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Devita v. Housing Authority

Decided: July 6, 1954.

ROMEO DEVITA, PLAINTIFF-APPELLANT,
v.
HOUSING AUTHORITY OF THE CITY OF PATERSON AND WILLIAM BENTELE, DEFENDANTS-RESPONDENTS



Eastwood, Freund and Francis. The opinion of the court was delivered by Francis, J.A.D.

Francis

[31 NJSuper Page 395] The issue on this appeal is two fold: (1) the validity of the appointment of appellant for an indefinite

term as secretary-treasurer and executive director of the respondent housing authority, and (2) whether, if such appointment was valid, appellant's veteran status gives him tenure during good behavior. The trial court entered summary judgment in favor of the authority.

The statute under which the housing authority was created provides that:

"It may employ a secretary (who shall be executive director), technical experts and such other officers, agents and employees, permanent and temporary, as it may require, and shall determine their qualifications, duties and compensation." N.J.S.A. 55:14 A -6.

The statute also confers on the authority the power:

"* * * to make and from time to time amend and repeal by-laws, rules and regulations, not inconsistent with this chapter, to carry into effect the powers and purposes of the authority." N.J.S.A. 55:14 A -7(a).

It will be observed that section 6 fixes no term for the executive director. In this situation the authority may by its bylaws establish the term or direct that upon appointment a term shall be fixed. Sheridan v. McCurnin , 124 N.J.L. 493, 499 (Sup. Ct. 1940); McGrath v. City of Bayonne , 85 N.J.L. 188, 192 (E. & A. 1913); Bohan v. Township of Weehawken , 65 N.J.L. 490, 493 (Sup. Ct. 1900); Hardy v. City of Orange , 61 N.J.L. 620, 622 (E. & A. 1898); Gilhooly v. Board of Chosen Freeholders of Hudson County , 43 A. 569 (Sup. Ct. 1899, not in official reports); Kennon v. Schlesinger , 182 S.W. 2 d 373 (Tex. Ct. Civ. App. 1944). When it does so, the bylaw has the force and effect of law (McGrath v. City of Bayonne, supra; Bell v. Atlantic City , 89 N.J.L. 443, 445 (Sup. Ct. 1916); Hardy v. City of Orange, supra), and the tenure prescribed or the duty imposed to set the term is binding on the authority and would control an appointment until the bylaw is amended or repealed.

Pursuant to section 7(a) of the act, bylaws were adopted by respondent. Section 4 of the bylaws says:

"Secretary-Treasurer. The Secretary shall be the Executive Director of the Authority * * *."

Section 6 provides:

"Any person appointed to fill the office of Secretary-Treasurer, or any vacancy therein, shall have such term ...


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