For the prosecutor, Merritt Lane.
For the respondents. William A. Rubin.
Before Justices Parker, Bodine and Perskie.
BODINE, J. The Supreme Court allowed this writ to test the validity of an ordinance of the city of Bayonne fixing the term of the health officer of that city for the term of five years. The ordinance was adopted April 5th, 1938. The writ also tests the validity of an ordinance adopted January 5th, 1939, designed to repeal the earlier ordinance. The ordinance of April 5th, 1938, besides fixing the term, imposed upon the health officer the duty of enforcing the sanitary code and all other ordinances relating to the public health. The prosecutor was duly appointed November 14th, 1938, and qualified.
R.S. 26:3-19, so far as pertinent, in part provides as follows: "The local board [of health] may employ such personnel as it may deem necessary, including health officers, sanitary inspectors, and plumbing inspectors, to carry into effect the powers vested in it. It shall fix the duties, term, and compensation of every appointee. The appointee, agents and officers of a local board shall hold their offices during the term for which they are severally appointed, and shall not be removed except for cause and after an opportunity has been given them for a hearing. Any duly appointed health officer shall, during the term of his appointment and subject to the superior authority of the local board appointing him, be its general agent for the enforcement of its ordinances and the sanitary laws of the state within the territorial jurisdiction of the board."
The city contends that the Board of Commissioners on April 5th, 1938, had no power to fix the term of the health officer for five years; that fixing it is claimed was ultra vires,
and that prosecutor was, therefore, appointed without legal authority and is a mere de facto officer. This is not the law. The term of the prosecutor having been fixed by ordinance, pursuant to the statute, the power to rescind was gone. Haight v. Love, 39 N.J.L. 14; affirmed, Id. 476; Clay v. Browne, 96 Id. 303; affirmed, 97 Id. 315.
The provisions of R.S. 26:3-19 apply to municipalities like Bayonne operating under the commission government. Salter v. Burk, 83 N.J.L. 152; Keffer v. Gaskill, 88 Id. 77; Walsh v. Trenton, 117 Id. 64; Mattia v. Newark, 119 Id. 268. The legislature having conferred on the municipality authority to fix the term without limitation, the cases, to the effect that the board of commissioners being a non continuous body cannot fix a term extending beyond its life, are inapplicable.
In Bodnar v. Board of Health of Carteret, 14 N.J. Mis. R. 318 (Mr. Justice Case sitting on certiorari pursuant to the statute, affirmed, 117 N.J.L. 527) this court held: "That section has been specifically construed by the Court of Errors and Appeals in Browne v. Hagen, 91 N.J.L. 544; 104 A. 207, and Clay v. Browne, 96 N.J.L. 303; 114 A. 808; affirmed on the opinion below, 97 N.J.L. 315; 116 A. 926. The language and reasoning of these opinions, particularly in Clay v. Browne, are such that I am constrained to conclude that the Court of Errors and Appeals considered that the section authorized the appointment of officers and agents by a local board for a period longer than one year. I am not unmindful of the decisions in Skladzien v. Board of Education of the City of Bayonne, 12 N.J. Mis. R. 602; 173 A. 600; affirmed, 115 N.J.L. 203; 178 A. 792; Board of Education of Cedar Grove v. State Board, 115 N.J.L. 67; 178 A. 208; O'Connell v. Bayonne, 116 N.J.L. 61; 181 A. 902, and Evans v. Board of Education, 13 N.J. Mis. R. 506; 179 A. 475. Those cases, however, seem to leave untouched the findings in Browne v. Hagen, supra, and Clay v. Browne, supra, which, neither overruled nor distinguished, are so directly in point that I, sitting in my present capacity, regard them as controlling. This leads to the conclusion that the board, in
January, 1935, did have the authority to appoint for a period of more than one year. The statute further provides, in section 36, that 'the appointees, agents and officers of the said boards, except those merely temporary, shall hold their offices during the term for which they were severally appointed, and shall not be removed therefrom except for cause and after an opportunity has been given them for a hearing.' This makes quite plain that one who has been ...