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Kagan v. Caroselli

Decided: June 30, 1959.

LOUIS R. KAGAN, PLAINTIFF-RESPONDENT,
v.
LOUIS P. CAROSELLI, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division.

For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J. Jacobs, J., concurring in result.

Weintraub

[30 NJ Page 373] This case involves competing claims to the office of magistrate in the City of Jersey City.

Plaintiff relies upon an appointment by the entire governing body while defendant claims an appointment by the director of public safety. The Law Division found for plaintiff. We certified the appeal taken to the Appellate Division.

The city has the commission form of government. Following the enactment of L. 1948, c. 264 (N.J.S. 2 A:8-1 et seq.), a comprehensive statute designed to replace a haphazard set of local courts by the present system of municipal courts, the city established a municipal court under the provisions of that act. The ordinance provided for appointment of the magistrates by resolution of the board of commissioners.

N.J.S. 2 A:8-5 provides that in municipalities other than ones governed by a mayor-council form of government the magistrate "shall be appointed * * * by the governing body of the municipality." Defendant however contends that, with respect to the commission form of government, "governing body" should be deemed to be the head of the department to which the municipal court was assigned at the organization meeting, here, the director of public safety.

Three provisions of the "Walsh Act" establishing the commission form of government, are pertinent. R.S. 40:72-2 reads:

"The board of commissioners established hereunder shall have all the executive, administrative, judicial and legislative powers and duties heretofore had and exercised by the mayor and city council and all other executive or legislative bodies in such municipality, and shall have complete control over the affairs of such municipality." (Emphasis added)

R.S. 40:72-4 provides:

"The executive, administrative, judicial and legislative powers, authority and duties in such municipality shall be distributed into and among five departments * * * as follows:

1. Department of public affairs.

2. Department of revenue and ...


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