On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Weintraub, and Justices Wachenfeld, Burling, Francis and Proctor. For reversal -- Justice Heher. The opinion of the court was delivered by Weintraub, C.J.
Plaintiff sued to establish his right to the office of magistrate of the Municipal Court of Jersey City and to recover pay for the period following his purported ouster. The trial court found for plaintiff and the Appellate Division affirmed. 48 N.J. Super. 280 (1958). We granted defendant's petition for certification. 26 N.J. 169 (1958).
At the trial level the narrow issue was whether the city could terminate plaintiff's appointment during his term of office. Before the Appellate Division, defendant sought also to contend that the office of magistrate was never created,
and before us seeks to project still another issue, that pay must be denied for want of a salary ordinance.
The controversy turns upon the provisions of chapter 264 of the Laws of 1948. That act deals comprehensively with municipal courts and was designed to replace a haphazard set of local courts with a more effective system as part of a statewide judiciary, in implementation of the Constitution of 1947. Board of Health, Weehawken Township v. New York Central Railroad Co., 10 N.J. 284, 289-290 (1952). Its provisions, as amended, appear in N.J.S. 2 A:8-1 et seq.
N.J.S. 2 A:8-1 provides that any municipality may by ordinance establish a municipal court. Section 15 of chapter 264 (in its later form it is N.J.S. 2 A:8-2) ordained that existing police, magistrate and recorder's courts shall be continued until the expiration of the term of the holder of the judicial office or until December 31, 1948, whichever is later, "unless prior thereto the municipality has established a municipal court in accordance with the provisions of this act." On December 21, 1948 the city adopted an ordinance establishing the municipal court and providing for appointment of magistrates by resolution of the board of commissioners.
The ordinance was silent as to the number of magistrates. In fact Jersey City had had three magistrates for many years pursuant to express legislative action. N.J.S. 2 A:8-5 provides that "Each municipal court shall have a judge" and N.J.S. 2 A:8-6 provides that in a municipality having a population of more than 200,000 "the governing body * * * may provide for the appointment, as the need may appear, of not more than 3 additional magistrates of a municipal court of such municipality." The population of Jersey City exceeds 200,000. On January 18, 1955 the governing body adopted a resolution referring to N.J.S. 2 A:8-6, reciting the need for a fourth magistrate and appointing plaintiff "a Magistrate of the Municipal Court of Jersey City for a term of three (3) years" effective at once.
This litigation was precipitated by a resolution of June 18, 1957 which stated that the conditions recited in the resolution of 1955 no longer obtained and that "for the reasons hereinabove stated and by reason of economy" the services of plaintiff and also of Magistrate Robert H. Wall "are no longer required and the best interests of the City of Jersey City will be served by their termination." It was thereupon
"RESOLVED that the appointments of Harold Krieger, as Magistrate of the Municipal Court of the City of Jersey City, and Robert H. Wall, as Magistrate of the Municipal Court of the City of Jersey City, be and the same hereby are terminated, effective immediately, and that all matters coming before the Municipal Court of the City of Jersey City be heard and determined by the remaining magistrates of the Municipal Court of the City of Jersey City."
Plaintiff was the senior judge in office and Wall was junior to the other magistrates. Insofar as plaintiff is concerned, the action is clearly arbitrary. If the power to terminate be assumed, still no warrant would exist to cut short the term of the senior incumbent. Defendant argues that since the resolution appointing plaintiff recited the need for a fourth magistrate because of litigation arising out of a building and redevelopment program and the enforcement of the local code, and since the terminating resolution found that particular need no longer existed, it was proper to eliminate plaintiff. But the occasion for plaintiff's appointment did not limit his authority to exercise the entire jurisdiction of the court. Notwithstanding the direction that the court sit in parts where there ...