McGrath v. Mayor and Council of City of Bayonne
| Decision Date | 04 December 1913 |
| Citation | 89 A. 48,85 N.J.L. 188 |
| Parties | MCGRATH v. MAYOR AND COUNCIL OF CITY OF BAYONNE. |
| Court | New Jersey Supreme Court |
Error to Supreme. Court.
Certiorari by Thomas J. McGrath against the Mayor and Council of the City of Bayonne. There was a judgment of the Supreme Court (83 N.J.Law, 224, 83 Atl. 780) annulling a resolution adopted by the Board of Councilmen of Bayonne, and they bring error. Reversed.
Daniel J. Murray, of Bayonne, and Warren Dixon, of Jersey City, for plaintiffs in error. Benny & Cruden, of Bayonne, for defendant in error.
On January 1, 1908, the board of councilmen of the city of Bayonne adopted a resolution providing "that Thomas Noolan be and he is hereby appointed and elected assistant building inspector, which office is hereby created for the term of one year, at a salary of $1,000, and that the salary be paid from the building Inspectors' fund." Noolan served as assistant building inspector from the date of his appointment until March 1, 1910, holding over beyond the expiration of his term with the apparent acquiescence of council. On the day last named council adopted a resolution reading as follows: "Resolved that Thomas McGrath be and is hereby appointed and elected assistant building inspector in place of Thomas Noolan for the term ending December 31, 1910, at the salary of $1,000 per annum, said term to begin on the adoption of this resolution"—and pursuant thereto McGrath became assistant building inspector, and served as such without further action on the part of council until January 1, 1912, when the following resolution was passed: "Resolved that William Dwyer be and he is hereby appointed and elected assistant building inspector for the term of one year at a salary of $1,000 per annum." Upon the adoption of this last resolution, and under its provisions, Dwyer assumed the position of assistant building inspector of the municipality. Thereupon McGrath sued out a writ of certiorari, attacking the validity of this action of council upon the ground that he was an exempt fireman of the city of Bayonne, holding an exemption certificate regularly issued to him, and that the effect of the resolution was to remove him from the office or position of assistant building inspector without cause, and without a hearing, in violation of section 1 of an act regarding exempt firemen of volunteer fire departments, approved April 24, 1911. Pamph. Laws, p. 444. The section appealed to provides that: "No person now holding a position or office under the government of this state, or the government of any county, city, town, township or other municipality of this state, or who may hereafter be appointed to any such position, whose term of office is not now fixed by law, and receiving a salary from such state, county, city, town, township or other municipality, who is an exempt fireman of any volunteer fire department, * * * holding an exemption certificate issued to him as such exempt member of any such volunteer fire department * * * shall be removed from such position or office except for good cause shown after a fair and impartial hearing, but such exempt fireman shall hold his position or office during good behavior and shall not be removed for political reasons." The status of McGrath as an exempt fireman was not controverted, nor was the fact that the resolution under review was adopted without any charges having been made against him, and without a hearing afforded him. Upon the return of the writ, and after full argument, the Supreme Court held that the resolution was in contravention of the statutory provision appealed to, and for this reason set it aside. The judgment of the Supreme Court is now before us for review.
It will be observed that the first section of the act of 1911 protects an exempt volunteer fireman who holds either a position or an office under the government of the state, or under the government of one of the municipalities thereof, the term of which was not fixed by law at the date of the enactment of the statute; and the first contention made before us on behalf of the defendant municipality, and also urged before the Supreme Court, is that the assistant inspectorship of buildings of Bayonne is an office within the meaning of this statute, as distinguished from a position, and that consequently the right of the incumbent to hold it can only be contested by quo warranto proceedings—in other words, that the prosecutor below had mistaken his remedy—and that for this reason the certiorari should have been dismissed. The assistant inspectorship was created by the above-recited resolution of...
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