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Gannon v. Township of Saddle Brook

Decided: May 25, 1959.

JAMES P. GANNON, PLAINTIFF-APPELLANT,
v.
THE TOWNSHIP OF SADDLE BROOK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, ET AL., DEFENDANTS-RESPONDENTS



Price, Gaulkin and Foley. The opinion of the court was delivered by Foley, J.A.D.

Foley

Plaintiff James P. Gannon brought an action in lieu of prerogative writs to test the validity of his removal as superintendent of public works and the legality of the appointment of the defendant, Frank Calandrillo, to replace him in this office. The trial court held that Gannon did not have tenure and that his employment was for a fixed term which expired prior to the naming of Calandrillo. Appeal is taken from the resulting judgment in the defendants' favor.

The essential facts are not in dispute. On January 24, 1955 the township committee of Saddle River (now Saddle Brook) adopted an ordinance creating the office of superintendent of public works which provided:

"Section 1. The Township Committee shall appoint some fit person as Superintendent of Public Works who shall be a resident of the Township.

Section 2. Said Superintendent shall have supervision over the repair and maintenance of public roads and highways of the Township and his duties shall include the supervision of repairs and maintenance of the Township water mains, sewer mains, laterals and other appurtenances, as well as storm drains, ditches and other public works. The said Superintendent shall also supervise maintenance and repair of other public works at the direction of the Township Committee."

At the same meeting plaintiff was appointed to the office "retroactive as of January 1, 1955." No provision was made for a term of office. On January 2, 1956, at its organization meeting, the governing body adopted a resolution appointing Gannon for a term expiring on December 31, 1956. On January 1, 1957 a similar resolution was adopted

naming him for a one-year term. On January 1, 1958 Calandrillo was appointed for a one-year term.

The basic problem to be resolved concerns the length of the term of office of the superintendent of public works under the 1955 ordinance. Specifically, the question posed is whether the appointment which Gannon received when the ordinance was adopted was for an indefinite term. The importance of the query arises from the fact that Gannon as an honorably discharged veteran is entitled to the benefits of N.J.S.A. 38:16-1 which proscribes the severance from employment of an honorably discharged veteran holding an office or position under state, county or municipal government, the term of which is not fixed by law, except for good cause shown after a fair and impartial hearing. The appellant argues, and we agree, that if the original appointment was for an indefinite term he enjoys tenure of office and all subsequent appointments purporting to fix a term were of no legal effect. Connors v. City of Bayonne, Hudson County , 36 N.J. Super. 390, 398, 399 (App. Div. 1955); Sheridan v. McCurnin , 124 N.J.L. 493 (Sup. Ct. 1940). If, on the other hand, as respondents contend, the office held by the appellant was one to which a fixed term attached by legislative mandate, it is manifest that the action must fail. Cf. Township of Woodbridge v. Civil Service Commission , 4 N.J. Super. 111 (App. Div. 1949); McGrath v. City of Bayonne , 85 N.J.L. 188 (E. & A. 1913); Salter v. Burk , 83 N.J.L. 152 (Sup. Ct. 1912). See also Talty v. Board of Education of School Dist. of City of Hoboken , 10 N.J. 69 (1952).

The respondent municipality was incorporated as a township and is governed by the provisions of N.J.S.A. 40:145-1 et seq. , which we shall refer to as the "Township Act." The pertinent sections of this act are:

"40:145-12. In addition to the officers to be elected the township committee may appoint and employ a township attorney, a township engineer, a township building inspector, a township physician and

a treasurer. All such officers except the township attorney, engineer and building inspector must be ...


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