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McCartney v. Franco

Decided: March 9, 1965.

JOSEPH B. MCCARTNEY, JR., PLAINTIFF-APPELLANT,
v.
NICHOLAS H. FRANCO, INDIVIDUALLY AND AS MAYOR OF THE CITY OF ORANGE, AND THE CITY OF ORANGE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



Conford, Kilkenny and Lewis. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

Plaintiff appeals from that part of a final judgment of the Superior Court, Law Division, 82 N.J. Super. 570 (1964), which adjudicated that his office as a member of the board of assessors of the City of Orange was abolished by ordinance on July 30, 1963, thereby disentitling him to further employment as a member of that board.

Plaintiff contends: (1) the abolition of his office as a member of the board of assessors is barred by statute; (2) the city failed to comply with N.J.S.A. 40:171-180.1 et seq., in changing from a board of assessors to a single assessor; and (3) the ordinance of July 30, 1963 failed to operate to abolish his office.

The facts are not in dispute. By ordinance, made effective September 15, 1933, the city created a board of assessors consisting of three members. On January 25, 1963 plaintiff was appointed a member of the board of assessors and assumed office on February 1, 1963. At that time, the board of assessors was assigned to the Department of Revenue and Finance. Orange then operated under the Commission form of government. However, on June 19, 1962 the voters of Orange had adopted a Mayor-Council Plan C form of government, pursuant to the Faulkner Act, N.J.S.A. 40:69A-55 et seq., to become effective July 1, 1963, in place of the Commission. As the result of an election held on June 18, 1963, defendant Nicholas H. Franco became Mayor. He and the new Council assumed office on July 1, 1963.

On July 1, 1963 Mayor Franco notified plaintiff by registered letter that, "upon the adoption of the new form of government of the City of Orange, N.J., in accordance with the Statute, your services as tax assessor is hereby terminated." On the same date, according to the agreed statement in lieu of record, the City Council, by ordinance, continued in existence all departments, boards and offices previously in existence under the Commission form of government, "with the sole exception of the Board of Assessors." Also on July 1, 1963 the Council adopted a resolution to provide for the

temporary organization of the city government, pending the preparation of an administrative code. Section VII of said resolution, entitled "Statutory Boards and Commissions," provided "* * * except that the Board of Assessors shall not be deemed a statutory board continued by this section."

On July 30, 1963 the City Council adopted an ordinance entitled "An ordinance to Provide for the Temporary Organization of the City Government pending the preparation of an Administrative Code." In this ordinance, section VII of the aforesaid resolution of July 1, 1963 was incorporated verbatim.

On October 2, 1963 the City Council adopted an ordinance establishing an "Administrative Code" and in section 5.3 thereof, entitled "Division of Assessments," provided that such division would be in the Department of Finance and the head of the division "shall be the city assessor." While there was no provision in this Administrative Code expressly abolishing the old board of assessors, plaintiff agrees, although at the same time disputing the legal validity thereof, that the new code did effect a change from the former three-member board of assessors to a single city assessor, especially since prior ordinances inconsistent with the Administrative Code were expressly repealed thereby.

At all times relevant herein, the City of Orange has been subject to the provisions of the Civil Service Act, N.J.S.A. 11:1-1 et seq.

Orange is classified as a city of the second class. Its population, according to the 1960 Federal census, was 35,789. It is stated in the agreed statement in lieu of record, "At no time subsequent to 1930, and up to the present, has the population of the Defendant City of Orange been more than 50,000, nor less than 35,000."

I.

N.J.S.A. 40:46-6.2 prescribes a fixed term of four years for the office of tax assessor. The ...


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