State v. Mayor

• Decision Date: 26 February 1901
• Parties: STATE (O'ROURKE et al., Prosecutors) v. MAYOR, ETC., OF CITY OF NEWARK et al.
• Court: New Jersey Supreme Court

48 A. 578

66 N.J.L. 109

STATE (O'ROURKE et al., Prosecutors)

v. MAYOR, ETC., OF CITY OF NEWARK et al.

Supreme Court of New Jersey.

Feb. 26, 1901.

(Syllabus by the Court.)

Application by the state, on the prosecution of John O'Rourke and William Reilly, against the mayor and common council of the city of Newark and others, to set aside a certain action of the common council declaring prosecutors' office vacant. Writ dismissed.

Argued February term, 1901 before VAN SYCKEL and FORT, JJ.

J. A. Beecher, for prosecutors.

McCarter & Adams, for defendants.

FORT J. The questions in this case are largely controlled by the decision in Peal v. Mayor, etc. (decided at the present term) 48 Atl. 576, the cases being argued together at the hearing. The prosecutors were each appointed by the common council of the city of Newark on April 13, 1900, by a resolution identical in language except as to the name, reading as follows: "Resolved, that John O'Rourke be, and he is hereby, appointed as sistant to the superintendent of buildings of the city of Newark for the period of two years from and after the first day of May. 1900, at the annual salary of ten hundred dollars per year, payable monthly." The position provided for and to which the prosecutors were appointed by the resolution was not created by ordinance, or in any other way than by the resolution of appointment itself. There was an office of "Assistant Superintendent of Buildings" provided for by the ordinance of June 29, 1896. but upon April 13, 1900, at the same meeting at which the prosecutors were appointed by the above resolution, the common council, as appears by the evidence, appointed George Thompson to that office. The resolution appoints each of the prosecutors as "an assistant to the superintendent of buildings for the period of two years from and after the first day of May, 1900." Under the decision of the court of errors in Hardy v. City of Orange, 61 N. J. Law, 620, 42 Atl. 581, it is the contention that, if the term of a person appointed to a position in a city is not fixed by law, the fixing of a term in the resolution making the appointment is good. Whether such a construction is to be given to that decision it will not be necessary for us to determine in this case, as we think the term of the prosecutor here was fixed by law. The power in the common council to appoint the prosecutors is founded upon the twenty-first section of the city charter; these appointments being made under the...