On rule to show cause why a writ of certiorari should not issue.
For the prosecutor, Charles E. McCraith, Jr.
For the respondent, Harry Tenenbaum (Carl Kisselman, of counsel).
Before Justices Parker, Lloyd and Heher.
The opinion of the court was delivered by
HEHER, J. On June 1st, 1925, prosecutor was appointed, by resolution of the governing body of the city of Wildwood, relief caretaker of fire houses for a term of seven months. He functioned in this position, without formal reappointment, until May 15th, 1928, when, by resolution of the governing body, he was appointed relief caretaker and fire escape inspector, without fixed term. He served in that capacity until June 7th, 1932, when the respondent body, by resolution, appointed one Moore "relief caretaker of fire houses, at an annual salary of $500." The prosecutor's annual salary at the time of the adoption of this resolution was $1,620. On May 24th, 1932, respondent, by resolution, appointed one Orsini building inspector of the municipality, at an annual salary of $1,000, and assigned to him the "duties of fire escape inspector."
The prosecutor served in the United States army during the world war, and was honorably discharged, and is also an exempt fireman. He attacks the municipal action represented by the resolution appointing Moore as relief caretaker of fire houses as in contravention of chapter 14 of the laws of 1907 (Pamph. L. 1907, p. 37; 4 Comp. Stat., p. 4873) and chapter 212 of the laws of 1911 (Pamph. L. 1911, p. 444). No charges were preferred against the prosecutor, and he was not accorded the hearing required by these statutes in the event that removal or dismissal from an office or position is sought. It is stipulated that he was not removed for cause; that he was "dismissed in the interest of municipal economy;" that the resolution under attack "did not abolish the office of relief caretaker, but its effect was to dismiss prosecutor from the fire department;" and that the governing body acted in good faith in the adoption of the resolution, and was not influenced by political motives. Respondent
argues that the statutes invoked by prosecutor do not apply for two reasons, viz.: (1) the prosecutor held his position for a term fixed by law; and (2) the municipal action complained of effected a substantial annual saving, and was a bona fide effort to promote the public interest.
As to the first point, the contention seems to be that the prosecutor was appointed for a term co-extensive with that of the governing body. The city of Wildwood is a commission governed municipality. Pamph. L. 1911, p. 462. On the day of prosecutor's appointment, but prior thereto, the board of commissioners adopted a resolution providing that "all employes in the several departments of the city, either elective or appointive, shall continue to hold their respective positions until they are either elected or appointed or until their successors are qualified."
It is argued that prosecutor was appointed for a term fixed by law, i. e., "a term co-extensive with that of the creating board," and McGrath v. Bayonne, 85 N.J.L. 188, and Woolley v. Flock, 92 Id. 65, are cited. But neither case supports this contention. In McGrath v. Bayonne, the resolution appointing an assistant building inspector fixed the term at one year, and Chief Justice Gummere held that (page 192) "an office or position which is created by municipal ordinance or resolution adopted pursuant to power conferred by the legislature upon the governing body for that purpose, is just as much created by law, and its term, when fixed by such ordinance or resolution, is just as much fixed by law as if the legislature itself had acted in the premises." In Woolley v. Flock, the controversy related to the term of office of the "presiding officer of the board of commissioners, and as such 'mayor' and 'director of the department of public affairs'" of commissioned governed cities. Mr. Justice Trenchard ruled that such officer "holds for a term of four years, and not merely at the will of the board of commissioners."
But there is no analogy between that and the instant case. Mr. Justice Trenchard rested his conclusions upon statutory provisions which are not applicable to the position held by prosecutor. He ...