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Brickett v. Lagay

Decided: July 24, 1945.

LOUIS F. BRICKETT, PROSECUTOR,
v.
FRANK LAGAY, THEODORE K. FERRY, EDWARD P.R. MCNAMARA, JOSEPH GIULIANO, ROBERT J. NEILLY, PASSAIC VALLEY SEWERAGE COMMISSIONERS, DEFENDANTS



On writ of certiorari.

For the prosecutor, Foley & Francis.

For the defendants, Louis Auerbacher, Jr.

For the American Legion, amicus curiae, Thomas E. Duffy.

Before Brogan, Chief Justice, and Justices Donges and Perskie.

Donges

The opinion of the court was delivered by

DONGES, J. This writ of certiorari was allowed to review a resolution of the defendants Passaic Valley Sewerage Commissioners, dated May 2d, 1944, removing the prosecutor from his position as river inspector for the defendants. Prosecutor is an honorably discharged veteran of the first World War and claims to have tenure under the statute.

R.S. 38:16-1 provides:

"No person now holding any employment, position or office under the government of this state, or the government of any county or municipality, including any person employed by a school board or board of education, or who may hereafter be appointed to any such employment, office or position, whose term of employment, office or position is not now fixed by law, and receiving a salary from such state, county or municipality, including any person employed by a school board or board of education, who has served as a soldier, sailor, marine or nurse, in any war of the United States * * *, and has been honorably discharged from the service of the United States, * * * shall be removed from such employment, position or office, except for good cause shown after a fair and impartial hearing, but such person shall hold his employment, position or office during good behavior, and shall not be removed for political reasons."

Prosecutor was not afforded a hearing nor was cause shown for his dismissal. The contention of the defendants is that one holding a position with the Passaic Valley Sewerage Commission does not hold a position "under the government of this state, or the government of any county or municipality" and does not receive a salary "from such state, county of municipality." That is the determining question in this case. A similar

question, although it arose under a different tenure statute, was raised in Greenfield v. Passaic Valley Sewerage Commissioners, 126 N.J.L. 171, and was expressly reserved by this court, page 173. The defendants contend that the controlling statute is R.S. 58:14-6 which provides that the commissioners "may, from time to time, appoint such other officers, attorneys, agents, engineers, employees and assistants as they may deem necessary to carry out the purposes of this chapter, and may prescribe their duties, fix their compensation and remove them at pleasure."

It has been held by the Court of Errors and Appeals that the Passaic Valley Sewerage Commissioners are not constituted a municipal body, Van Cleve et al. v. Passaic Valley Sewerage Commissioners, 71 N.J.L. 574, and it is clear that they are not a county, school board or board of education, so it follows that the prosecutor can succeed in his claim to tenure only if it be found ...


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