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Marvel v. County of Camden

Decided: February 19, 1948.

ALBERT S. MARVEL, JR., PROSECUTOR-APPELLANT,
v.
COUNTY OF CAMDEN, SAMUEL C. BERRY, WILLIAM W. MESSENGER, ANDREW F. GANSER, RALPH GITHENS, JAMES KERSHAW, OSCAR MOORE AND HAROLD F. WALTERS, DEFENDANTS-RESPONDENTS



On appeal from the Supreme Court, whose opinion is reported in 135 N.J.L. 575.

For the prosecutor, Alexander Feinberg (Samuel P. Orlando, of counsel).

For the respondents, George G. Tartar and Joseph W. Cowgill (Carl Kisselman, of counsel).

Colie

The opinion of the court was delivered by

COLIE, J. This appeal brings up a judgment of the Supreme Court dismissing a writ of certiorari.

On January 1st, 1941, the County of Camden organized under the act relating to small boards of chosen freeholders. R.S. 40:20-20, et seq. On January 21st, 1942, one Earl Armstrong was elected by the board as clerk of the Board of Chosen Freeholders and as auditor of the County of Camden for a term of three years commencing on that date. On January 11th, 1945, Mr. Armstrong was again elected by the board to the same offices for a further term of three years, commencing January 21st, 1945. On December 30th, 1946, Mr. Armstrong resigned from each of said offices. Thereupon the Board of Freeholders elected Albert S. Marvel, Jr., as clerk of the board and as county auditor for a term of three years, to commence December 30th, 1946. On January 1st, 1947, a new Board of Chosen Freeholders, elected the previous November, organized and forthwith passed two resolutions

reciting that the appointments on December 30th, 1946, of Mr. Marvel were "without authority of law, and therefore void and of no effect and a vacancy still exists" in said offices and then went on to elect one Harry L. Cranmer "for the unexpired term to commence January 1st, 1947."

The respondents state the question succinctly as follows: Where vacancies occur in the offices of the clerk to the Board of Chosen Freeholders and county auditor, the terms of which, by statute, are fixed for three years, may succeeding appointees be appointed for a period exceeding the unexpired term of the preceding incumbents? The question presented is one of construction of the following statutes: R.S. 40:20-26: "The terms of office of all officers then holding office under appointment by the board of chosen freeholders existing in any county at the time of reorganization thereof under sections 40:20-20 to 40:20-35 of this title in such county, shall not be affected thereby but the officers then holding office shall continue in office during the terms for which they were originally appointed or elected and until their successors shall have been appointed or elected and shall have duly qualified. Thereafter all offices to be filled by the board of chosen freeholders shall be for the term of three years."

R.S. 40:21-5: "Whenever an officer elected or appointed by the board of chosen freeholders shall cease to be a bona fide resident in the county except by virtue of a change of boundaries of the county, or whenever the resignation of any such officer shall have been accepted by the proper authority, a vacancy in the office held by that person shall immediately exist, and he shall not exercise any of the duties of the office theretofore held by him. Vacancies shall be filled by the board in the same manner as the original selection or appointment."

R.S. 40:21-18: "The board of chosen freeholders shall elect a clerk of the board for the term of three years * * *."

R.S. 40:21-20: "The board of chosen freeholders may elect, for the term of three years, a county auditor * * *."

No one of the above statutory provisions refers to an unexpired term. To the contrary, R.S. 40:20-26, R.S. 40:21-18 and R.S. 40:21-20 ...


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