McGrath v. Mayor of Bayonne

83 A. 780, 83 N.J.L. 224, 1912 N.J. Sup. Ct. LEXIS 81

• Court: Supreme Court of New Jersey
• Decided: June 27, 1912
• Status: Published

Opinion

The opinion of the court was delivered by

Miííturn', J.

The prosecutor, who held the position of assistant building inspector in the city of Bayonne, was dismissed by the board of council without complaint or charges preferred against him. He contests the dismissal upon the ground that since he is an exempt fireman, holding a certificate evidencing that fact, he could be legally removed only for good cause and after an impartial hearing. In support of this contention we are referred to Pamph. L. 1911, p. 444, which in substance provides, inter alia, that no person holding a salaried position or office in any municipality of the state, who is an exempt fireman, holding an exempt fireman’s certificate, shall be removed from such position, ‘‘except for good cause shown after a fair and impartial hearing, but such exempt fireman shall hold his position or office during good behavior, and shall not be removed for political reasons.”

The prosecutor' is an exempt fireman and is in possession of the certificate of exemption required by this statute. He was appointed to the position of assistant building inspector by resolution of the council on March 1st, 1910, at a salary of $1,000 per annum, for the unexpired term of Thomas hTolan. He continued to serve until January 1st, 1912, when, without notice, William Dwyer was substituted, at the same salary, to fill the position.

The office of building inspector was created by an act of the legislature, passed in 1886 (Gen. Slat., p. 623), and, under the provisions of that act the mayor and council provided by ordinance for the appointment of a building inspector, but no provision was made, either in the statute or in the ordinance, for the appointment of an assistant building inspector’, the latter appointment being made presumably under the general power contained in the charter of Bayonne. Pamph. L. 1873, p. 465.

The distinction established by this court between an office and a position has been the subject of repeated adjudications, and we are of the opinion, in the light of these adjudications, and the testimony presented by this record, that the prosecutor was the occupant of a position and not of an office. Bownes v. Meehan, 16 Vroom 189; Stewart v. Freeholders, 32 Id. 117.

Such being the status of the prosecutor, certiorari and not quo warranto was the legal remedy for the assertion of his claim, and the prosecutor, therefore, is properly here upon this writ. Peterson v. Salem, 34 Vroom 57.

The final objection of moment is directed to the constitutionality of the act of 1911, as in contravention of article 4, section 7, paragraph 11, subdivision 7 of the state constitution, inhibiting the passage of local or special laws. The act is entitled “An act regarding exempt firemen of volunteer fire departments, volunteer fire engine, hook and ladder, hose or supply companies, or salvage corps, of the cities, towns, townships, boroughs and fire districts of this state.”

We consider the title of this act sufficiently indicative of the legislative intent to grant to the generality of exempt firemen the privilege accorded by the act. The fact that the body of the act requires such exempt firemen to hold an exemption certificate is a mere detail of procedure, which it is presumed exempt firemen, or those entitled to be so classed, can readily comply with. This general definition of the class to which the provisions of the act shall apply is sufficiently .comprehensive, under our adjudications, to include all exempt firemen who áre legally entitled to that appellation, and the act thereby fulfills the constitutional requirement. State v. Walter, 4 Vroom 350; Rader v. Township of Union, 10 Id. 509; Smith v. Willetts, 52 Id. 372.

We have examined the defendant’s remaining objections to this proceeding, and find them without substance.

The resolution in question will be set aside.