For the relator, Charles E. McCraith.
For the defendant, David Armstrong.
Before Brogan, Chief Justice, and Justices Donges and Perskie.
The opinion of the court was delivered by
DONGES, J. Relator, by this writ of quo warranto, seeks to oust the defendant from the office of building inspector of the City of Rahway and to have it adjudged that relator is entitled to occupy said office. It seems to be conceded that
the building inspector is an officer, as distinguished from a holder of a position or employment, so quo warranto would appear to be the proper remedy. Fredericks v. Board of Health, 82 N.J.L. 200; Nickerson v. Wildwood, 111 Id. 169; Ziegler v. City of Hackensack, 114 Id. 186.
It appears that the relator, Patsy Pellegrino, was appointed to the office on January 1st, 1935, for a term of two years. None of the sections of the city building ordinance contained in the record fixes a term of office for the building inspector and apparently the appointment was made for two years by virtue of R.S. 40:171-58, which provides that in all cities the governing body shall have power to prescribe the duties and fix the compensation of the inspector of buildings and "to fix his term of office, not to exceed two years." However, there was in existence another statute, R.S. 40:171-168, dealing particularly with inspectors of buildings in second class cities, of which Rahway is and was in 1937 one, reading as follows:
"The inspectors of buildings appointed or elected by municipal boards in cities of second class in this state shall hold office during good behavior and shall not be removed, discharged or reduced in pay or position except for inefficiency, incapacity, conduct unbecoming an employee or other just cause, and until the said officials shall have been furnished with a written statement of the reasons for such removal, discharge or reduction and shall have been given a reasonable time to make written answer thereto. Nor shall such removal, discharge or reduction be made until the charge or charges shall have been examined into and found true in fact by the board of officials appointing the said inspector at a hearing, upon reasonable notice to person charged, at which time he may be represented by counsel and offer testimony of witnesses or other evidence in his behalf."
In any event, the relator continued to serve as building inspector with two increases in salary, without further appointment, until January 3d, 1944, when he was dismissed and defendant was named "Part Time Inspector of Buildings" at a reduced salary for a term of two years. In 1936 the city adopted the provisions of the Civil Service Law and
the relator was certified and recorded as being within the classified service. Apparently that status was assumed by everyone concerned until after relator's dismissal when the Civil Service Commission ruled that he was the head of a department and therefore in the ...