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Keaster v. Bianchi

Decided: April 4, 1941.

JOHN KEASTER, PROSECUTOR,
v.
OVID C. BIANCHI, DIRECTOR OF THE DEPARTMENT OF REVENUE AND FINANCE OF THE CITY OF ORANGE, AND THE CITY OF ORANGE, A MUNICIPAL CORPORATION, RESPONDENTS



On certiorari.

For the prosecutor, Edward R. McGlynn.

For the respondents, Edmond J. Dwyer (Joseph F. Zeller, of counsel).

Before Justices Bodine and Porter.

Porter

The opinion of the court was delivered by

PORTER, J. This writ of certiorari brings before us for review the action of Ovid C. Bianchi as Director of the Department of Revenue and Finance of the City of Orange, and the City of Orange, respondents, in terminating the term of office and discontinuing the services of John Keaster, prosecutor, as chairman of the Board of Assessors of the said city and in refusing to pay him the salary of said office from September 15th, 1940.

The facts are not in dispute. Keaster, the prosecutor, was appointed as a member and as chairman of the Board of Assessors of Orange by resolution of the Board of Commissioners dated September 12th, 1933, for a period of three years from September 15th, 1933. This appointment was made under the authority of an ordinance of the city creating such office, fixing the term, salary and prescribing the duties. The ordinance was adopted September 5th, 1933, effective September 15th, 1933. It provided that the term of office be for three years and until the qualification of successors, "said term of office shall commence on the fifteenth day of September." At the expiration of the term of office of prosecutor, September 15th, 1936, he was not reappointed nor was anyone appointed to succeed him, consequently he continued to hold office. On December 23d, 1937, Director Bianchi, respondent, reappointed prosecutor to the said office for a term of three years from the date of the expiration of the original term, September 15th, 1936. Subsequently, the legislature extended the term of office of tax assessors to four years. N.J.S.A. 40:46-6.2, effective June 16th, 1938. On September 6th, 1940, Director Bianchi, respondent, advised prosecutor that his term of office would expire as of September 15th, 1940, and that his services would be discontinued as of that date. On September 28th, 1940, said respondent appointed one Frank M. Reynolds to the Board of Tax Assessors for a term of four years from that date to fill the vacancy on the board.

The primary question before us for solution is the date of the termination of the prosecutor's term of office. The pertinent part of N.J.S.A. 40:46-6.2, supra, reads as follows:

"The term of persons holding the position or office of 'tax assessor' in any municipality of this State is fixed at four years. Any person now holding the position or office of 'tax assessor' in any municipality of this State, and any person who may be hereafter appointed to, or elected to the position or office of 'tax assessor' in any municipality of this State, shall hold their said office for a term of four years from the first day of July next following said election or appointment. These provisions shall apply to all tax assessors now holding

office, and their four year term shall be calculated as commencing on the first day of July of the year in which they were elected or appointed."

It is the contention of the prosecutor that his appointment was made December 23d, 1937, and effective from that date and not as stated in the appointment from September 15th, 1936, the expiration of the original term, that the term under this statute being for four years from the first of ...


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