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Burke v. Kenny

Decided: September 20, 1950.

FRANCIS X. BURKE, PLAINTIFF-APPELLANT,
v.
JOHN F. KENNY, DONALD SPENCE, LOUIS MESSANO, CHARLES WITKOWSKI, JAMES F. MURRAY, INDIVIDUALLY AND AS THE BOARD OF COMMISSIONERS OF THE CITY OF JERSEY CITY, JAMES A. TUMULTY AND CITY OF JERSEY CITY, A MUNICIPAL CORPORATION, DEFENDANTS-RESPONDENTS



Jacobs, Bigelow and Jayne. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

The subject matter of this litigation can be concisely stated. Pursuant to a resolution adopted by the Board of Commissioners of the City of Jersey City on June 17, 1947, the plaintiff was appointed to the office of City Clerk and he thereafter performed the duties of that office. On May 10, 1949, a municipal election was conducted in the City of Jersey City at which the former incumbents of the Board of Commissioners were defeated and the defendants were elected. At the organization meeting of the newly constituted Board on May 17, 1949, a resolution was adopted, of which the following portion is presently pertinent:

"RESOLVED, That James A. Tumulty, Jr., be and he is hereby appointed City Clerk of Jersey City, at an annual salary of Seven Thousand Five hundred Dollars ($7,500.00) payable in equal semimonthly installments; said appointment to take effect immediately * * *."

The plaintiff promptly impugned the legality of the latter resolution in that it was the acknowledged fact that he had served as a soldier in the armed forces of the United States during World War II from September 16, 1940, until his honorable discharge from such service on November 12, 1945, and that consequently he was entitled by virtue of the provisions

of our existing statutory law to retain the office during good behavior.

Succinctly stated, this action was instituted to obtain a judicial determination of the title to the office thus drawn into controversy. With all the material facts admitted, the decision of the Law Division of this court was accelerated by means of converse motions for summary judgment. The judgment was adverse to the contention of the plaintiff, 6 N.J. Super. 524, 69 A.2d 757 (Law Div. 1949); hence the present appeal. Rule 3:81-7.

There are certain features of this case which prompt us to state preliminarily that although prerogative writs have been superseded and a simplified procedure has been adopted "in lieu thereof" (Rule 3:81-1), yet in an action, such as this, prosecuted under the authority of R.S. 2:84-7, N.J.S.A. , the plaintiff alleging himself to be lawfully entitled to the office must assume the burden of proving his right to the office and the validity of his own title to it. The weakness or invalidity of the title of the incumbent does not supply any strength to the plaintiff's cause of action. Davis v. Davis , 57 N.J. Law 80, 30 A. 184 (Sup. Ct. 1894); Manahan v. Watts , 64 N.J.L. 465, 45 A. 813 (Sup. Ct. 1900); Dunham v. Bright , 85 N.J.L. 391, 90 A. 255 (Sup. Ct. 1914); Florey v. Lanning , 90 N.J.L. 12, 100 A. 183 (Sup. Ct. 1917); McCarthy v. Walter , 108 N.J.L. 282, 156 A. 772 (E. & A. 1931); Toomey v. McCaffrey , 116 N.J.L. 364, 184 A. 835 (Sup. Ct. 1936).

We note in passing that the only authentic designation of the term of office of a city clerk of Jersey City appears in its charter wherein it is fixed for the period of one year. P.L. 1871, c. 424, pp. 1094, 1108. The city, however, adopted the form of municipal government designed by the Walsh Act. P.L. 1911, p. 462; R.S. 40:70-1, N.J.S.A.

Suffice to state that it has been uniformly resolved that where there is no inconsistency or conflict between the provisions of the charter and the statute erecting the new form of government, the charter powers and provisions continue

in force and the powers conferred by statute such as those creating, for example, the commission form of government or the municipal manager form, are to be regarded as supplementary. Walsh v. Trenton , 117 N.J.L. 64, 186 A. 818 (Sup. Ct. 1936); Mattia v. City of Newark , 119 N.J.L. 268, 196 A. 202 (Sup. Ct. 1938).

The statutory structure of commission form of government incorporates the essential requirement that "the board of commissioners shall appoint a municipal clerk to hold office for such term as it shall fix." R.S. 40:73-7, N.J.S.A. It may be reasonably asserted that the statute bestowed upon the commissioners the power and authority to alter the duration of the term of that office from that ...


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