Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
Plaintiff, William F. Connors, brought an action in lieu of prerogative writ as an employee and a taxpayer of the City of Bayonne to test the validity of his removal as comptroller and the legality of the appointment of the defendant, Lucius E. Jenkins, to replace him. The trial court held that Connors did not have tenure and that his employment was for a fixed term which had expired prior to the naming of Jenkins. Consequently judgment was entered for the defendants.
In 1906 the City of Bayonne was governed by a Mayor and Council. On October 26 of that year an ordinance was adopted creating the office of comptroller. It seems plain from the language thereof that it was done pursuant to L. 1880, c. 112, p. 142, (R.S. 40:171-34, 35, 36 and 37), although the salary may not have conformed therewith. (Compare section one of ordinance and section one of the act, R.S. 40:171-34).
With respect to term, the ordinance provided that "his term of office shall be for the period fixed from time to time by the Mayor and Council, or prescribed by law." The statute
says he "shall hold his office for the term of three years and until his successor is elected and qualified." R.S. 40:171-35.
Under the 1880 Act and the ordinance the comptroller held a responsible, important executive position. He might well have been classified as a principal executive officer. He had "control of the fiscal concerns of all departments, bureaus, and officers of the city." R.S. 40:171-37; ordinance, sec. 3. (Emphasis ours.)
The ordinance continued in force until January 19, 1915 when it was repealed. The reason assigned for the action was that the "office is unnecessary and for reasons of economy should be abolished, and the duties thereof performed by the City Treasurer." The repealer said also that the "office of Comptroller is hereby abolished and the term of office of the incumbent thereof is hereby terminated." It may be noted also that at this time Bayonne was undoubtedly in the process of assuming the commission form of government. The parties have stipulated that since March 19, 1915 the city has been governed under the Walsh Act.
A board of commissioners in a municipality operating under that act acquires all administrative, judicial and legislative powers previously possessed by a mayor and council and has complete control over the affairs of the city. R.S. 40:72-2, 3. Also, it has all authority necessary to the government thereof "not in conflict with the laws applicable to all municipalities or the provisions of the constitution and, in addition to the powers conferred by [the Home Rule Act, R.S. ] 40:42-1 et seq. , may make, amend, repeal and enforce ordinances" for certain other general purposes which need not be detailed.
These powers of government were distributed into five departments, one being the department of revenue and finance. R.S. 40:72-4. In municipalities having a comptroller, the office would naturally -- although probably not mandatorily -- fall into the jurisdiction of the director of revenue and finance. Oliver v. Daly , 103 N.J.L. 52 (E. & A. 1926).
Between January 19, 1915 and May 29, 1917 Bayonne had no ordinance relating to the appointment of a comptroller.
In June 1916 the Court of Errors and Appeals in Feeney v. Burke , 89 N.J.L. 359, declared that where the commission form of government had been adopted, a substantial decline was produced thereby in the stature and importance of a comptroller. He became "a mere employee of the commissioners"; he was no longer a principal executive officer.
On March 27, 1917 the Legislature enacted the Home Rule Act (R.S. 40:42-1 et seq.). It is clear that under the general powers conferred by Article XIV, section 1, thereof (R.S. 40:48-1) a board of commissioners established under the Walsh Act may adopt an ordinance designed for the appointment of a comptroller. Toomey v. McCaffrey , 116 N.J.L. 364 (Sup. Ct. 1936).
In any event on May 29, 1917, just two months after the Home Rule Act came into being, Bayonne promulgated a new ordinance covering the appointment of a comptroller. At this time the subordinate status, as a mere employee, of a comptroller in a commission-governed city was public knowledge by reason of Feeney v. Burke, supra. That the governing body was aware of his subservience to the director of revenue and finance readily appears from the language of the new enactment. No longer did he have control over the fiscal ...