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Smith v. City Council

Decided: November 13, 1961.

DAVID R. SMITH, PLAINTIFF-APPELLANT,
v.
CITY COUNCIL OF THE CITY OF HACKENSACK, AND THE CITY OF HACKENSACK, A MUNICIPAL CORPORATION OF THE COUNTY OF BERGEN, DEFENDANTS-RESPONDENTS. EDGAR H. SIMONSEN, ARTHUR E. ROMANO, ALBERT M. BOGATH AND JOHN A. NATIVO, PLAINTIFFS-APPELLANTS, V. CITY COUNCIL OF THE CITY OF HACKENSACK, AND THE CITY OF HACKENSACK, A MUNICIPAL CORPORATION OF THE COUNTY OF BERGEN, DEFENDANTS-RESPONDENTS. DAVID R. SMITH, PLAINTIFF-APPELLANT, V. HAROLD MCKENZIE, CITY COUNCIL OF THE CITY OF HACKENSACK, AND THE CITY OF HACKENSACK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



Price, Sullivan and Leonard. The opinion of the court was delivered by Sullivan, J.A.D.

Sullivan

[70 NJSuper Page 210] Plaintiff, David R. Smith, an honorably discharged veteran of the First World War was appointed tax assessor of the City of Hackensack on October 8, 1959, by resolution of the city council which also provided that he was to serve at the pleasure of the council. The City of Hackensack is a municipality operating under the municipal manager form of government. Its governing body

is a city council. At the time of Smith's appointment there was an ordinance in effect adopted on October 16, 1933, which established, inter alia , the office of city assessor but did not set forth the nature and scope of his duties or the amount of compensation to be paid. Cf. Wagner v. Lodi , 56 N.J. Super. 204 (App. Div. 1959) certif. denied 30 N.J. 599 (1959).

On January 19, 1960 the City Council of Hackensack adopted an ordinance establishing the office of tax assessor, outlining the duties thereof and fixing the compensation therefor. Said ordinance also purported to fix a four-year term for said office "as provided by R.S. 40:46-6.2." Thereafter the city council by resolution, adopted February 2, 1960, appointed Smith as tax assessor of the City of Hackensack "for the term prescribed by law."

On June 21, 1960 the city council repealed the ordinance adopted on January 19, 1960, and on August 16, 1960 the council adopted a resolution discharging Smith as tax assessor and naming the defendant Harold McKenzie as acting tax assessor. McKenzie served in that capacity until October 24, 1960, when Ralph T. Meloro was appointed tax assessor by resolution of the city council.

As a result of the foregoing, three actions were commenced and were consolidated for trial. Basically, these actions raise two issues. One -- does the tax assessor of a municipality operating under the municipal manager form of government, R.S. 40:79-1 et seq. , serve at the pleasure of the council in accordance with N.J.S.A. 40:81-11 (a section of the Municipal Manager Form of Government Act), or can he be given a four-year term of office in accordance with the provisions of N.J.S.A. 40:46-6.2 (an act relating to municipalities generally)? Two -- does the Veterans' Tenure Act, N.J.S.A. 38:16-1 et seq. , apply to the tax assessor of a municipality operating under the municipal manager form of government?

For convenience the statutory provisions herein considered are reproduced as follows:

Municipal Manager Form of Government Act

N.J.S.A. 40:80-12 (L. 1923, c. 113 as am.):

"No law, general or special, or any provision thereof, affecting the government of any municipality governed by this subtitle and contrary to or inconsistent with the provisions hereof, shall apply to such municipality, but the adoption of this subtitle shall not affect the application of chapter eight of Title 2A of the New Jersey Statutes."

N.J.S.A. 40:81-11 (L. 1923, c. 113, as am.):

"The municipal council shall appoint a municipal manager, an assessor, or where required by law a board of assessors, an auditor, a treasurer, a clerk, and an attorney. * * * All such officers appointed by the ...


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