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Finnegan v. Miller

Decided: September 7, 1944.

EUGENE A. FINNEGAN, RELATOR,
v.
DORIS L. MILLER, DEFENDANT



On quo warranto.

For the relator, Bertram M. Berla.

For the defendant, Raymond C. Matthews.

Before Justice Heher, by consent.

Heher

[132 NJL Page 192] HEHER, J. The subject-matter of this proceeding, commenced under R.S. 2:84-7, is the title to the office of collector of taxes of the Township of Rockaway, in the County of Morris.

After a public hearing on notice, the governing body of the municipality, on April 4th, 1944, adopted a resolution removing relator from the stated office, (a) for failure to hold a sale for taxes in arrears on July 1st, 1943, in accordance with R.S. 54:5-19; (b) for failure "to sell for all taxes in arrears on July 1st, 1942," at a tax sale held on December 17th, 1942, contrary to the same section; and (c) for selling parcels of a particular person, at the last-mentioned sale, "for amounts greater than set forth in the advertisement of sale."

These and other specifications of misfeasance and nonfeasance were reduced to writing and served upon defendant. He appeared at the hearing, without counsel, but withdrew before it had progressed to the point of taking testimony. The hearing proceeded and evidence was adduced in support of the charges. The removal was predicated upon a finding, embodied in the resolution adverted to, that the three stated specifications had been established by the proofs. Relator had been elected to the office in question for a term expiring on December 31st, 1944; and, on the assumption of a vacancy, the defendant was appointed collector by the governing body for relator's unexpired term. It is common ground that, if the office was vacant at the time of defendant's appointment, his title is unimpeachable.

The case comes before me, by consent, on an information in the nature of quo warranto, plea, reply, and stipulation of facts.

It is argued, first, that the power of removal vested in the governing body by R.S. 54:5-41 has relation only to the "certifying officer" referred to in R.S. 54:5-40, and that, at all events, it is confined to the selling function of the collector and not to the office itself.

But the power is not so circumscribed. Section 54:5-41, supra, is a part of the article headed "Sale of real property to enforce liens." It provides that "A municipal officer may be removed from office by the governing body of the municipality after hearing, for failure to comply with any reasonable direction provided for in this section and said section 54:5-40, or for failure to comply with any other duties

imposed on him by this chapter." Section 54:5-19 requires an annual sale to enforce tax liens, subject to certain conditions. The duty is laid upon the "collector or other officer charged by law in the municipality with that duty;" and it is therein also provided that the term "collector" as thereinafter used "includes any such officer," and the term "'officer' includes the collector." Thus, by the express terms of the statute, the tax collector is a "municipal officer" within the purview of the removal clause. This is essentially a remedial measure to insure diligence and efficiency in the administration of the tax laws. There is no intimation of a purpose to distinguish in this regard between elective and appointive offices. A collector not mindful of duty could seriously hamper the enforcement of the tax policy; and the legislature undoubtedly had this in view in framing the removal provision. To justify ouster, the failure of duty must be substantial in character. And the general rule seems to be that it must also be intentional and not merely accidental or involuntary. 46 C.J. 988. But our court of last resort has expressed the view, obiter, that it need not be "willful." McCran v. Gaul, 95 N.J.L. 393; affirmed, 96 Id. 165. It is conceded that, by force of section 54:5-19, supra, the collector here was under a peremptory duty to hold a tax sale during the year 1943, and that he defaulted in the performance of the obligation.

And the statute in respect of this provision does not contravene article IV, section 7, paragraph 4, of the State Constitution, directing that every law shall embrace but one object, and that shall be expressed in the title. The object of the Revision of 1937 is single and is expressed in its title. State v. ...


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