Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.
[4 NJSuper Page 126] The City of Passaic adopted the commission form of government in 1911. In the exercise of powers legislatively conferred upon them, the Board of Commissioners established a police court and assigned it to the Department of Public Safety. On December 14, 1948, in conformity with the 1947 Constitution and pursuant to chapter 264 of the Laws of 1948, as amended by chapter 394, an ordinance was adopted establishing a municipal court in the City of Passaic as of January 1, 1949. The term of office of the police court judge then in office ended on January 15, 1949, and by the terms of the ordinance establishing the municipal court, he was to continue as municipal magistrate for the balance of his term. On December 18, 1948, and again on December 27, 1948, the Director of Public Safety appointed defendant, Friedbauer, as municipal magistrate for a term of three years, from January 16, 1949. On December 28, 1948, the Board of Commissioners assigned the municipal court to the Department of Public Affairs and the Director of that Department appointed plaintiff, Pashman, as municipal magistrate for a term of three years beginning
January 16, 1949. On January 12, 1949, Pashman instituted an action in the Superior Court, Law Division, and obtained an ex parte preliminary restraint preventing Friedbauer from exercising the office of municipal magistrate. Thereafter, the court entered a judgment determining that the transfer of the municipal court from the Department of Public Safety to the Department of Public Affairs and the appointment of Pashman as municipal magistrate was valid and the appointment of Friedbauer by the Director of Public Safety to the position to be invalid and set it aside. Defendants' appeal stems from this judgment.
Defendant, Andrus, contends that since he had authority to appoint the police court judge, he had authority during his term of office to appoint the municipal magistrate.
The general rule on prospective appointments is set forth in 46 C.J. , § 64, at p. 952, as follows:
"The general rule is that a prospective appointment to fill a vacancy sure to occur in a public office, made by an officer who, or by a body which, as then constituted, is empowered to fill the vacancy when it arises, is, in the absence of a law forbidding it, a valid appointment, and vests title to the office in the appointee. And an appointment to a new office to take effect on the establishment of such office may be made before the law establishing such office goes into effect. But an officer clothed with power of appointment to a public office has no right to forestall the rights and prerogatives of his successor by making a prospective appointment to fill an office, the term of which cannot begin until his own term and power to appoint have expired."
To exercise this power of prospective appointment, it appears from the quoted rule that it must be "made by an officer who, or by a body which, as then constituted, is empowered to fill the vacancy when it arises,". This establishes a requirement of definiteness of the power to fill the vacancy when it arises. The appointive power of the several commissioners under a commission form of government is subject to be assigned or withdrawn at any time in the discretion of the Board of Commissioners. In Tagliareni v. Stilz , 120 N.J.L. 5, at p. 7 (Sup. Ct. 1938); affirmed, 121 N.J.L. 49 (E. & A. 1938), Mr. Justice Trenchard states:
"* * * Upon the board rests the responsibility for the proper functioning of the government of the municipality. By statute the board 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."
It becomes apparent then that the Director of Public Safety in the case sub judice is not an officer empowered to fill the vacancy when it arises under the rule if the Board of Commissioners reassigns his power of appointment to another before the vacancy occurs. In support of his argument that he has the power of prospective appointment the defendant, Andrus, draws an analogy to the prospective appointments made by the Governor of this State. To this we find a very important distinguishing feature in that the Governor, by virtue of his office, for a stated term with appointive powers allocated to him by the Constitution or by law has justifiable reason to expect that his powers will be continuing powers for the duration of his term of office. Whereas a commissioner, by virtue of his office, under the commission form of government, is charged with knowledge that duties and powers may be assigned to him or reassigned to another as the Board of Commissioners in their judgment deem appropriate. His powers are not vested powers but defeasible powers and are powers of such a nature as to be uncertain and indefinite as far as the rule of prospective appointments is concerned. To extend the rule to cover this situation would be unwarranted in the face of the requirement that the officer, at the time of the appointment, must be the officer empowered to fill the vacancy when it arises. The danger in extending the rule to cover the circumstances of this case would be that the will of the individual commissioner could defeat the authority of the board to reassign the powers of the commissioners in accordance with the dictates of the public welfare.
Defendant further contends that the municipal court, as established under the 1948 ordinance, is not a new court,
but is simply a continuation and alteration of the police court and the power to appoint the municipal magistrate was vested in the defendant, Andrus, as Director of Public Safety at the time he appointed Friedbauer. Contra , plaintiff contends that the municipal court is a new court, that the police court was abolished and the appointing power vested, therefore, in the Director of the Department of Public Affairs to which the municipal court was assigned. In accordance with the power conferred upon the Board of Commissioners by R.S. 40:72-4, the various departments of the governing body were established and the powers and duties to be performed by each department assigned pursuant to R.S. 40:72-5. The authority of the Board of Commissioners is a statutory power conferred upon it by the Legislature and in turn the duties and powers of the several commissioners as ...