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Murphy v. Ellenstein

Decided: November 9, 1937.

VINCENT J. MURPHY, PROSECUTOR,
v.
MEYER C. ELLENSTEIN ET AL., DEFENDANTS



On writs of certiorari.

For the prosecutor, Thomas L. Parsonnet, Andrew F. Zazzali, Bertram A. Garrigan and Sidney Finkel.

For the defendants, James F. X. O'Brien, Simon Englander and Thomas M. Kane.

Before Justices Lloyd, Case and Donges.

PER CURIAM.

These cases are before us on writs of certiorari to review certain actions of the board of commissioners of the city of Newark. Prosecutor is a member of that board, and has been designated as director of the department of revenue and finance.

Case No. 233 brings up a resolution authorizing and directing prosecutor, as director of the department of revenue and finance, to pay the salaries of persons holding offices or positions the legality of which is herein questioned. The contention of the prosecutor is that the persons sought to be paid are not proper holders of offices and, therefore, are not entitled to receive salary.

Case No. 234 brings up resolutions appointing members of the board of public safety. It is claimed that this board

does not legally exist, and that, therefore, the appointments sought to be made are invalid.

No. 235 brings up a resolution appointing seven assistants to the corporation counsel. The argument of prosecutor is that only six such offices exist and further that the corporation counsel had not yet taken the oath of office when the appointments were made.

No. 237 brings up resolutions creating and appointing the members of the board of assessment for local improvements. Prosecutor here argues that this board had never been properly created by ordinance and, therefore, the resolutions under attack were improper. Subsequently an ordinance was adopted and the governing body again designated the same persons to hold the offices. Prosecutor claiming the right to make the appointments properly belonged to him, attempted to appoint other persons. The proceedings under the ordinance are under attack in Murphy v. Board of Commissioners of Newark, 119 N.J.L. 163.

No. 238 brings up two resolutions appointing an acting comptroller and an acting auditor of accounts, respectively. The contention of prosecutor is that the right to make these appointments lies in him as director of revenue and finance and, therefore, the appointment by the whole board was improper.

No. 239 brings up resolutions creating and appointing members of the board of assessment and revision of taxes. Here the contention is that this board was never properly created by ordinance and does not exist, and therefore no such appointments could be properly made. With respect to this board, also, an ordinance was subsequently adopted and the appointments again made, and ...


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