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Pashman v. Friedbauer

Decided: January 27, 1949.

MORRIS PASHMAN, PLAINTIFF,
v.
ELMER FRIEDBAUER AND MICHAEL ANDRUS, DIRECTOR OF PUBLIC SAFETY OF THE CITY OF PASSAIC, DEFENDANTS



Civil action.

Davidson, A.j.s.c.

Davidson

This action, a proceeding in lieu of prerogative writs, seeks to vacate certain appointments of defendant Friedbauer made by Commissioner Andrus, and shortly, to test title to the office of Magistrate of the Municipal Court of the City of Passaic.

The essential facts, being matters of public record, are not in dispute. The Commission-governed City of Passaic, in accordance with the provisions of Chapter 264, as amended by Chapter 394 of the Laws of 1948, duly established, by ordinance, a Municipal Court as of January 1, 1949, and by Resolution adopted on December 28, 1948, assigned said court to the Department of Public Affairs. On the same day, subsequent to the adoption of said Resolution, plaintiff was appointed Magistrate of said court, both by Nicholas Martini, Director of Public Affairs, and by said Board of Commissioners, the appointment to take effect January 16, 1949, and duly qualified by subscribing the oath of office. In accordance with the provisions of Section 36 of said Chapter 264, plaintiff, then serving as Police Judge of the Police Court, automatically became Magistrate of said Municipal Court for a term equal to the balance of his unexpired term, which ended January 15, 1949, and seeks to hold title to and continue in said office by virtue of his appointment of December 28, 1948.

Defendant Andrus, Director of Public Safety, by Resolution dated May 20, 1947, had been assigned certain departments, boards and agencies, among which was the Police Court, and on December 18, 1948 and December 27, 1948, he appointed defendant Friedbauer as Magistrate of the Municipal Court for a term commencing January 16, 1949 and his appointee duly subscribed an oath of office for each appointment, and by way

of counterclaim seeks to have plaintiff's appointment set aside and his own declared valid.

The sole issue is whether plaintiff Pashman or defendant Friedbauer holds a valid appointment, and a mere recital of the foregoing admitted facts can lead, in my opinion, to but one conclusion, for while many points have been raised, the only meritorious question presented is that which is dispositive of the case, namely, who had the power of appointment at the time of a vacancy in the office of Magistrate.

After the organization meeting of the Commissioners and mandatory assignment of municipal offices to the several departments, the power of appointment vests in the individual Commissioner holding the department (Murphy v. Board of Commissioners of Newark , 119 N.J.L. 537, aff'd 121 N.J.L. 75) and by statute the Board of Commissioners, acting through its majority, is the governing power in the municipality, and is vested with the power and charged with the duty of determining the powers and duties to be performed by each department, and of assigning, or at any time re-assigning, such powers and duties to such department as the Board of Commissioners "'in their judgment deem appropriate,' and, in the absence of any evidence that such a determination and assignment was made in bad faith or was an abuse of discretion, a reviewing court will not disturb such action." Tagliareni v. Stilz , 120 N.J.L. 5, aff'd 121 N.J.L. 49. The 1930 amendment to the Walsh Act provides that "The board of commissioners shall determine the powers and duties to be performed by each department and shall assign such powers and duties to such department as they in their judgment deem appropriate " and there is complete discretion in the board in distributing, assigning and re-assigning offices and departments at any time, or from time to time, and the courts will decline to review the propriety or reasonableness of any such distribution, assignment or re-assignment. Tagliareni v. Stilz, supra; Murphy v. City of Bayonne , 130 N.J.L. 336; Taggart v. Altman , 130 N.J.L. 563. The last cited case holds:

"That the Board has power to assign powers, duties and departments from time to time among the various commissioners which it

may conclude in the exercise of sound discretion to be for ...


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