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Ware v. Board of Commissioners

New Jersey Supreme Court


Decided: January 13, 1939.

WILMON W. WARE, APPELLANT,
v.
BOARD OF COMMISSIONERS OF CAPE MAY CITY, RESPONDENT

On appeal from the Supreme Court, whose opinion is reported in 120 N.J.L. 48.

For the appellant, S. Rusling Leap.

For the respondent, Samuel F. Eldredge (William Elmer Brown, Jr., of counsel).

[121 NJL Page 545]

PER CURIAM.

The judgment under review will be affirmed, and except for minor matters herein noted, for the reasons expressed in the opinion delivered by Mr. Justice Heher in the Supreme Court.

1. The letter to appellant directing him to "report for work" was written by the "acting city manager" who in fact was the city clerk, appointed by council, we presume as a "properly qualified person" pursuant to section 807 of the statute. Pamph. L. 1923 (at p. 230); R.S. 40:82-6.

2. It is urged that section 805 (R.S. 40:82-4 j) provides that "the municipal manager shall in all matters act under the direction and supervision and subject to the approval of the municipal council;" and that this confers upon the council a supervisory control over appointments, although it is expressly conceded that no other method of appointment is authorized by the act, than by the manager under section

[121 NJL Page 546]

804 (d). But we agree with the Supreme Court that this general language of section 805 should not be read as affecting the specific power of appointment contained in section 804 (d), and that independent appointment by the manager is of the essence of the legislative scheme.

We agree further that appellant's claim to the office, position, or employment, whatever it may be, is defective on his own showing. Loper v. Millville, 53 N.J.L. 362.

The judgment is accordingly affirmed.

For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, CASE, DONGES, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 13.

For reversal -- None.

19390113


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