Mayor v. State

• Decision Date: 08 July 1895
• Citation: 58 N.J.L. 12,32 A. 384
• Parties: MAYOR, ETC., OF THE CITY OF NEWARK v. STATE ex rel. McDONALD.
• Court: New Jersey Supreme Court

32 A. 384

58 N.J.L. 12

MAYOR, ETC., OF THE CITY OF NEWARK

v. STATE ex rel. McDONALD.

Supreme Court of New Jersey.

July 8, 1895.

(Syllabus by the Court.)

An alternative writ of mandamus was filed on behalf of the relator, Frank N. McDonald, directed to the city of Newark, commanding the respondents to show cause why the common council should not cause the name of the relator to be entered on the pay roll of the officers and employes of the city of Newark from August 1, 1892, to August 18, 1894. and cause a warrant to be drawn upon the city treasurer in his favor for his salary during this period, at the rate of $110 per month. The writ set up that the relator had been elected to the office or position of clerk in the city treasurer's office on March 19, 1891, by the committee on finance of the common council, and qualified as such, and that the common council had removed his name from the pay roll. The answer to this writ admitted the appointment and removal, but set up that the relator was a mere clerk, and that he had no official character; that the term for which he was to hold his position was not fixed by law; that his place had been filled by the appointment of other persons, by whom the pay for such position had been received from the city; that during this period relator had been wholly occupied with his private business, wherein he had earned more than the amount of his salary as clerk. The replication set up that a writ of certiorari had removed the resolution removing the relator into the supreme court, where the resolution was set aside at February term, 1893; that the city, by a writ of error, removed the judgment of the supreme court to the court of errors, by which court the writ of error was dismissed at the March term, 1894; that a writ of mandamus was issued, by force of which the relator was reinstated October 15, 1894; that defendant tendered himself ready to perform all the duties of the position; and that the city knew of his claim to the right of possession of said office. To this replication there is a demurrer.

Argued February term, 1895, before the CHIEF JUSTICE, and DEPUE, GUMMERE, and REED, JJ.

J. E. Howell, for relator.

R. W. Riker and Sberrard Depue, for respondents.

REED, J. The relator was elected clerk in the city treasurer's office by the finance committee of the Newark common council, under the authority conferred upon such committee by section 17 of a supplement to the Newark charter. P1. Laws 1873, p. 322. This section provides that the committee on finance shall have power from time to time to employ such clerical help and assistance in the office of the comptroller, city treasurer, auditor of accounts, and city surveyor as may be necessary to secure a prompt and efficient performance of the duties imposed upon said officers, but the common council shall at all times, whenever they shall choose to exercise the same, have full control over such appointments. The alternative writ sets out that the common council, by resolution, discharged the relator from his position. It sets out that, upon certiorari bringing this resolution into this court, it was set aside. The adjudication thus referred to in the pleadings was made in the case of McDonald v. City of Newark, reported in 55 N. J. Law, 267, 26 Atl. 82. In the opinion delivered in that case it was held that, by the appointment made by force of the section above set out, the relator did not become an officer of the city of Newark. The use of the writ of certiorari was permitted in that case upon the sole ground that, inasmuch as he was not an officer, but was only an employe, of the city, he had no right to employ the writ of quo warranto to test the right of the incumbent to hold the place from which the relator had been discharged. The answer asserts that the relator had no official character, and this statement is not traversed. So it must be conceded that the pleadings conclusively exhibit that the relation existing between the city and the relator at the time of the discharge was that of master and servant. It follows, therefore, that the resolution of the common council must be regarded as an illegal discharge of a servant before the end of his period of service.

The relator asks for the mandatory writ of this court commanding the city to pay him his salary in full for the entire period of his disemployment I think that this use of this prerogative writ is novel, even in this state. We have allowed it to go to a disbursing officer of the county to pay the salary of a county officer. State v. County Collector of Middlesex, 41 N. J. Law, 232. Its use has also been permitted to compel boards of school trustees to deliver orders upon the township clerk to pay, out of moneys in his hands for that purpose, the salaries of school teachers. Apgar v. Trustees, 34 N. J. Law, 308. The writ in the lastmentioned case went upon the ground that the money...