Maxwell v. Bd. of Com'rs of City of Wildwood

• Decision Date: 17 August 1933
• Docket Number: No. 240.,240.
• Citation: 168 A. 143
• Parties: MAXWELL v. BOARD OF COM'RS OF CITY OF WILDWOOD.
• Court: New Jersey Supreme Court

168 A. 143

MAXWELL

v. BOARD OF COM'RS OF CITY OF WILDWOOD.

No. 240.

Supreme Court of New Jersey.

Aug. 17, 1933.

Certiorari proceeding by Bernard W. Maxwell against the Board of Commissioners of the City of Wildwood, in Cape May County.

Certiorari allowed.

Argued October term, 1932, before PARKER, LLOYD, and HEHER, JJ.

Charles E. McCraith, Jr., of Newark, for prosecutor.

Harry Tenenbaum, of Wildwood (Carl Kisselman, of Camden, of counsel), for respondent.

HEHER, Justice.

On June 1, 1925, prosecutor was appointed, by resolution of the governing body of the city of Wildwood, relief caretaker of fire houses for a term of seven months. He functioned in this position, without formal reappointment, until May 15, 1928, when, by resolution of the governing body, he was appointed relief caretaker and fire escape inspector, without fixed term. He served in that capacity until June 7, 1932, when the respondent body, by resolution, appointed one Moore "Relief Caretaker of Fire Houses, at an annual salary of $500." The prosecutor's annual salary at the time of the adoption of this resolution was $1,620. On May 24, 1932, respondent, by resolution, appointed one Orsini building inspector of the municipality, at an annual salary of $1,000, and assigned to him the "duties of Fire Escape Inspector."

The prosecutor served in the United States Army during the World War, and was honorably discharged, and is also an exempt fireman. He attacks the municipal action represented by the resolution appointing Moore as relief caretaker of fire houses as in contravention of Chapter 14 of the Laws of 1907 (P. L. 1907, p. 37, 4 Comp. St. 1910, p. 4873, § 63 [as amended Comp. St. Supp. § 191—63] and page 4874, §§ 64, 65) and chapter 212 of the Laws of 1911 (P. L. 1911, p. 444, Comp. St. Supp. § *136—1721C(1) et seq.). No charges were preferred against the prosecutor, and he was not accorded the hearing required by these statutes in the event that removal or dismissal from an office or position is sought. It is stipulated that he was not removed for cause; that he was "dismissed in the interest of municipal economy"; that the resolution under attack "did not abolish the office of Relief Caretaker, but its effect was to dismiss prosecutor from the Fire Department"; and that the governing body acted in good faith in the adoption of the resolution, and was not influenced by political motives. Respondent argues that the statutes invoked by prosecutor do not apply for two reasons, viz.: (1) The prosecutor held his position for a term fixed by law; and (2) the municipal action complained of effected a substantial annual saving, and was a bona fide effort to promote the public interest.

As to the first point, the contention seems to be that the prosecutor was appointed for a term coextensive with that of the governing body. The city of Wildwood is a commission governed municipality. P. L. 1911, c. 221, p. 462 (as amended Comp. St. Supp. § **136—1 et seq.). On the day of prosecutor's appointment, but prior thereto, the board of commissioners adopted a resolution providing that "all employees in the several departments of the City, either elective or appointive, shall continue to hold their respective positions until they are either elected or appointed or until their successors are qualified."

It is argued that prosecutor was appointed for a term fixed by law, i. e., "a term coextensive with that of the creating board," and McGrath v. Bayonne, 85 N. J. Law, 188, 89 A. 48, and Woolley v. Flock, 92 N. J. Law. 65, 105 A. 489, are cited. But neither case supports this contention. I(n McGrath v Bayonne, the resolution appointing an assistant building inspector fixed the term at one year, and Chief Justice Gummere held that (page 192 of 85 N. J. Law, 89 A. 48, 50) "an office or position which is created by municipal ordinance or resolution adopted pursuant to power conferred by the Legislature upon the governing body for that purpose is just as much created by law, and its term, when fixed by such ordinance or resolution, is just as much fixed by law, as if the legislature itself had acted in the premises." In Woolley v. Flock, the controversy related to the term of office of the "'presiding officer of the board of commissioners,' and as such 'mayor' and 'director of the department of public affairs'" of commissioned governed cities. Mr. Justice Trenehard ruled that such officer "holds for a term of four years, and not merely at the will of the board of commissioners."

But there is no analogy between that and the instant case. Justice Trenehard rested his conclusions upon statutory provisions which are not applicable to the position held by prosecutor. He said: "It is of controlling significance that, when so elected, the statute requires that they [board of commissioners] shall 'at the first meeting after their election, * * * choose one of their number to preside.' * * * This function of choice they are permitted to discharge but once, and the choice must be made immediately after all have been elected for a period of four years (it being otherwise with respect to subordinate boards or appointees)."

Chapter 275 of the Laws of 1915 (P. L. 1915, p. 494, as amended by P. L. 19:10, p. 996 [Comp. St. Supp. § **136—8]) provides that "any board created [by the board of commissioners] may be abated; or any officer or employee appointed by the board of commissioners may be removed from office by them, at any time for cause, after public hearing, provided their action shall be taken in accordance with the Civil Service and Tenure of Office acts in municipalities where such acts have been adopted, and such action shall be subject to review by the courts as heretofore." In the instant case the resolution appointing prosecutor did not fix the term. Assuming,...