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Allen v. Board of Commissioners

Decided: August 31, 1984.


Haines, A.j.s.c.


Plaintiff Barbara Van Allen is a tenured, certified tax collector for the Townships of Bass River and Woodland. She serves both communities by maintaining her office on a part-time basis and performing some of her work at home. Bass River has adopted a resolution providing in part as follows:

The Tax Collector be and is hereby directed to establish office hours five days a week for each month next preceding the month the day upon which taxes are due which by law do not become delinquent until the tenth day of the second month of the quarter for each of the four quarters in any calendar year which specifically means that between January 10th and February 10th, April 10th and May 10th, July 10th and August 10th, and October 10th and November 10th, the tax collector be and is hereby directed to maintain her office open during normal business hours which are 9:00 A.M. to 12:00 P.M. and 1:00 P.M. through 5:00 P.M. Mondays through Fridays during the aforementioned dates.

The collector has filed suit seeking to invalidate the resolution. This opinion disposes of the matter, there being no factual dispute, in response to an order to show cause obtained by her.

The tax collector is an officer, not an employee of the municipality. The statutes have always referred to the "office" of tax collector, e.g., N.J.S.A. 40A:9-141 to -145.12; N.J.S.A. 54:4-73 and -122.2; N.J.S.A. 40:73-9. References to "office" appear in the cases: Beirne v. Gangemi, 74 N.J. Super. 557 (App.Div.1962); McQueeney v. Raymond, 163 N.J. Super. 36 (App.Div.1978); Stevenson v. Bridgeton, 123 N.J.L. 219 (Err. & App.1939). An office is to be distinguished from a position or an employment. The distinction is set forth in Thorp v. Bd. of Trustees of Schools for Industrial Ed., 6 N.J. 498 (Sup.Ct.1951):

An office is a place in a governmental system "created or recognized by the law of the State which, either directly or by delegated authority, assigns to the incumbent thereof the continuous performance of certain public duties"; a position is analogous to an office "in that the duties that pertain to it are permanent and certain, but it differs from an office in that its duties may be

nongovernmental and not assigned to it by any public law of the State"; and an employment differs from both an office and a position "in that its duties, which are nongovernmental, are neither certain not permanent." Fredericks v. Board of Health, 82 N.J.L. 200 (Sup.Ct.1912). The test of a public office is whether the incumbent is "invested with any portion of political power partaking in any degree in the administration of civil government, and performing duties which flow from the sovereign authority." City of Hoboken v. Gear, 27 N.J.L. 265 (Sup.Ct.1859). [at 506-507]

It is apparent that the tax collector occupies an "office" pursuant to this definition: she occupies a place in our system of government created by statute and is charged with the continuous performance of permanent and certain public duties, namely, the collection of taxes.

This conclusion is important in addressing the present dispute. As the occupant of an office established by statute, the collector has two obligations: (1) to discharge responsibly the duties imposed upon her by statute and (2) to comply with all authorized regulations of the governing body of the municipality she serves. Such regulations are authorized only if the power to adopt them has been delegated by the Legislature to the municipalities. Ringlieb v. Parsippany-Troy Hills, 59 N.J. 348, 351 (1971).

The appointment of the tax collector, her term of office, and provisions for her tenure, as well as her removal, are set forth in N.J.S.A. 40A:9-141 to -145.12. The duties of the collector and the governing body relating to the collection of taxes are set forth in N.J.S.A. 54:4-64 to -133. The tax collector is required to:

Prepare and mail tax bills (§ 64); record tax payments on permanent records (§ 71) "be open at all reasonable times to public inspection" (§ 71); attend an office in a public building when the taxing district has such a building (§ 72); report collections to the municipality (§ 73); enforce the payment of personal property and dog taxes (§ 73). In her discretion, she may imprison taxpayers for nonpayment of personal property or dog taxes (§ 79) and may appoint a deputy for that purpose (§ 79). She may sell personal property and timber for nonpayment of taxes (§§ 84-90). She must file an annual statement covering taxes and collections (§ 91), publish a list of delinquents (§ 95), deposit tax collections in designated banks or trust ...

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