Murphy v. Bd. of Chosen Freeholders of Hudson County

• Decision Date: 17 June 1918
• Docket Number: No. 61.,61.
• Citation: 104 A. 304
• Parties: MURPHY v. BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY.
• Court: New Jersey Supreme Court

104 A. 304

MURPHY

v. BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY.

No. 61.

Court of Errors and Appeals of New Jersey.

June 17, 1918.

(Syllabus by the Court.)

Appeal from Supreme Court.

Certiorari by James J. Murphy against the Board of Chosen Freeholders of the County of Hudson. From a dismissal of the writ (102 Atl. 896), the prosecutor appeals. Reversed.

Gilbert Collins, of Jersey City, for appellant. John J. Fallon, of Hoboken, for appellee.

BLACK, J. The board of chosen freeholders of Hudson county on the 7th day of January, 1918, by a resolution dismissed James J. Murphy, the prosecutor, as county counsel. The legality of this resolution is drawn in question by the certiorari issued out of the Supreme Court. The Supreme Court dismissed the writ of certiorari. The prosecutor appeals to this court to review that judgment.

The resolution is in these words:

"Resolved that the services 'of James J. Murphy as county counsel be dispensed with from and after the passage of this resolution; and he is hereby relieved of further duties. Be it further resolved, that he be and he is hereby dismissed and deposed as such."

The record reveals these pertinent facts: Mr. Murphy was in the occupation or possession of the office of county counsel, under previous appointments, when on December 4, 1916, he was reappointed by the board, as then constituted, under the Act of P. L. 1900, p. 168, for the term prescribed by law, which under paragraph 11 was for a term of two years. He filed a bond as required by law. On January 7, 1918, at 11 o'clock in the morning of that day, he took, subscribed, and filed an official oath, as county counsel, as required by the act of Legislature, P. L. 1906, p. 13, c. 3. He did not file such oath before the commencement of his term of office. December 4, 1916. The resolution of dismissal was adopted some time after, but on the same day that the official oath was filed, without notice to or an opportunity by Mr. Murphy to be heard, and so far as the record discloses without cause, six members of the board who were in office when the prosecutor was appointed had retired, and six others, elected in their stead, participated in the meeting, at which the resolution of dismissal was adopted on January 7, 1918. There is no statute of this state authorizing a removal of an officer, whose term of office is fixed by law, by the board of chosen freeholders; although by the Act P. L. 1885, p. 135, 1 Comp. Sts. p. 504, par. 109, the board has power to remove from office any person who holds office, in subordination to or by appointment from such board, in all cases where the term of such office is not fixed by a statute of this state. But this statute is subject to the provisions of the Civil Service Act, 3 Comp. Sts. of N. J. p. 3795, § 57, P. L. 1908, p. 235, which was adopted by the county of Hudson on November 7, 1911.

At the outset a preliminary question is raised and argued, viz. whether a writ of certiorari is the proper remedy for the prosecutor to pursue. Our answer to this question is that it is the settled law and practice of the state to issue the writ of certiorari to review proceedings of this nature. In an opinion by Mr. Justice Parker, in the well-considered case of Moore v. Borough Bradley Beach, 87 N. J. Law, 291, 94 Atl. 316, following and approving Bradshaw v. City Counsel of Camden, 39 N. J. Law, 416, it was said that a public officer in possession of his office may maintain certiorari to remove from his way a proceeding, which he apprehends may be used unlawfully, to eject him or disturb him in the tenure of his office.

This brings us to the meritorious question involved in this case, which is: Can a county counsel, whose term of office is fixed by law, be removed from office by a board of chosen freeholders in this state, in the absence of a statute authorizing such removal? Our answer to this question must be no, both on principle and authority. It is a well-established principle in the law of municipal corporations that they have only such powers of government as are expressly granted to them, or such as are necessary to carry into effect those that are granted. No powers can be implied, except such as are essential to the objects and purposes of the corporation, as created and established. Ottawa v. Carey 108 U. S. 121, 2 Sup. Ct. 361, 27 L. Ed. 669.

A power to remove officers having a fixed term is not incident to the power of appointment. People v. Healy, 231 Ill. 629, 83 N. E. 453. A power of removal is an incident to the power of appointment, only to those cases, where the officer is held at the pleasure of the appointing power. Collins v. Tracy, 36 Tex. 546. No such power of removal exists unless expressly given by the Legislature. Danforth v. Kuehn, 34 Wis. 229, 233. Removal of an officer of a municipal corporation appointed for a fixed term can be exercised legally...