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Morgan v. Mayor and Council of Borough of Roselle Park

Decided: November 10, 1942.


On certiorari.

For the prosecutor, Nicholas A. Tomasulo (Maurice A. Scotch, of counsel).

For the defendant, Joseph A. Lettieri.

Before Justices Bodine, Heher and Perskie.


The opinion of the court was delivered by

HEHER, J. Prosecutor maintains that on July 16th, 1940, he was illegally removed from the office of director of welfare of the Borough of Roselle Park. The challenged action was in form a "permanent suspension" by the Local Assistance Board (organized under R.S. 1937, 44:8-1, et seq., as amended by chapter 123 of the laws of 1938) on specific charges of "insubordination," and the appointment of another as a "new and permanent Relief Administrator" in his place and stead. It is conceded that the latter assumed immediate possession of the office.

Prosecutor refused to plead to the charges so preferred and to interpose a defense, on the grounds that the board was "illegally constituted" and was not, moreover, invested by the statute with power to hear and determine the charges, and the proceeding was therefore coram non judice.

Under an act which became effective on June 18th, 1940, the supervisory authority granted to the State Financial Assistance Commission by the former-mentioned statute was transferred to the Director of Municipal Aid of the State Municipal Aid Commission; and the provisions placing the burden of such financial assistance upon the municipalities, and creating a local assistance board and a municipal director of welfare, were substantially re-enacted. Pamph. L. 1940, p. 277. By a subsequent enactment, effective July 8th, 1940, chapter 8 of Title 44 of the Revision of 1937 was repealed in its entirety. Thereby the State Financial Assistance Commission and "the office of Director of Financial Assistance and all other offices, positions and employments of said commission" were abolished, and "all the powers and duties" of that commission were vested in the State Municipal Aid Administration "for the purpose of completing all matters now pending and incompleted before" the Commission. Pamph. L. 1940, p. 549. There is no contention that the enactment of these statutes terminated the local assistance board or the office of municipal director of welfare. The writ of certiorari herein was allowed on August 19th, 1940.

It is urged, in limine, that the welfare directorship is an office in legal intendment, and that prosecutor misconceived the remedy since he was not the incumbent.

The place takes the category of an office. It is a creature of the legislature to which certain, permanent duties are assigned. The legislature has declared it to be the "public policy" of the state that "public assistance" be rendered to indigent persons while within its confines; and the provision thereof is made the obligation of the municipalities. Local assistance boards are founded for the administration of the law. The director of welfare is constituted the "chief executive and administrative officer;" and his duties are delineated in the act. He is invested with the authority to "render such aid and material assistance as he may in his discretion, after reasonable inquiry, deem necessary" to serve the statutory policy. He is charged with the continuing duty of periodic investigations and visitations of persons receiving such assistance, and of taking such action as the circumstances warrant, including the devising of ways and means "for bringing persons unable to maintain themselves to self-support or to the support of any other person or agency able and willing to do so." R.S. 1937, 44:8-1, as amended; 44:8-7, et seq., as amended; chapter 130 of the laws of 1940, supra. He is clothed with sovereign functions of government for an end that is public; and thus he holds an office within the concept of the law. Fredericks v. Board of Health, 82 N.J.L. 200; McGrath v. Bayonne, 85 Id. 188.

And it is the settled rule that the possessor's title to an office is triable only by a writ in the nature of quo warranto. One in possession of an office may be adjudged guilty of usurpation only by means of this writ. The incumbent may invoke certiorari to test the validity of a proceeding which he apprehends may be used unlawfully to oust him from possession; but the validity of his title may not be determined in that proceeding. Bradshaw v. City Council of Camden, 39 N.J.L. 416; Haines v. Freeholders of Camden, 47 Id. 454; Loper v. City of Millville, 53 Id. 362; Roberson v. City of Bayonne, 58 Id. 325; State v. Freeholders of

Hudson, 60 Id. 362; Bilderback v. Freeholders of Salem, 63 Id. 55; Loughran v. Jersey City, 86 Id. 442; Moore v. Borough of Bradley Beach, 87 Id. 391; Murphy v. Freeholders of Hudson County, 92 Id. 244; Hartley v. Board of Elections, 93 Id. 313; O'Neill v. Bayonne, 99 Id. ...

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