Burke v. KennyBurke v. Kenny
It appears that on June 17, 1947, the board of commissioners of the City of Jersey City adopted a resolution, the pertinent part of which follows:
“Resolved, That Francis X. Burke be and he hereby is appointed City Clerk оf the City of Jersey City at an annual salary of Seven Thousand Five Hundred Dollars ($7,500), payable in equal semimonthly installments, said appointment to take effect immediately;”
Plaintiff immediately entered into his duties and continued to serve until May 17, 1949, when at the organization meeting
The defendants have filed an answer denying plaintiff‘s right to the office of clerk and the matter is now before the court on plaintiff‘s motion for a summary judgment.
Plaintiff contends that, because he was not appointed for a definite term, his term of office was coterminus with that of the appointing board and, therefore, by virtue of the 1942 amendment to the Veterans’ Tenure Act (R.S. 38:16-1, as amended by P.L. 1942, c. 83) he is entitled to serve as clerk until he shаll be removed “for good cause shown after a fair and impartial hearing.” In support of his contention, plaintiff relies upon Fox v. Board of Education of Newark, 129 N.J.L. 349 (Sup. Ct. 1943); affirmed, 130 N.J.L. 531 (E. A. 1943).
R.S. 38:16-1 as amended by P.L. 1942, c. 83, reads as follows:
“Nо person now holding any employment, position or office under the government of this State, or the government of any county or muniсipality, including any person employed by a school board or board of education, or who may hereafter be appointed to any such employment, office or position, whose term of employment, office or position is not now fixed by law, аnd receiving a salary from such State, county or municipality, including any person employed by a school board or board of education, who has served as a soldier, sailor, marine or nurse, in any war of the United States, or in the New Jersey State militia during the period of the World War, and has been honorably discharged from the service of the United States or from such militia, prior to or during such employment in or occupancy of such position or office, shall be removed from such employment, position or office, except for good cause shown after a fair and impartial hearing, but such person shall hold his employment, position or office during good behavior, and shall not be removed for political reasons.
“For the purposes of this section no term of office, position or employment of any person shall be deemed to be fixed by law or coterminus with that of the employing or aрpointing board or body by
The City of Jersey City is governed by the commission form of government law.
“In every municipality governed by chapters 70 to 76 of this title (
The mandatory character of the language used in the clause in thе above statute “for such term as it shall fix” demonstrates a clear legislative intent that the clerk of a municipality governed by the сommission form of government law holds his office for a fixed or stated period of time. Prior to the 1937 Revision the language had been permissive in form (“may” was used instead of “shall,” P.L. 1930, c. 221), but a mandatory purpose was indicated. As the present case arises under municipal action taken in 1947, it is unnecessary to decide any more than that the present applicable statutory provision is mandatory and not merely permissive. The legislative purpose is that the term of office of clerk is for a fixed or stated period of time. Cf. Maxwell v. Board of Com‘rs of City of Wildwood, 111 N.J.L. 181 (Sup. Ct. 1933); Bell v. Atlantic City, 89 N.J.L. 443 (Sup. Ct. 1916). The office is therefore excluded from the operation of the Veterans Tenure Act (R.S. 38:16-1, as amended by P.L. 1942, c. 83), as its provisions do not apply “to appointments made for a fixed or stated period of time.”
Fox v. Board of Education of Newark, supra, relied on by the plaintiff, differs substantially from the present case. In thаt case there was a complete absence of legislation prescribing the appointment for a fixed or stated period of time as to the term of the employee of the school board, who invoked the Veterans’ Tenure Act. In respect to the position considered in that case there was no statutory enactment even remotely similar to
In the present cаse, the board‘s failure to fix a term cannot create tenure rights against the plain statutory exclusion of such rights. The board cannоt by indirection do what it may not do directly, particularly where a duty has been imposed by the statute to fix the term.
Whatever may be the stаtus of the defendant Tumulty, the present incumbent of the office, as to the duration of his term, the plaintiff cannot prevail upon a wеakness in Tumulty‘s right to the office. Plaintiff must succeed, if at all, upon the strength of his own title to the office. Manahan v. Watts, 64 N.J.L. 465 (Sup. Ct. 1900); Van Brookhoven v. Kennedy, 125 N.J.L. 178 (Sup. Ct. 1940); affirmed, 125 N.J.L. 507 (E. A. 1941).
It is the court‘s conclusion that the plaintiff does not have tenure and that he has no right to the office that he seeks.
The motion for summary judgment is denied.