Bell v. City of Atlantic

99 A. 127, 89 N.J.L. 443, 4 Gummere 443, 1916 N.J. Sup. Ct. LEXIS 21

• Court: Supreme Court of New Jersey
• Decided: November 10, 1916
• Status: Published

Opinion

The opinion of the court was delivered by

Minturn, J.

The writ of certiorari in this case brings up for review a resolution passed by the commissioners of Atlantic City removing the prosecutor from the office of city clerk and appointing another in his place. The contention of the prosecutor against the validity of this action is based upon the fact that he is an honorably-discharged veteran of the Spanish-American war, and as such is entitled under the Veteran act (Pamph. L. 1907, p. 37) to serve in the position from which he was removed until, in the language of the act, he shall be removed “for good cause shown after a fair and impartial hearing.” That act, however, contains a qualifying feature which presents the real inquiry upon this writ, i. e., the veteran who may claim the benefit of its provisions must be the occupant of an office or position “whose term of office is not now fixed by law.”

It is important to inquire, therefore^ whether at the time of the enactment of the legislation invoked the term of office of the city clerk was fixed by law, for obviously if it was, the prosecutor does not bring himself within the terms of the act. The city is governed by the provisions of “An act relating .to, regulating and providing for the government of cities,” approved April 3d, 1902. Pamph. L., p. 284. The second section of the act provides for the appointment of a city clerk and fixes his term of office at three years.

Subsequent legislation applicable to the city enabled the commissioners to appoint a city clerk “for such-term as they may fix.” Pamph. L. 1911, p. 462; Pamph. L. 1912, p. 643. The commissioners, on July 16thi, 1912, adopted a resolution providing for the appointment of a city clerk for the term of one year, and fixing his salary. At a meeting, held on July 30th, 1912, the prosecutor was appointed to the office and the salarjr by another resolution was increased. No change was made in the office until May 16th, 1916, when another resolution was passed providing for the election of a city clerk and iking his salary.

At that meeting a successor to the prosecutor was appointed.

We think that this legislation, and the municipal action taken thereunder, created an. office with a iked term, and that the prosecutor cannot invoke the Veteran act to maintain his tenure. Gilhooly v. Freeholders, 43 Atl. Rep. 569.

The legislation referred to manifestly was intended to enable the commissioners to fix the term of office, and the resolutions adopted by the commissioners in pursuance thereof leave no doubt that they availed themselves of the power so conferred.

The act of 1903 fixed the term at three years, and the only change worked by the subsequent legislation was to leave the duration of the term optional with the commissioners, and in either event the term of office was fixed.

If it he contended that the latter legislation was subject to the provisions of the Veteran act, upon the theory that such was the legislative intent, the answer is that the Veteran act expresses its own limitation, and applies only to offices whose terms were not fixed by law at the time of the passage and approval of the act.

The passage of the resolution creating the office and fixing the term of city clerk was tantamount to a law, .and, obviously, was operative as such within the municipality. Hardy v. Orange, 61 N. J. L. 620.

In any event, we cannot give to the act in question, in the absence of a clear legislative intent to that end, a construction which in effect would annul the power vested in the commissioners by the acts under which they are constituted and which contemplate the appointment of officials for fixed terms.

The case of Stewart v. Freeholders, 61 N. J. L. 117, is not analogous. There the prosecutor held a position only, and it was held that such a place did not come within the language of a statute, which fixed the terms of officers only. Here the commissioners had the undoubted power to fix the term of the office in question.

The result is that the resolution under review will be affirmed.