Gallaher v. Camden County

• Decision Date: 30 December 1942
• Docket Number: No. 252.,252.
• Citation: 129 N.J.L. 290,29 A.2d 406
• Parties: GALLAHER v. CAMDEN COUNTY et al.
• Court: New Jersey Supreme Court

29 A.2d 406

129 N.J.L. 290

GALLAHER

v. CAMDEN COUNTY et al.

No. 252.

Supreme Court of New Jersey.

Dec. 30, 1942.

Certiorari proceeding by Vincent L. Gallaher against the County of Camden, New Jersey, and others to review two resolutions adopted by the Board of Chosen Freeholders of the County of Camden on March 4, 1942.

Resolutions set aside.

Before BROGAN, C. J., and PARKER and PORTER, JJ.

Bartholomew A. Sheehan, of Camden, for prosecutor.

Benjamin F. Friedman, of Camden, for respondent, County of Camden.

George Farrell, Jr., Charles A. Burkett, Gordon R. Garvey, Edward J. Quinlan, and Benjamin F. Friedman, George D. Rothermel, of Camden, for respondents.

PORTER, Justice.

This writ of certiorari brings before us for review two resolutions adopted by the Board of Chosen Freeholders of the County of Camden on March 4th, 1942. One of the resolutions removed the prosecutor, Vincent L. Gallaher, from the position of county counsel and the other resolution appointed Benjamin F. Friedman, one of the respondents, to the position of county counsel for a term of three years from that date.

It appears that the Board of Chosen Freeholders at its organization meeting on January 1st, 1941, appointed Mr. Gallaher, county counsel for a term of one year, that at its organization meeting on January 1st, 1942, it reappointed him for a term of three years. The minutes of the Board show these appointments by the adoption of appropriate resolutions.

It is the contention of the prosecutor that under the provisions of N.J.S.A. 40 20-26 the terms of all offices to be filled by the board of chosen freeholders shall be for the term of three years and that his appointment on January 1st, 1942, for such a term was pursuant to that statute. He further contends that the Board had no power of removal during the term for which he had been appointed except for cause and that R.S. 40:21-4, N.J.S.A. 40:21-4, only gave power of removal where the term of office was not fixed by law.

The respondents make the point that the statute, R.S. 40:20-26, N.J.S.A. 40:20-26, supra, does not apply because the prosecutor was not appointed to an office but to a position or an employment the term of which was not fixed by law and so was subject to removal under R.S. 40:21-4, supra.

It is our view that the case turns on the question of whether or not the prosecutor held an office. In Fredericks v. Board of Health of West Hoboken, 82 N.J.L. 200, 82 A. 528, this Court defines an office as follows: "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." Compare McGrath v. Bayonne, 85 N.J.L. 188, 89 A. 48; Civil Service Commission v. Rife, 128 N.J.L. 503, 27 A.2d 214; Skladzien v. Board of Education of Bayonne, 173 A. 600, 12 N.J.Misc. 602. The County of Camden comes within the classification of counties of the second class.

We conclude that county counsels in all of the counties irrespective of classification are the holders of offices within the authority of the cited cases for reasons to be stated.

An examination of the statute law concerning county counsels discloses no specific provision, as far as we have been able to find, which creates the office of county counsel in any county regardless of its class. There are, however, statutory provisions which clearly recognize county counsels as the holders of an office. In counties of the first class the Board of Chosen Freeholders are authorized to appoint a county counsel, a county physician and a county engineer under N.J.S.A. 40: 21-59, and, by the next section, 40:21-60, a term of...