Hewitt v. Mayor

• Decision Date: 10 December 1945
• Docket Number: No. 246.,246.
• Citation: 44 A.2d 782,133 N.J.L. 467
• Parties: HEWITT v. MAYOR AND BOROUGH COUNCIL OF SEASIDE PARK, COUNTY OF OCEAN.
• Court: New Jersey Supreme Court

133 N.J.L. 467

44 A.2d 782

HEWITT

v.MAYOR AND BOROUGH COUNCIL OF SEASIDE PARK, COUNTY OF OCEAN.

No. 246.

Supreme Court of New Jersey.

Dec. 10, 1945.

Certiorari proceeding by Frank Hewitt against Mayor and Borough Council of the Borough of Seaside Park, in the County of Ocean, to set aside an ordinance of the Borough relating to the prosecutor in his capacity as collector and ex officio treasurer of the borough.

Ordinance set aside in part.

October term 1945, before CASE, BODINE, and PERSKIE, JJ.

Wilfred B. Wolcott, of Camden, for prosecutor.

Percy Camp, of Toms River, for respondent.

CASE, Justice.

The writ challenges an ordinance of the Borough of Seaside Park which relates to the prosecutor in his position as collector-and ex officio as treasurer-of the borough. The disputed provisions establish the location of the office of the collector-treasurer in the borough hall; require his attendance there between named hours on each day of each week, excluding Sundays and legal holidays; require daily deposit of his receipts in the official depositary of the funds of the municipality; and permit him to employ a clerk or clerks at his expense and liability to act in lieu of his personal performance of his duties, provided said clerk or clerks be bonded upon bonds approved by and held by the borough but paid for by him.

The ordinance was inspired chiefly by the fact that the named officer has several private business enterprises, namely, a real estate agency, an insurance agency, an ice business and an express delivery service, all of which he conducts at the place of business where he holds forth as borough collector and treasurer. The borough has a public building known as the Borough Hall, a municipal building in which all municipal offices, except that of the collector of taxes and the treasurer, were already located. The borough collector holds an elective office, R.S. 40:87-1, N.J.S.A., and under statutory direction, R.S. 40:87-46, N.J.S.A., becomes the borough treasurer. The question which the parties particularly desire to have answered is whether the borough council may, by ordinance, require the tax collector's office to be located in the municipal building and the business of the office to be transacted there.

We answer that principal question in the affirmative. Although the tax collector holds an elective office and his duties are in the main defined by statute, he is nevertheless a borough officer engaged in performing an important branch of the borough's business, a division of the public enterprise that is closely integrated with and in some named respects placed under the direction of the borough council. The collector is required by statute, R.S. 40:87-47, N.J.S.A., to furnish to the council a report of his year's work within sixty days after the end of the fiscal year or when otherwise required by the council; in addition he is required by statute, R.S. 40:87-48, to make further and ad interim accounting when requested by the council of his receipts and disbursements and to deposit in...