For the prosecutor, M. Joseph Greenblatt.
For the respondent, Solve Tuso (Albert J. McElroy, of counsel).
Before Brogan, Chief Justice, and Justices Parker and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The single question for decision is the validity of section 2 of the ordinance under review by which prosecutor, the duly elected road supervisor of the respondent township, is deprived of his asserted exclusive right to select the men to be employed in his department.
R.S. 40:145-10 provides as follows: "The road supervisor elected in townships having a population of more than forty-five hundred shall hold office for three years, and, under the general direction of the township committee, shall have complete charge and supervision of the opening, making and repairing of the roads and streets controlled by the township committee in such township. He shall receive such compensation as the township committee shall fix and determine. The township committee in every such township where a road supervisor shall have been elected may, by ordinance, abolish the office of road supervisor." (Italics supplied.)
The prosecutor, Isaac Clark, is and has been the duly elected road supervisor of respondent township since 1919. Prior to prosecutor's first election, respondent had, on March 19th, 1906, passed an ordinance (number 18) which, amongst other things, provided (section 2) that "no person shall be employed to open * * * or repair any street or road * * * except by direction of the township committee or the proper committee thereof * * *." We are told, and it is not denied, that the then road supervisor, Joseph L. Hadsell, challenged the validity of this ordinance charging the then township committeemen with evil political motives and with an attempt illegally to strip him of his powers. At all events, the docket entries in the unreported case of Joseph L. Hadsell v. Township of Landis, in this court, disclose that a rule to show cause why a writ of certiorari should not be granted to review ordinance number 18 was allowed; that depositions were taken and filed; and that on April 28th, 1906, the late Mr. Justice Swayze dismissed the rule to show cause without opinion.
Thereafter, oddly enough, the cumulative testimony discloses that the existence of ordinance number 18 was apparently entirely forgotten. It certainly was disregarded. Thus the prosecutor, from 1920 to 1940, administered his office without interference from the township committee in selecting, hiring and discharging the employes in his department. He directed the work of the men, rendered reports to the township committee and conferred with them on the budget. The township committee bought all supplies and equipment, directed which roads and streets should be opened or repaired and when the work should be done, controlled the number of men to be employed and made the necessary budgetary provisions.
This method of operation continued until the early part of 1940 when ordinance number 224 was introduced. This ordinance provided, inter alia, that no person should be employed to perform work on the streets and highways of Landis Township nor should any person be discharged from such work, except by a majority vote of the township committee. The ordinance was passed at the first reading, was
properly advertised and was given a public hearing. After the presentation of a petition protesting the passage of the ordinance and signed by either 1,075 or 1,175 persons presumably in ...