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Wilensky v. Gurtman

Decided: October 26, 1953.


On appeal from Superior Court, Law Division, certified by this court of its own motion.

For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Jacobs and Brennan. For reversal -- Justices Heher and Burling. Burling, J. (dissenting). Mr. Justice Heher authorizes me to state that he concurs in the views expressed herein.

Per Curiam

[13 NJ Page 406] The controversy is over the office of City Counsel of the City of Passaic. Plaintiff was first appointed in respect of a term purportedly beginning January 1, 1948 and ending December 31, 1950. He received a second appointment on April 1, 1951 "for the term prescribed by law"

which he contends related to a term beginning January 1, 1951 and ending December 30, 1953. However, on January 8, 1952 the defendant was appointed to succeed him. The Law Division held that the term legally subsisting on April 1, 1951 began on June 30, 1948 and expired June 30, 1951, so that plaintiff's appointment of April 1, 1951 was effective only until June 30, 1951 after which he was a holdover whose right to the office was terminable, and was terminated, by defendant's appointment. We of our own motion certified plaintiff's appeal to the Appellate Division.

Passaic in 1911 adopted and has since operated under the commission form of government. R.S. 40:70-1 et seq. Ordinances adopted from time to time changed the length of the term of office of the city counsel. The ordinance presently in effect was adopted in 1936 and fixes the term at three years, consistent with R.S. 40:171-109 requiring that the term for this and other offices therein named shall be for three years in cities having a population of between 55,000 and 125,000. No calendar date for the beginning of a term is specified by R.S. 40:171-109 or by the ordinance. The first appointment under the ordinance was for a three-year term beginning June 30, 1936. This established June 30 as the beginning date of successive terms triennially thereafter, cf. Keffer v. Gaskill, 88 N.J.L. 77 (Sup. Ct. 1915), unless, as plaintiff insists, R.S. 40:46-6, with which plaintiff's appointments purported to comply, and which provides that "the terms of office of all officers appointed * * * by the governing body of any municipality, * * * shall commence on January first of the year in which they are appointed," applies to cities operating under the commission form of government. But in De Muro v. Janeczek, 4 N.J. Super. 266 (App. Div. 1949), certification denied 3 N.J. 371 (1949), R.S. 40:46-6 was held to be inapplicable to commission-governed cities and to be applicable only "to municipalities that hold their elections in November and under whose form of government the governing body organizes on the succeeding first of January." We think the De Muro case was correctly decided and is

controlling against the plaintiff here. The judgment of the Law Division is therefore


BURLING, J. (dissenting).

The initial problem here is to determine whether L. 1905, c. 3, sec. 4 (now incorporated in R.S. 40:46-6) was (and is) applicable to municipalities governed under the Walsh Act.

The Walsh Act provided (L. 1911, c. 221, sec. 2 -- see R.S. 40:71-9) that upon its adoption in a municipality and organization of the commissioners first elected "* * * the terms of all * * * officers whether elective or appointive, shall immediately cease and determine." However, general laws affecting the municipality were rendered inoperative only to the extent that they were "contrary to or inconsistent with" the Walsh Act. L. 1911, c. 221, sec. 18 (see R.S. 40:71-10). In addition it expressly continued as powers of the board of commissioners those powers theretofore had and exercised by the officers, boards and bodies replaced by the board of commissioners. L. 1911, c. 221, sec. 4 (see R.S. 40:72-2). A city that adopted the commission form of government under the Walsh Act was given "* * * all powers necessary for its government not in conflict with the laws applicable to all cities of this State. * * *" L. 1911, c. 221, sec. 8 (see R.S. 40:72-3). The board of commissioners was authorized to create subordinate boards. It was also authorized to "appoint such officers as it may deem necessary for the proper and efficient conduct of the affairs of the city," L. 1911, c. 221, sec. 4 (see R.S. 40:72-7), but the date of inception of a term of office, and the duration thereof, were not placed in the commissioners' hands, although the salary of officers was left to their determination. L. 1911, c. 221, sec. 4 (see R.S. 40:73-6). Appointment was required to be with reference to qualifications and fitness and without reference to political faith or party affiliation. L. 1911, c. 221, sec. 9 (see R.S. 40:73-1).

The legislative intent expressed in the Walsh Act was to effect municipal reform, but not ...

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