Wilson v. Dist. Court of First Judicial Dist. of Monmouth County

• Citation: 107 A. 589
• Parties: WILSON v. DISTRICT COURT OF FIRST JUDICIAL DIST. OF MONMOUTH COUNTY et al.
• Decision Date: 03 July 1919
• Court: United States State Supreme Court (New Jersey)

107 A. 589

WILSON

v. DISTRICT COURT OF FIRST JUDICIAL DIST. OF MONMOUTH COUNTY et al.

Supreme Court of New Jersey.

July 3, 1919.

Syllabus by the Court.

Certiorari proceedings by Harry M. Wilson against the District Court of the First Judicial District of the County of Monmouth and others. Proceedings vacated.

Argued February term, 1919, before PARKER and MINTURN, JJ.

Ward Kremer and Charles E. Cook, both of Asbury Park, for prosecutor.

Lloyd O. Riddle and Halstead M. Wainright, both of Manasquan, for defendants.

MINTURN, J. Prosecutor was appointed clerk of the district court of the First Judicial district of Monmouth county by Judge Walter Taylor on August 1, 1916, and duly qualified as such, and thereafter discharged the duties of the office, and is still discharging them. The present Judge Benjamin B. Smith assumed office on March 1, 1918, and on September 19th of that year by letter discharged the prosecutor, and appointed his successor. Meanwhile the prosecutor entered upon an examination conducted by the state civil service board for the position of clerk of the district court, and was duly notified by that board that he had qualified for the office. In this situation the question as to the power of the judge to remove him is presented by this writ. His contention is threefold: (1) That he holds a certificate as a veteran fireman; (21 that he holds a certificate as an honorably discharged veteran of the Spanish-American War; (3) that his position is under the jurisdiction of the civil service board—upon all or any of which grounds he cannot be removed in the absence of charges duly preferred against him and a hearing. We think the writ of certiorari is properly applicable to such a situation. Murphy v. Freeholders, 104 Atl. 304.

The authority for the appointment of a clerk is contained in the District Court Act, § 7 (2 Comp. St. 1910, p. 1955), viz.:

"The clerks of each district court shall be appointed by the judge thereof, and shall hold office during the pleasure of the judge or until the appointment and qualification of his successor."

The inquiry resulting from this legal situation is whether the status of the prosecutor is that of one holding for a fixed and determinate term of office, or of one whose term is indeterminate and not fixed by law. If it be the latter, the difficulty of a summary removal of the prosecutor in the manner proposed is manifest. Browne v. Hogan, 91 N. J. Law, 544,104 Atl. 207; Bell v. Atlantic City, 89 N. J. Law, 443, 99 Atl. 127; McKenzie v. Elliott, 77 N. J. Law, 43, 72 Atl. 47.

In Townsend v. Boughner, 55 N. J. Law, 380, 26 Atl. 808, the prosecutor occupied the position of building inspector of Newark. The charter of that city provided that persons appointed under its provisions "shall continue in office until the office for which he shall be appointed shall be declared vacant, or until another person shall be appointed to succeed him, and shall enter upon the duties of his office." This language was held by Chief Justice Beasley to confer a tenure of office at the will of the appointing power, and he therein employs this definitive language to characterize such a tenure:

"In case of an office held during the pleasure of another, the official term—that is, the continuance of the incumbency—is uncertain and unfixed until the mandate of removal has been issued."

The cases are unanimous in supporting this test. Gibbs v. Morgan, 39 N. J. Eq. 126; State, Cavanagh, v. Freeholders, 58 N. J. Law, 531, 33 Atl. 943; Smith v. Regan, 54 N. J. Law, 171, 23 Atl. 1012; Garey v. Riddle, 84 N. J. Law, 80, 86 Atl. 532; Bell v. Atlantic City, 89 N. J. Law, 443, 99 Atl. 127.

The cases upon which reliance is placed to establish that the office sub judice is held under a fixed tenure do not...