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Tumulty v. City of Jersey City

Decided: October 22, 1959.


Goldmann, Conford and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.


[57 NJSuper Page 505] This action in lieu of prerogative writs involves competing claims to the office of housing commissioner of Jersey City. Defendant McLaughlin relies

upon his appointment by the governing body; plaintiff claims he was legally appointed by the Mayor, who is also the Director of the Department of Public Affairs. The Law Division entered judgment in favor of defendants, dismissing the complaint and adjudging that McLaughlin's appointment as a member of the Jersey City Housing Authority was an effective and legal appointment.

Jersey City operates under the commission form of government, R.S. 40:70-1 et seq. , as amended (also known as the Walsh Act). On May 17, 1938 the city, pursuant to the provisions of N.J.S.A. 55:14 A -1 et seq. , as amended (the Local Housing Authorities Law), adopted an ordinance creating the Housing Authority of the City of Jersey City. There was a municipal election in Jersey City in May 1957 at which five commissioners were elected. They took office and on May 21, 1957 held their first and organization meeting, at which time Charles S. Witkowski was elected Mayor and designated as Director of the Department of Public Affairs. The commissioners also unanimously adopted a resolution assigning the Housing Authority, along with other bureaus, agencies and boards, to the Department of Public Affairs and vesting in the Director "all the powers, authority, rights and duties vested in or given by any statute, charter, ordinance or resolution" relating to them.

On September 16, 1958 the board of commissioners, by resolution adopted by a 4-1 vote, the negative vote being that of Mayor Witkowski, appointed defendant McLaughlin a member of the Jersey City Housing Authority for a term of five years. McLaughlin took the oath of office, received his certificate of appointment from the city clerk, and filed the resolution of appointment and the certificate with the Housing Authority. On September 18, 1958 Witkowski, as Mayor and Director of the Department of Public Affairs, appointed plaintiff Tumulty to the same office. Tumulty took the oath of office and the city clerk certified the appointment. At the regular meeting of the Housing Authority held September 25, 1958 both Tumulty and

McLaughlin appeared and made claim to be seated as a member of the Authority. The Authority, by unanimous vote of all members present, seated McLaughlin, but refused to recognize Tumulty's appointment and returned his credentials to him. McLaughlin then took his seat as a member of the Housing Authority.

The single question to be determined is: Who has the power of appointment to fill a vacancy in the Housing Authority of the City of Jersey City? The Law Division judge concluded that the appointing power was in the governing body (the board of commissioners), and not in a single commissioner (the Director of Public Affairs), as plaintiff contends. We agree.

In 1937 Congress enacted the United States Housing Act, 42 U.S.C.A. § 1401 et seq. The policy expressed in the act was that of assisting the several states and their political subdivisions to alleviate and remedy unsafe and unsanitary housing conditions and the acute shortage of decent, safe and sanitary dwellings for families of low income in urban and rural nonfarm areas. § 1401. These aims were to be accomplished through loans (§ 1409) and annual federal contributions (§ 1410) to local public housing agencies.

The New Jersey Legislature made possible the acceptance of the federal offer of aid by enacting the Local Housing Authorities Law, N.J.S.A. 55:14 A -1 et seq. , a year after Congress had acted. This law, as our Supreme Court observed in DeVita v. Housing Authority of Paterson , 17 N.J. 350, 352 (1955), was "designed to implement the farreaching national housing program which contemplated federal loans and subsidies to local housing agencies. 42 U.S.C.A. § 1401 et seq. " Bearing in mind the conditions precedent which were to be performed by "the governing body of the locality involved," 42 U.S.C.A. §§ 1410(a), 1415(7)(b), the Legislature specifically defined "governing body" to mean, in the case of a municipality, "the common council or the board of commissioners or the body managing its affairs * * * provided, however , that in the case of

cities of the second class having a population of not less than one hundred thirty-three thousand nor more than two hundred thousand inhabitants, the board of finance of such city shall be the 'governing body' for the purpose of this act." R.S. 55:14 A -3(c), as amended. Thus, in every case, it is the governing body which acts jointly; in no case is it a member of the group.

The Legislature then went on to grant certain powers to the "governing body":

"Any governing body may, by * * * ordinance in the case of municipalities, create a body corporate and politic to be known as the 'Housing Authority of ' * * *. Such authority shall constitute an agency and instrumentality of the municipality * * * creating it. The authority shall consist of six members who shall be appointed and hold office for the terms as hereinafter provided. The governing body shall appoint five commissioners of the authority. * * *" (N.J.S.A. 55:14 A -4, as amended)

Nowhere in the Local Housing Authorities Law do we find any indication that this appointing power can be delegated.

Plaintiff's contention is that the assignment of the Housing Authority to the Department of Public Affairs, headed by Mayor Witkowski, was in accordance with the Walsh Act (R.S. 40:70-1 et seq.); that it carried with it the power to appoint members of the Authority; and thereby divested the board of commissioners of any authority to appoint such members. More specifically, the thrust of his argument is that the language of the Local Housing Authorities Act, and specifically N.J.S.A. 55:14 A -4, quoted above, must be read in pari materia with the Walsh Act; that the reference in N.J.S.A. 55:14 A -4 to the "governing body" means the governing body as its powers and duties have been delegated to the five main departments of local ...

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