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Wagner v. Borough of Lodi

Decided: June 15, 1959.

FRANK WAGNER, PLAINTIFF-RESPONDENT,
v.
BOROUGH OF LODI AND JOHN DI MARIA, DEFENDANTS-APPELLANTS



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

Foley

In this action in lieu of prerogative writ the Law Division set aside resolutions adopted by the borough council on April 28, 1958 which terminated the services of the plaintiff as borough attorney and appointed Di Maria in his stead. Defendants appeal. The basic question involved is whether plaintiff, an honorably discharged veteran, was protected from such action by the Veterans' Tenure Act, N.J.S.A. 38:16-1.

Wagner was appointed borough attorney by resolution of the council on November 22, 1955 at an "annual retainer" of $1,000 per annum. Six days later another resolution was adopted in which with respect to the retainer the prior resolution was "corrected to read" $500 per annum instead of $1,000. Neither resolution stated what the plaintiff's duties were to be nor what he was to do, if anything, for the retainer. While the amount of the retainer is small, it was contemplated that the fees payable to the attorney for services rendered would approximate $10,000 per annum. The parties stipulated that the council has not at any time provided by ordinance for the office, the duties thereunder, or the compensation or emoluments thereof.

Of first importance is a determination of whether an ordinance is a sine qua non to a valid appointment to the office in question. It is well established that there cannot be a de facto officer without a de jure office. Handlon v. Town of Belleville , 4 N.J. 99 (1950). So, too, is it settled that a municipal office, if not created by statute, can come into being only by ordinance. Jersey City v. Dept. of Civil Service, post.

Thus our attention is drawn to the statutes which bear upon the question. The Borough of Lodi was incorporated under the provisions of N.J.S.A. 40:86-1 et seq. The

appointment of a borough attorney is optional under N.J.S.A. 40:87-15, wherein it is provided that the borough attorney and other enumerated officers shall:

"* * * hold office during the pleasure of the Council. * * * Unless sooner removed however they shall hold office for 1 year and until their successors shall have qualified."

N.J.S.A. 40:87-60 authorizes the fixing of the salaries of the mayor and councilmen of the borough by ordinance, limiting the amount of the same, and also provides that:

"All other officers shall be paid such salary or compensation as the council may by ordinance fix."

N.J.S.A. 40:87-60.1 prescribes that:

"Any such ordinance shall become operative in 10 days after the publication thereof after its final passage, unless within said 10 days, a petition, signed by the electors of such borough equal in number to at least 10% of the entire vote in the last preceding general election, protesting against the passage of such ordinance, be presented to the governing body, in which case such ordinance shall remain inoperative unless and until a proposition for the ratification thereof shall be adopted at the next general election by a majority of the qualified voters voting on said proposition."

In October 1955 the municipal manager form of government was adopted by the voters of Lodi under N.J.S.A. 40:80-1 et seq. ...


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