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Township of Madison v. Fiore

Decided: October 26, 1970.

THE TOWNSHIP OF MADISON, IN THE COUNTY OF MIDDLESEX, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GEORGE FIORE, DEFENDANT-APPELLANT



Sullivan, Labrecque and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

On February 21, 1966 the municipal manager of Madison Township appointed defendant Fiore tax assessor of the township, without stating what the length of his term was to be. The township is a Plan E Faulkner Act municipality (N.J.S.A. 40:69A-114.1 et seq.). On February 11, 1970 the municipal manager dismissed Fiore, claiming that N.J.S.A. 40:69A-95 gave him the right to do so at his pleasure. Fiore claimed that L. 1938, c. 386 (N.J.S.A. 40:46-6.2, 6.3) gave him a term of four years from July 1, 1966. The trial court held that this statute did not apply to Plan E municipalities. It also rejected Fiore's alternative arguments that he had tenure under N.J.S.A. 54:1-35.25 et seq. , or under the Veterans Tenure Act, or under the township's ordinance. Fiore appeals, but abandons all claims except the one based on N.J.S.A. 40:46-6.2. We hold that that statute did give him a four-year term and reverse.

N.J.S.A. 40:46-6.2 and 6.3 provide:

The term of persons holding the position or office of "tax assessor" in any municipality of this State is fixed at four years. * * *

Any person now holding the position or office of "tax assessor" in any municipality of this State, and any person who may be hereafter appointed to, or elected to the position or office of "tax assessor" in any municipality of this State, shall hold their said office for a term of four years from the first day of July next following said election or appointment.

The term "tax assessor" as used in this act shall be construed to mean and include assessors, members of the boards of assessors, and all other persons charged with the duty of assessing real and personal property for taxation in each municipality of this state, and this act shall be construed and applied to include tax assessors in all municipalities of this State, irrespective of the form of government under which such municipalities may operate. * * *

N.J.S.A. 40:69A-95 provides that the municipal manager of a Plan E municipality has the power to "appoint and remove * * * all department heads and all other officers, subordinates, and assistants for whose selection or removal no

other method is provided in this article * * *." It is agreed that said article contains no express provision for the selection or removal of tax assessors -- indeed, assessors are nowhere mentioned in it. Therefore, argues the township, N.J.S.A. 40:69A-95 gave the manager the right to dismiss the assessor whenever he pleased, and N.J.S.A. 40:46-6.2, 6.3 did not stand in the way because it was passed in 1938 and the Faulkner Act, which was passed in 1954, superseded it insofar as Plan E municipalities were concerned. For this proposition the township relies upon Smith v. City Council of Hackensack , 70 N.J. Super. 209 (App. Div. 1961), certif. den. 36 N.J. 300 (1962). However, the statute involved in Smith, N.J.S.A. 40:81-11, not part of the Faulkner Act, expressly stated that in municipalities organized under 40:81-11 the municipal council "shall appoint * * * an assessor, or where required by law a board of assessors * * *. All such officers appointed by the council shall hold office during the pleasure of the Council." Section 40:80-12 of the same act provided that "no law, general or special * * * contrary to or inconsistent with the provisions hereof shall apply to such municipality * * *." Section 40:79-5 of the same act was to the same effect. Therefore, we held in Smith that 40:46-6.2, passed in 1938, before the 1942, 1953 and 1957 reenactments of 40:81-11, did not apply to the city of Hackensack. There are no such explicit provisions in 40:69A-95 -- no reference to assessors and no statement that appointees serve during the pleasure of the manager. True, it says the manager may remove his appointees, but that does not necessarily mean he may do so at his pleasure when the appointee has a fixed term under another, general, law.

N.J.S.A. 40:69A-26 provides that Faulkner Act municipalities are governed by "all applicable provisions of general law." 40:69A-28 defines general law as "any law or provision of law, not inconsistent with this act, heretofore or hereafter enacted which is by its terms applicable or available to all municipalities and the following additional laws whether

or not such additional laws are so applicable or available to all municipalities: legislation relating to taxation * * *."

We hold that N.J.S.A. 40:46-6.2, 6.3 is such a general law. As the Supreme Court said in Clifton v. Zweir , 36 N.J. 309, 322 (1962): "Judicial resolution of such matters must be guided by only one principle: legislative intent." There can be no doubt that when the Legislature adopted N.J.S.A. 40:46-6.2, 6.3, in 1938, it intended that all assessors in all municipalities thereafter have four-year terms, for the statute said so. To make it doubly plain, N.J.S.A. 40:46-6.3 directed that it was to "be construed and applied to include tax ...


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