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Devita v. Housing Authority

Decided: January 31, 1955.

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



For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

The Appellate Division, in an opinion reported in DeVita v. Housing Auth. of Paterson, 31 N.J. Super. 394 (1954), held that the plaintiff's indefinite appointment as secretary-treasurer and executive director of the Housing Authority of the City of Paterson did not give him the benefits of the Veterans' Tenure Act; it accordingly affirmed the summary judgment which the Law Division had entered in favor of the authority. We granted certification under R.R. 1:10-2. See 16 N.J. 207 (1954).

The Paterson Authority was created by municipal resolution in 1941 pursuant to the provisions of the Local Housing Authorities Law. See L. 1938, c. 19; N.J.S.A. 55:14 A -1 et seq. That act declared the urgent public need for the construction of housing projects for persons of low income and was designed to implement the far-reaching national housing program which contemplated federal loans and subsidies to local public housing agencies. 42 U.S.C.A. ยง 1401 et seq.; Tretter, Public Housing Finance, 54 Harv. L. Rev. 1325, 1329 (1941). Its constitutionality was readily sustained in Romano v. Housing Authority, Newark, 123 N.J.L. 428 (Sup. Ct. 1939), affirmed 124 N.J.L. 452 (E. & A. 1940), where the court recognized the intimate relationship between decent housing and the public welfare and upheld vital provisions of the act as proper exercises of the police power. See Ryan v. Housing Authority of Newark, 125 N.J.L. 336, 343 (Sup. Ct. 1940); Con Realty Co. v. Ellenstein, 125 N.J.L. 196, 200 (Sup. Ct. 1940). Cf. Robinson and Weinstein, The Federal Government and Housing, 1952 Wis. L. Rev. 581, 583; Foley, Low-Rent Housing and State Financing, 85 U. of Pa. L. Rev. 239, 251 (1937); Gillette, Public Housing in New Jersey, 64 N.J.L.J. 541 (1941).

Paragraph 5 of the act (L. 1938, c. 19, p. 69; N.J.S.A. 55:14 A -4) set forth that the governing body of any municipality may, by resolution, create a local housing authority and that it "shall constitute an agency and instrumentality of the municipality" creating it. It also prescribed that five persons shall be designated as commissioners of the authority and that their terms shall be one, two, three, four and five years, respectively. The term of each succeeding commissioner was fixed at five years, with any vacancy being filled for the unexpired term. Paragraph 7 of the act (L. 1938, c. 19, p. 72; N.J.S.A. 55:14 A -6) set forth that the authority may employ a secretary (who shall be executive director) and other employees and officers and "shall determine their qualifications, duties and compensation." No fixed term for the secretary was prescribed in the act and the statutory power to determine his qualifications, duties and compensation did not expressly include his term. Paragraph 8 of the act set forth that the authority "shall constitute a public body corporate and politic, exercising public and essential governmental functions" and that its powers shall include that of making, amending and repealing "bylaws, rules and regulations, not inconsistent with this chapter." L. 1938, c. 19, p. 73; N.J.S.A. 55:14 A -7. The authority did adopt by-laws which provided in section 1 that its officers shall be a chairman, a vice-chairman, and a secretary-treasurer; in section 4 that the secretary shall be the executive director and, as such, have general supervision over the administration of its business and affairs, subject to the direction of the authority; in section 6 that any person appointed to fill the office of secretary "shall have such term as the Authority fixes"; and in section 7 (as it appeared in the authority's appendix) that vacancies shall be filled as follows:

"Should the offices of the Chairman or Vice Chairman become vacant, the Authority shall elect a successor from its membership at the next regular meeting and such election shall be for the unexpired term of said office. When the office of Secretary-Treasurer

becomes vacant, the Authority shall elect a successor from its membership at the next regular meeting and such election shall be for the unexpired term of said office. When the office of Secretary-Treasurer becomes vacant, the Authority shall appoint a successor, as aforesaid."

On March 31, 1942 John E. Quinn was appointed as acting-executive director "at the will of the Housing Authority and until such time as a permanent Executive Director is appointed." On May 26, 1942 James D. Ward was employed as secretary for a period of one year. On May 13, 1943 George Brooks was appointed executive director without any stated term of office. On February 13, 1951 the authority adopted a resolution which stated that whereas the offices of secretary and treasurer had become vacant due to the death of George Brooks, and whereas it was necessary that a successor be appointed:

"Now, THEREFORE, BE IT RESOLVED by the Commissioners of the Housing Authority of the City of Paterson that Romeo T. DeVita be and he hereby is appointed Treasurer of the Housing Authority of the City of Paterson, and that he be and hereby is selected, appointed and employed as Secretary of the Housing Authority of the City of Paterson effective February 15, 1951, and that in such capacity, he performs all the duties of Treasurer, Secretary and Executive Director in compliance with the by-laws of the Housing Authority of the City of Paterson, statutes of the State of New Jersey, and the rules and regulations of the Public Housing Administration."

The aforesaid resolution appointing the plaintiff Romeo DeVita did not seek to fix any definite term of office and he continued to serve as secretary-treasurer and executive director until the authority adopted a resolution terminating his services "effective December 15, 1953." No charges were ever made against the plaintiff nor was he ever given a hearing; he is a disabled veteran, having served in World War II from August 25, 1942 to January 29, 1946 when he was honorably discharged, and he claims the protection of the Veterans' Tenure Act. R.S. 38:16-1; R.S. 38:23 A -3.

R.S. 38:16-1 affords veterans' tenure protection to state, county and municipal officers ...


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