of February, March, and April, brought an action for three months salary at $125 a month, and recovered a judgment therefor in the Hoboken district court upon the determination of the judge who heard the case without a jury that "there existed upon his acceptance a contractual relation that cannot subsequently be vitiated by the conduct of one of the parties."

From this judgment the board of health has appealed, specifying as grounds for reversal that the court was in error in finding that there existed a contractual relation between the plaintiff and defendant, and because the court determined that the resolution of January, 1910, was inoperative to reduce the plaintiff's salary.

Argued November term, 1911, before GARRISON, PARKER, and BERGEN, JJ.

Randolph Perkins, for appellant .

John J. Fallon, for appellee.

GARRISON, J. (after stating the facts as above). If the appellee held an office, the district court erred in deciding that his acceptance thereof established a contractual relation. Hoboken v. Gear, 27 N. J. Law, 265.

The first question, therefore, is whether or not the inspector appointed by a local board of health is the incumbent of an office. The courts of this state have frequently been called upon to decide what an office was, and to distinguish "an office" from "a position," as well as from a mere employment. From these decisions the following definition of an office may be deduced:

An office is a place in a governmental system created or recognized by the law of the state which either directly or by delegated authority assigns to the incumbent thereof the continuous performance of certain permanent public duties.

Illustrations are:

The keeper of the common jail. Bownes v. Meehan, 45 N. J. Law, 189.

County collector. Smith v. Regan, 54 N. J. Law, 167, 23 Atl. 1012.

Superintendent of buildings. Townsend v. Boughner, 55 N. J. Law, 380, 26 Atl. 808.

Receiver of taxes. Uffert v. Vogt, 65 N. J. Law, 377, 47 Atl. 225.

But not a clerk in a city department. Me-Avoy v. Trenton, 80 Atl. 950.

A position is analogous to an office, in that the duties that pertain to it are permanent and certain, but it differs from an office, in that its duties may be nongovernmental, and not assigned to it by any public law of the state.

Illustrations:

A bridge tender. Lewis v. Jersey City, 51 N. J. 'Law, 240, 17 Atl. 112.

A guard in county jail. Cavenaugh v. Essex, 58 N. J. Law, 532, 33 Atl. 943.

A janitor of a courthouse. Daily v. Essex, 58 N. J. Law, 319, 33 Atl. 739; Peterson v. Salem, 63 N. J. Law, 59, 42 Atl. 844.

A deputy warden of an almshouse. Stewart v. Hudson, 61 N. J. Law, 117, 38 Atl. 842.

A keeper of a reservoir. Hardy v. Orange, 61 N. J. Law, 620, 42 Atl. 581.

A janitor of a police station. Dolan v. Orange, 70 N. J. Law, 106, 56 Atl. 130.

An "office janitor" of a city hall. Hart v. Newark, 80 N. J. Law, 600, 77 Atl. 1086.

An employment differs from both an office and a position in that its duties, which are nongovernmental, are neither certain nor permanent. McLaughlin v. Jersey City, 51 N. J. Law, 240, 17 Atl. 112; Evans v. Hudson, 53 N. J. Law, 585, 22 Atl. 56; Kreigh v. Hudson, 62 N. J. Law, 178, 40 Atl. 625.

It is clear from the illustrations afforded by the cases cited and from the definitions derived from the decisions themselves that the appellee held either an office or a position, and it is equally clear that as between these two he held an office. Boards of health are governmental agencies by which the police law of the state is locally exerted. The inspectors appointed under these state laws perform therefore, public duties that are certain, continuous, and permanent and that are derived from and constitute a direct participation in a governmental system created or recognized by the law of the state. The place in question, therefore, fulfills all of the terms of the definition of an office, and is, as a glance at the illustrations will show, more closely assimilated to the examples of an office than to mere positions such as janitors, bridge tenders, and the like. The Illustration that most nearly fits a sanitary inspector is that of superintendent of buildings such as was dealt with in Townsend v. Boughner, 55 N. J. Law, 380, 26 Atl. 808. It is true that the distinction between an office and a position was not dealt with by Chief Justice Beasley in his opinion, but the action was quo warranto which applies only...