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Gill v. Board of Education of Township of Hamilton

Decided: February 27, 1957.

HENRY F. GILL, PLAINTIFF-RESPONDENT,
v.
THE BOARD OF EDUCATION OF THE TOWNSHIP OF HAMILTON, IN THE COUNTY OF MERCER AND STATE OF NEW JERSEY, AND WILLIAM HENRY LAWTON, DEFENDANTS-APPELLANTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.

Conford

The Law Division held that plaintiff holds tenure as attorney for the Board of Education of the Township of Hamilton as a war veteran under the provisions of N.J.S.A. 38:16-1. The defendants appeal on the single ground that plaintiff's appointments to this position, properly construed, were each for a fixed term and that in such case the statute by its terms does not confer tenure.

Plaintiff's first appointment was made by resolution of the Board June 24, 1954 "for a term of one (1) year beginning July 1, 1954"; the second, by resolution dated June 8, 1955, to the effect that "Henry F. Gill be, and he hereby is, appointed Attorney for the Board," etc. , "to succeed himself, and to commence July 1, 1955 * * *."

Plaintiff was subsequently removed as attorney for the Board without charges or hearing by a resolution which recited, among other grounds for removal, that he had been last appointed on a motion voted upon by a member of the Board who was also a law partner of the appointee, which

constituted the appointment illegal. At the same time the Board adopted another resolution appointing William H. Lawton as its counsel for a term from March 20, 1956 to June 30, 1959.

Plaintiff makes two contentions: (1) that his 1954 appointment amounted to an appointment without term, for the reason that the Board had no authority to fix a term for his employment; and (2) that, in the alternative, his 1955 appointment, having been made without fixing a term, constituted his employment one without term, giving him tenure under the act cited. It is undisputed that the plaintiff is an honorably discharged veteran of World War II.

The first contention is without merit. N.J.S.A. 18:6-27 specifically authorizes a Board of Education to appoint "other officers, agents, and employees as may be needed, and may fix their compensation and terms of employment * * *." The position of attorney for the Board is not one of those with respect to which the Board is mandatorily required by the statute to make an appointment and fix a term, as, for example, a medical inspector, Talty v. Board of Education of School Dist. of City of Hoboken , 10 N.J. 69 (1952), and the employment therefore falls in the residual category of N.J.S.A. 18:6-27 covering other officers, agents and employees as to whom the Board may fix terms of employment. Consequently, if there were nothing before us other than the 1954 appointment, under which the plaintiff was appointed for a term of one year, he would have no case.

As to the 1955 appointment, it is apparent that it does not, on its face, purport to fix a term. In Fox v. Board of Education of Newark , 129 N.J.L. 349 (Sup. Ct. 1943), affirmed 130 N.J.L. 531 (E. & A. 1943), it was held that a veteran employed as legal assistant to a Board of Education by a resolution which did not fix a term obtained tenure under the statute. It is argued on behalf of the defendant Board, however, that the 1955 appointment must be deemed intended to have been made on the basis of a one-year term. Reliance is had upon the phrase, "to succeed himself," in the resolution. It is contended that this imports an appointment

to the identical kind of position and for the same term as that which the appointee held before the reappointment. No authority is cited which would justify the construction advanced. To "succeed," in this context, means "to follow (one) next after, as by being the heir or the elected or appointed successor," Webster's New International Dictionary. While succession implies the vesting of all of the incidents of a position or office, it does not of itself create any. What the appointee takes depends upon the nature of the office. If it is one which has been created by or under law and has legally fixed incidents, including a specified term, as is the case with many constitutional and statutory offices, the appointment of an individual to such an office carries the term as well, not by virtue of the use of the word, "succeed," in the appointment, but by virtue of the appointment itself. In the present case the statute authorizing the appointment, N.J.S.A. 18:6-27, plainly contemplates the fixing of terms of employment for the officer or employee, as to such employees as plaintiff, not for the office or employment itself. The statute provides that the Board may appoint officers, agents and employees as may be needed "and may fix their compensation and terms of employment" (emphasis supplied). Nothing that the defendant Board did prior to the 1955 appointment of the plaintiff can, therefore, be regarded as a fixing of the term for an office of attorney or counsel, but only as the fixing of the terms of service of the particular persons theretofore appointed from time to time as attorney or counsel.

The defendant Board cites Board of Education of Cedar Grove v. State Board of Education , 115 N.J.L. 67 (Sup. Ct. 1935), to illustrate that a resolution of appointment can be construed to fix a term of employment notwithstanding that the language used does not do so expressly, where the background and circumstances surrounding the employment indicate that a term was intended. Such an intention was found in that case on the basis of a long series of prior ...


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