For the prosecutor, Thomas Brunetto.
For the city of Newark, James F. X. O'Brien.
For Vincent J. Murphy and Joseph M. Byrne, Thomas L. Parsonnet.
Before Justices Bodine, Heher and Perskie.
BODINE, J. By two writs of certiorari, Virginius D. Mattia, the prosecutor, seeks to review his removal from the office of receiver of taxes of the city of Newark before the expiration of his term. He holds by virtue of a letter of appointment for the term of three years signed by A. F. Minisi, director of the department of revenue and finance dated October 22d, 1936.
At the time of prosecutor's appointment, the duties imposed upon the receiver of taxes by the statutes, and the charter and ordinances of the city of Newark were distributed and vested in the department of revenue and finance. Commissioner Minisi was such director at the time of prosecutor's appointment.
The city of Newark was authorized to fix the term of a tax receiver not to exceed three years. 4 Comp. Stat., p. 5184. On April 3d, 1903, the term of the tax receiver was so fixed by ordinance. By the adoption of the Walsh act, the management of municipal affairs was entrusted to a board of commissioners, but the mechanism of the city's government and the provisions of its charter remained untouched; nor were general laws or charter provisions relating to the government of the city repealed, except when inconsistent with the provisions of the act.
Although the duties of the receiver of taxes in Newark were taken over and performed by the director of revenue and finance after the adoption of the Walsh act, the statutes and ordinances relating to the office of receiver of taxes still remained in full force. Salter v. Burk, 83 N.J.L. 152. In that case was involved the right to the office of city clerk of
the city of Trenton. When that city adopted government by commission, the term of the then present city clerk came to an end, but the Supreme Court said: "The terms of the act disclose that it was not intended in any sense to be a charter or grant of municipal power, except in a most general way. The management of municipal affairs is entrusted to a board of commissioners, but it largely leaves the mechanism of the city's government and the provisions of the charter untouched. It does not alter general laws or charter provisions relating to the government of the city except when inconsistent with its provisions. Its effect is to impose upon the board of commissioners the duty to fill existing offices, made vacant by the adoption of the act and the organization of the board, under the laws and ordinances then in existence. Authority for this statement is sufficiently contained in the * * * act. That the city clerk to be thereafter elected by the commissioners must be elected for a term of three years, must therefore be conceded, for neither the statute of 1900 above cited, nor the act of 1911 (page 679) making the term three years, and until a successor shall be appointed and qualified was legislation inconsistent with the Walsh act. Hence an unqualified election of a city clerk would have constituted the selected person such for the term then prescribed by law; namely, three years."
This would seem to be a complete answer to the argument that the office of receiver of taxes no longer existed in the city of Newark. Nor does the circumstance that the duties of such officer were delegated to the director of revenue and finance convince us to the contrary; nor does the circumstance that for many years an acting receiver of taxes was selected by the entire board of commissioners seem to be any reason to nullify the plain and definite language of the statute and the ordinances adopted prior to the adoption of the commission form of government.
It was said in Sykes v. Heinzman, 100 N.J.L. 12, that the appointment of a city comptroller passed to the director of revenue and finance, and that the provisions with respect to appointments by a board of commissioners at their first ...