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Defazio v. Mayor and Council

Decided: September 18, 1950.

CHARLES J. DEFAZIO, JR., PLAINTIFF,
v.
THE MAYOR AND COUNCIL OF THE CITY OF HOBOKEN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, ETC., DEFENDANT



Civil action for determination by the court without a jury, on agreed state of facts.

Drewen, J.c.c.

Drewen

[9 NJSuper Page 487] Plaintiff sues for salary claimed to be due him as assistant city attorney of the City of Hoboken for the period from May 23 to December 31, 1947. Admittedly

his official status was not de jure. The sole question here is whether it was de facto , as he alleges, and hence within R.S. 40:11-7, which provides that: "Any person who has or shall have held, de facto , any office or position in the public service of any county or municipality, and who has or shall have performed the duties thereof, shall be entitled to the emoluments and compensation appropriate to such office or position for the time in fact so held and may recover therefor in any court of competent jurisdiction, notwithstanding any refusal or failure of any other person or officer." The case is submitted for determination by the court without a jury, on an agreed state of facts.

As the result of a popular referendum held well before the inception of this controversy the City of Hoboken has since been continuously subject to the civil service law of the State. Included in that discipline is the office presently in question. (Camden v. Civil Service Commission , 129 N.J.L. 354 (Sup. 1943); affirmed, 130 N.J.L. 532 (E. & A. 1943)). By ordinance adopted by a former commission on June 1, 1943, there was created the office of assistant corporation attorney, the appointing power being vested in the Commissioner of Revenue and Finance, subject to the approval of the Board. At the time of the events, hereinafter set forth, which gave rise to this litigation, the office thus created was, and had continuously from the beginning, been held and executed de jure by one Pellet. Against the background of that situation there occurred the following acts and proceedings.

On May 23, 1947, the Board of Commissioners adopted a resolution purporting to confirm plaintiff's appointment by the Commissioner of Revenue and Finance to the office of "assistant city attorney," there being then no office of the kind in the city government save that held by Pellet, and none legally so designated. On June 3, 1947, the Board of Commissioners adopted a resolution, effective ten days later, purporting to create the office of assistant city attorney and vesting the appointment in the Commissioner of Revenue and

Finance. On June 4, 1947, the Board received a communication from the Commissioner of Revenue and Finance advising the appointment by him "this day" of plaintiff as assistant city attorney. On the same date the Board adopted a resolution purporting to "ratify, approve and concur in" that appointment. On June 14, 1947, there became effective a resolution of the Board repealing the prior ordinance of June 1, 1943, creating the office of assistant corporation attorney, "for reasons of economy as well as the resulting efficiency from a reorganization of the law officers of the city."

It is to be observed from the foregoing that plaintiff's appointment -- whether it be thought of as occurring on May 23rd or on June 4th, these stipulated dates being in apparent conflict -- was to a non-existent office; that the only office of the kind existing at the time was that created by the prior ordinance and then held de jure by Pellet; that the repealing ordinance, assuming its validity, did not become effective until after plaintiff's appointment had been made and ratified; and that from all the facts submitted the only apparent reason for, as well as the only effect of, what the Commissioners undertook to do was the changing of the title from "assistant corporation attorney" to "assistant city attorney," this being intended as a means of annulling the civil service law as it applied to Pellet's office and of supplanting his incumbency with that of plaintiff. "The appointment of one to an office or position having no legal being ordinarily gives no color or existence to the supposed office or position or color of authority to the appointee." (Handlon v. Belleville , 4 N.J. 99, at 109, February, 1950).

The elements of a true claim to de facto office are not described in any pat formula but are to be looked for in all the attendant circumstances, the basic consideration being always the convenience or necessity of the public or the prevention of prejudice to disinterested third persons. In Erwin v. Jersey City , 60 N.J.L. 141, at 144 (E. & A. 1897), Chancellor Magie said for the Court of Errors and Appeals: "It is admitted to be difficult, if not impossible, to express in a

single formula what constitutes a public officer de facto. The masterly and exhaustive review of the adjudged cases on the subject made by Chief Justice Butler in his opinion in State v. Carroll , 38 Conn. 449, plainly discloses the difficulty of an exact definition, including all circumstances in which the law, because of public convenience and necessity, treats one as a public officer, although not such, and calls him an officer de facto." There is no question in the present instance of public convenience or necessity.

One of the conditions of de facto status is acquiescence (Flaucher v. Camden, infra), but in this case plaintiff's claim to office was not only not acquiesced in but was immediately challenged in unmistakable terms. The challenge came in the form of a prompt interdict by the Civil Service Commission against payment of the salary to plaintiff, and not only was this interdict never withdrawn, it was formally affirmed. Under date of September 9, 1947, the Commission, on Pellet's appeal and after full hearing, made plenary order that the act of the Hoboken Board of Commissioners "in removing or dismissing from or discontinuing the services of Otmar J. Pellet as Assistant Corporation Attorney or Assistant City Attorney, effective on or about May 23, 1947, be and the same hereby is set aside and the said Board of Commissioners, the Director of the Department of Revenue and Finance and the City Attorney and any or all of them be and they are hereby directed to restore the said Otmar J. Pellet to the pay and title given or undertaken to be given to ...


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