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Giannone v. Carlin

Decided: January 30, 1956.

ERNEST N. GIANNONE, PLAINTIFF-APPELLANT,
v.
LEO P. CARLIN, AS MAYOR OF THE CITY OF NEWARK, NEW JERSEY, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Appellate Division.

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

Oliphant

This is an appeal from a judgment of the Appellate Division which affirmed a judgment of the Superior Court, Law Division, determining that the appellant was not entitled to tenure under R.S. 38:16-1 and R.S. 38:23 A -3.

We granted certification under R.R. 1:10-2(d)(e).

The appellant is an honorably discharged veteran of World War II. By a resolution of the board of commissioners of the respondent city, dated May 27, 1953, he was appointed "Housing Manager of the Veterans' Temporary Housing of the City of Newark at an annual salary of $5,600.00 * * * to fill a vacancy now existing." He continued in such position or work until July 22, 1954, when he was advised by a letter of the Mayor, Leo P. Carlin, that his employment "will terminate at the close of business on July 31, 1954." The vacancy which he was appointed to fill apparently was created under the following conditions.

On September 10, 1947 by ordinance the city created "A Temporary 'Office of Veterans' Temporary Housing Administration'" in accordance with the contracts entered into between the City of Newark and the Public Housing and Development Authority of the State of New Jersey, which office it stated:

"shall * * * expedite the veterans' temporary housing program and administer the use, occupancy and maintenance of housing units thereunder provided."

Paragraph 2 of this ordinance created the "temporary position of 'Housing Manager' at an annual salary of not less than $6,000.00." The ordinance further provided:

"7. The 'Office of Veterans' Temporary Housing Administration' established hereunder, shall cease and determine not more than one year from the effective date of this ordinance, and all temporary positions herein provided, and the rights of any and all persons then in occupancy of any and all of said temporary positions, shall thereupon cease and terminate, subject, in any event, to an earlier determination thereof by the Board of Commissioners of said 'Office of Veterans' Temporary Housing Administration' and the aforesaid temporary positions created therein."

This ordinance was enacted pursuant to L. 1946, c. 323, which declared an emergency and which had for its purpose the providing for veterans of sufficient emergency housing under the program set forth therein.

Thereafter, on August 25, 1948 the city passed an ordinance, No. 8237, extending the life of the "Office of Veterans' Temporary Housing Administration" for a period of two years until September 1950, which contained similar language to that in the prior ordinance with respect to the termination of temporary positions. It is thus obvious that the resolution of May 27, 1953, appointing the appellant as "Housing Manager of the Veterans' Temporary Housing of the City of Newark," did not expressly or impliedly create the temporary position to which the appellant was thereby appointed. Up to this point no ordinance provided for the creation of a permanent position so titled.

On October 14, 1953 the city adopted an ordinance, No. 961, "An Ordinance to Amend an Ordinance Entitled: 'An Ordinance creating permanent positions in the Office of the Director of the Department of Public Affairs, Bureau of Health, Newark City Hospital, Convalescent Hospital, Ivy Haven, Division of Welfare, Federal ...


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