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Lohsen v. Borough of Keansburg

Decided: November 29, 1949.

CLINTON B. LOHSEN, PLAINTIFF,
v.
BOROUGH OF KEANSBURG, A MUNICIPAL CORPORATION OF NEW JERSEY, AND RALPH O. WILLIAMS, DEFENDANTS



Brown, J.s.c.

Brown

The complaint in this cause contains allegations that the plaintiff is a resident of the Borough of Keansburg and has been such during the periods mentioned in the complaint, and that he is an exempt fireman and holds a certificate in accordance with the laws of the State. The plaintiff was first appointed Municipal Manager of the Borough on the third day of May, 1927, without the tenure of office being mentioned. His second appointment to the same office was in May, 1929. The resolution of his appointment at that time contained the statement, "to hold office during the pleasure of the Municipal Council." His third appointment occurred in May, 1933. The resolution limited the term to December 31, 1933. He was again appointed in May, 1937, "to serve at the pleasure of the Municipal Council." In May, 1941, he was appointed and again in May, 1945. The tenure of both these appointments were "at the pleasure" of the Municipal Council. In all the appointments made the plaintiff, as each was made, took the oath of office and accepted the appointments on the conditions and for the terms therein mentioned. On May 24, 1949, Ralph O. Williams was appointed by the Borough as Acting Municipal Manager of the Borough of Keansburg, to serve "at the pleasure of the Municipal Council." At the same time the Municipal Clerk informed the plaintiff of the appointment made and directed that the plaintiff turn in to the office of the Clerk of the Borough all the records, books and property belonging to the municipality.

The appointment of Ralph O. Williams as Acting Municipal Manager was made shortly after an election of members of the Municipal Council. The resolution was passed by the Mayor and Council just previous to the time Williams was appointed as Acting Municipal Manager. Williams' appointment was made "pending the selection of a permanent Municipal Manager."

In answer to the notice mailed to the plaintiff by the Borough on May 26, 1949, informing the plaintiff of the appointment of the Acting Municipal Manager, the plaintiff through his attorneys on the following day, by letter notified

the Mayor and Council of the Borough that the plaintiff insisted that he had a right to hold the office and that he was ready and willing to continue in the performance of his duties as Borough Manager. The plaintiff claims there were no charges made against him, nor any hearing in connection therewith, preceding the appointment of the Acting Municipal Manager.

The plaintiff in his complaint demands judgment that the resolution appointing Williams be declared "illegal, invalid and of no effect," and that the Borough be ordered and directed to reinstate the plaintiff and permit him to perform his duties and receive compensation therefor; that the Borough be ordered and directed to pay the plaintiff his salary from the date of his "attempted removal to the date of his return to duties; that the defendant Williams be ordered and directed to vacate "the alleged office of Acting Municipal Manager and to turn over to the plaintiff all books, records and documents pertaining to the office of Municipal Manager."

The defendants in their answer allege that the plaintiff is not a resident of the Borough, and at the time of the appointment of Williams and for a considerable period prior thereto the plaintiff was not qualified to hold office as Municipal Manager; that the plaintiff voluntarily vacated the office of Municipal Manager prior to the appointment of Williams; that the plaintiff is estopped to deny that his term of office extended beyond the appointment of Williams; that the plaintiff was appointed Manager for a fixed term which expired prior to the time of the appointment of Williams; that the plaintiff failed to properly perform the duties of the office of Municipal Manager, thereby disqualifying himself for continuing to hold said office, and that the disqualification was voluntary on the part of the plaintiff.

Since the filing of the answer the plaintiff has moved for summary judgment in his favor and the defendants have moved for summary judgment in their favor. Affidavits were filed by the parties. Those of the defendants purporting to prove that the plaintiff was not a resident of the Borough of Keansburg, and affidavits of the plaintiff to the contrary. A

stipulation of facts was subsequently entered into by the parties wherein it was agreed that the appointments of the plaintiff and Williams to office were as above stated and were made on the dates and in the manner and according to the tenures above mentioned. It was also agreed that the plaintiff is the holder of an exempt fireman's certificate issued to him in accordance with the laws of New Jersey; that no charges were served upon the plaintiff, and no hearing held in connection with any charges prior to the appointment of Williams and that it is the contention of the defendants that his term of office had expired, and that the Acting Municipal Manager appointment was made in place thereof. The stipulation alleges that the parties are in disagreement as to the plaintiff being a resident of the Borough at the time alleged in the complaint; the defendants contending that some time during the years 1941 or 1942 the plaintiff became a nonresident and has continued to be such up until the time of the filing of the stipulation. The plaintiff contends that the question of residence is irrelevant and that any charge of nonresidence is subject to charges being made and proof being offered at a hearing before the Council prior to the removal from office.

In a brief submitted, the plaintiff alleges he has tenure to the office by virtue of the provisions of R.S. 40:82-3, and also by virtue of the tenure provision of the statute relating to exempt firemen, R.S. 40:47-60. Plaintiff further contends that his removal by a resolution of May 24, 1949, ...


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