Monte v. Milat, L--6320

• Decision Date: 08 January 1952
• Docket Number: No. L--6320,L--6320
• Citation: 85 A.2d 822,17 N.J.Super. 260
• Parties: MONTE v. MILAT.
• Court: New Jersey Superior Court

Page 260

17 N.J.Super. 260

85 A.2d 822

MONTE v. MILAT.

No. L--6320.

Superior Court of New Jersey Law Division.

Jan. 8, 1952.

Otmar J. Pellet, Hoboken, attorney for plaintiff.

Michael J. Milat, Hoboken, pro se (Samuel J. Davidson, Hoboken, of counsel).

PROCTOR, J.S.C.

The plaintiff seeks to have the defendant ousted from the office of Commissioner of the Housing Authority of the City of Hoboken and to have himself adjudged the legal holder thereof.

The facts disclose that, upon the establishment of the above authority on May 3, 1949, the defendant was appointed commissioner for a two-year term and, on April 17, 1951, he was reappointed by the Board of Commissionrs of the City of Hoboken for a term of five years to commence May 3, 1951, pursuant to L. 1950, c. 67, p. 121, § 3 (R.S. 55:14A--4, N.J.S.A.).

An election of a Board of Commissioners of the City of Hoboken, a second class city, was held on May 8, 1951. After the organization of the new board, defendant's reappointment by the preceding board was rescinded and the plaintiff was appointed in his stead as commissioner of the housing authority for a term of five years commencing June 5, 1951.

Plaintiff contends defendant's appointment on April 17, 1951, effective May 3, 1951, was invalid as it was made within the time prohibited by R.S. 40:73--5, N.J.S.A., which provides: 'No subordinate board, department, body, office, position or employment shall be created and no appointments made to membership on any subordinate board, department or body, or to any office, employment or position * * * by any board of commissioners or any member thereof in any city of the second class governed by the commission form of government hereunder, between the first Tuesday in May and the third Tuesday in May in any year in which an election of a board of commissioners for that city shall be held.' It is apparent that the effective date of the appointment fell within the prohibited time, and plaintiff's contention is well taken if the office involved is governed by the above statute. Cf. Pashman v. Friedbauer, 4 N.J.Super. 123, 127, 66 A.2d 568, (App.Div. 1949). Defendant contends that the office in question is not controlled by this statute in that the housing authority is not a 'subordinate board, department or body' in the City of Hoboken.

In order to determine whether there is any merit to defendant's contention it would be well to inquire into the origin of the Local Housing Authorities Law. The United States Housing Act of 1937 (42 U.S.C.A. § 1401 et seq.) pledged government funds and credit to assist the states and the subdivisions thereof to remedy unsafe and insanitary housing conditions and to supply decent, safe and sanitary dwellings for families of low income. In order to obtain the benefits of the federal act, the Local Housing Authorities Law, L. 1938, c. 19, p. 65 (R.S. 55:14A--1 et seq., N.J.S.A.) was enacted, and it was under this law, as amended, that the Housing Authority of the City of Hoboken was established in 1949.

The Local Housing Authorities Law declares that the providing of safe and sanitary dwelling accommodations for persons of low income is a governmental function of state concern. R.S. 55:14A--2, N.J.S.A. Capital funds for the construction of such accommodations are obtained by each authority from the issuance of bonds payable solely out of the funds or property of the authority. R.S. 55:14A--12, N.J.S.A. Property of the housing authority is exempt from all taxes and special assessments of the State or any political subdivision thereof. R.S. 55:14A--20, N.J.S.A. Each housing authority is a public body corporate and politic and has the power to sue and be sued, to have perpetual succession, to make contracts and other instruments, to make by-laws, rules and regulations (R.S. 55:14A--7, N.J.S.A.); to exercise the right of eminent domain (R.S. 55:14A--10, N.J.S.A.); to agree to make payments in lieu of taxes to the municipality or county, the State or any political subdivision thereof (R.S. 55:14A--20, N.J.S.A.; R.S. 55:14A--27, N.J.S.A.). The authority consists of six commissioners, five of whom are appointed by the governing body of the municipality, the sixth by the Director of the Public Housing and Development Authority of the State Department of Conservation and Economic Development. R.S. 55:14A--4, N.J.S.A. Not more than one of these commissioners may be an officer or employee of the municipality. R.S. 55:14A--6, N.J.S.A.

Because the Local Housing Authorities Law declares (R.S. 55:14A--4, N.J.S.A.) '* * * Such authority shall constitute an agency and instrumentality of the municipality or county creating it. * * *'. plaintiff argues that this conclusively establishes that the Housing Authority of the City of Hoboken is a subordinate board, department, body, office, position or employment within the provisions of R.S. 40:73--5, N.J.S.A., supra. In support of this argument he cites Stark v. Fell, 124 N.J.L. 475, 12 A.2d 706 (Sup.Ct. 1940), Hirsch v. Burk, 83 N.J.L. 146, 83 A. 979 (Sup.Ct. 1912) and Trustees of the Free Public Library of Newark v. Civil Service Commission, 83 N.J.L. 196, 83 A. 980 (Sup.Ct. 1912).

The term Agency, as applied to the law of contracts, has a definite meaning but it is a broad term, often applied to relationships which do not in law amount to an agency. For example, a dealer in automobiles is often referred to as an 'agency' of the manufacturer. Cf. Westerdale v. Kaiser-Frazer Corp., 6 N.J. 571, 80 A.2d 91 (1951). The fact that a housing authority can be created only by and with the consent of the governing body of a municipality and that the power of appointment and removal of its members is lodged with the municipality is indicative of the close relationship between the authority and the city, the latter naturally being interested in the result to be accomplished. But all that is entrusted to the municipality is the creation of the authority, not the delegation of its powers. The powers of the authority are derived, not from the municipality, but from the State, and the governing body of the municipality in deciding upon the desirability of creating an authority and in exercising the power of appointment and removal of its members is acting merely as a statutory agent. See Riley v. City of Trenton, 51 N.J.L. 498, 18 A. 116, 5 L.R.A. 352 (Sup.Ct. 1889); Schwarz v. Dover, 70 N.J.L. 502, 505, 57 A. 394 (Sup.Ct. 1904).

The Legislature, in granting each authority the power 'to make and from time to time amend and repeal by-laws, rules and regulations, not inconsistent with this chapter,' in limiting the municipality's representation on the authority to not more than one officer or employee, in granting the authority the right to contract with the municipality to make payments in lieu of taxes, manifested an intention to maintain housing authorities as separate corporate entities. A complete consideration of the powers granted to housing authorities indicates that the Legislature used this phrase, 'agency and instrumentality of the municipality,' not because of an intention to make the housing authority a subordinate branch of the governing body of the municipality, but in order to express in forceful language its justification for granting to these authorities governmental powers, such as condemnation, and governmental privileges, such as tax exemption. It would be giving these words, 'agency and instrumentality,' an entirely disproportionate importance to hold that, standing alone as they do, they are sufficient to make housing authorities municipal agents. It is an established rule in the exposition of statutes that the intention of the Legislature is to be derived from a view of the whole and of every...