For the prosecutor, William Elmer Brown, Jr.
For the respondents, Enoch A. Higbee, Jr.
Before Justices Case, Bodine and Donges.
The opinion of the court was delivered by
CASE, J. The writ brings up an ordinance, adopted by the common council of the city of Linwood February 14th, 1933, repealing an earlier ordinance adopted November 9th, 1931. The earlier ordinance provided that the city "pension James Farish [who served the borough of Linwood as borough clerk for a period of forty-two years] the sum of three hundred and fifty dollars per annum, to be paid in equal monthly payments, said pension starting January 1st, 1932."
The city of Linwood was incorporated by chapter 265 (Pamph. L. 1931, p. 672), approved April 27th, 1931, and consisted of the territory theretofore incorporated as the borough of Linwood. It further appears that James Farish, the prosecutor herein, had been the clerk of the borough continuously from 1889 until the reincorporation as a city and that he acted as city clerk from that time until January 1st, 1932, when he retired, having passed the age of eighty years.
It is argued, on prosecutor's behalf, that the 1931 ordinance was passed in furtherance of chapter 103 (Pamph. L. 1923, p. 194), and that Farish was induced to relinquish his office in consideration of the promise of pension provided by that ordinance. But that does not appear in the proofs. The ordinance itself contains no such assertion; indeed it simply recites that Farish had, as was the fact, served the borough for forty-two years and in nowise refers to any service by him to the city. There is nothing in the proofs to indicate that Farish's continuance in office was other than a hold over from the borough appointment, though presumably he would have been (under chapter 135 -- Pamph. L. 1927, p. 249 -- applicable to all municipalities) entitled to tenure subject to removal for cause.
Prosecutor assigns three reasons upon which he argues that the repealing ordinance is illegal.
The first is that the 1931 ordinance constituted a contract which cannot be rescinded or abrogated. The proofs show a sequence of events but no contract. There is no evidence that Farish quit his job in consideration of the ordinance or that the ordinance was passed in consideration of his quitting. We need not consider whether such a contract would be valid.
The second is that the repealing ordinance is illegal because in violation of the law and statute in such case made and provided. No law or statute is suggested except chapter 103 (Pamph. L. 1923), and therefore this reason adds nothing to the one next mentioned.
The third is that the 1931 ordinance was passed by authority and in pursuance of chapter 103 (Pamph. L. 1923), and therefore may not be repealed. That statute is entitled "An act to provide for the maintenance of old and faithful servants of the ...