Smith v. Borough of Matawan
| Decision Date | 06 June 1941 |
| Docket Number | No. 224.,224. |
| Citation | 126 N.J.L. 585,20 A.2d 516 |
| Parties | SMITH v. BOROUGH OF MATAWAN. |
| Court | New Jersey Supreme Court |
Certiorari proceeding by Charles E. Smith against Borough of Matawan to review the alleged dismissal of the prosecutor as superintendent and engineer of the Waterworks and Sewer Department of the Borough of Matawan.
Writ dismissed.
Argued January term, 1941, before CASE, DONGES, and HEHER, JJ.
Quinn & Doremus, of Red Bank, for prosecutor.
Edward W. Currie, of Matawan, for defendant.
This writ brings up the alleged dismissal of the prosecutor as Superintendent and Engineer of the Waterworks and Sewer Department of the Borough of Matawan.
The essential facts are not in dispute and appear to be that prosecutor was first appointed on January 12, 1926, and was reappointed annually thereafter down to and including January 2, 1939. In 1940, he was not re-appointed. Prosecutor claims that he was the holder of an office, as distinguished from a position or employment, and that as an exempt fireman he is entitled to tenure of office under Chapter 385, P.L.1938, R.S. 40:47-63, N.J.S.A. 40:47-63, which provides that an exempt fireman holding any office except one created by the constitution shall have tenure and be removable only after hearing upon charges. This act has been held unconstitutional in so far as it applies to positions, Joyce v. Price, 123 N.J.L. 171, 8 A.2d 226, and defendant contends that prosecutor was the holder of a position and not of an office. We find it unnecessary to determine this question.
It conclusively appears from the record before us that the appointments of the prosecutor, from 1926 to 1929, were for a fixed term of one year each. In three of those years, 1934, 1936, and 1937, prosecutor took an oath of office. Clearly he accepted an appointment for the term mentioned on each annual occasion. In this situation he may not claim any other status than the holder of an office for a fixed term and may not claim the protection of any statute to extend his term beyond the period for which he accepted it. He accepted his latest re-appointment after the adoption of the statute he relies upon. That statute was invoked in a claim of tenure in Ackley v. Norcross, 122 N.J.L. 569, 6 A.2d 721, 722, affirmed 124 N.J.L. 133, 11 A.2d 106, where it was said, "Relator having been appointed for a definite term and having accepted it, he is bound by that act, notwithstanding any tenure he may otherwise have."
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Smith v. Board of Chosen Freeholders of Bergen County
...an exempt fireman who had held the office continually for about 13 years under only one appointment. See also, Smith v. Matawan, 126 N.J.L. 585, 20 A.2d 516 (Sup.Ct.1941), aff'd 129 N.J.L. 100, 28 A.2d 119 (E. & A.1942), where an exempt fireman was denied tenure to a position to which he ha......
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Allgaier v. Woodbridge Tp.
...has been judicially determined that Section 40:47-63 does not apply to any office the term of which is fixed by law, Smith v. Borough of Matawan, 126 N.J.L. 585, 20 A.2d 516, affirmed 129 N.J.L. 100, 28 A.2d 119. In the case of Greenfield v. Passaic Valley Sewerage Commissioners, supra, the......
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Woodbridge Tp. v. Civil Serv. Comm'n
...not claim the protection of any statute to extend his term beyond the period for which he accepted it’. Smith v. Borough of Matawan, 126 N.J.L. 585 (Sup.Ct.1941) at page 586, 20 A.2d 516, affd. 129 N.J.L. 100, 28 A.2d 119 (E. & A. 1942). Cf. Browne v. Hagen, 91 N.J.L. 544, 104 A. 207 (E. & ......