82 N.J.L. 298 | N.J. | 1911
The opinion of the court was delivered by
We have before us two writs of certiorari to review certain proceedings had by the common council of the city of Englewood. The first proceedings challenged are certain resolutions and an ordinance by which, without undertaking to remove the prosecutor from the office or position of city engineer of the city of Englewood, the common council in making public improvements, where the assistance of the city engineer was necessary, designated one Watson G. Clark as the engineer in charge of the work, thereby relieving the prosecutor from the performance of the duties appertaining to the office or position to which he claims to have been appointed. The ordinances and resolutions producing this condition were removed to this court by the first of the writs of certiorari now under consideration. While the foregoing writ was pend
On January 1st, 1901, the common council of the city of Englewood, by resolution, undertook to appoint the prosecutor city engineer for the term of three years, which term had not expired when the proceedings challenged by these writs were instituted. The resolution appointing the prosecutor, as it appears on the minutes of the city, reads as follows: “Mr. Watson nominated Charles II. Eekerson for the office of city engineer. domination seconded by Mr. Fitch. There being no other nominations it was voted unanimously that Mr. Charles H. Eekerson he appointed city engineer for the term of three years.” There was no ordinance creating the office, nor was the appointment made by ordinance with the approval of the mayor. It is not denied that Watson G. Clark was employed to perform the duties ordinarily assigned to the city engineer, and thereafter, and on August 11th, 1911, the common council adopted a resolution “that the appointment of Charles H. Eekerson as city engineer be and the same is hereby terminated, and the office of city engineer be and the same is hereby declared vacant,” and the writ to review the latter resolution was allowed September 16th, 1911, the first writ having been allowed July 1st, 1911.
The defendant is incorporated under the act relating to the government of cities having a population of less than twelve thousand inhabitants. Pamph. L. 1899, p. 96. The charter does not, in express terms, create the office of city engineer. It provides for a mayor, members of the common council, councilman at large, city clerk, collector of taxes, overseer of the poor, freeholders, commissioners of appeal and such justices of the peace, constables and ward officers as may be provided for by law, all of these to be elected by a vote of the people, and a city treasurer to he appointed by the common council for the term of three years, the terms of office of the
Section 33 of the charter declares that “the city engineer, surveyor, city solicitor, city sealer of weights and measures, and all other officers appointed by the common council, shall possess the powers and be subject to the obligations conferred and imposed on them by law or by the ordinances, by-laws, rules and regulations of the common council.” As this section follows other sections specifically defining the duties of the officers expressly named as elective as well as of the city treasurer, it manifests the legislative intent to fix the duties of such of the officers named as may be thereafter provided for and appointed by the common council, and not to create such offices without municipal action. Section 39 of the charter prescribes certain duties to be performed by the city engineer or surveyor regarding the city assessment maps, and requires the common council to fix, by ordinance, the compensation of the city engineer or surveyor for the above, and all other duties appertaining to Ms office, leaving it optional with the city to appoint either a city engineer or surveyor. As subdivision 34 of section 18 of the statute empowers the common council “to appoint from time to time such subordinate officers as may be •deemed necessary to carry into effect the powers and duties hereby created or otherwise conferred or imposed,” the common council had the right to appoint a city engineer ox surveyor, and when the office was established and appointment made, the appointee was required by section 39 to prepare, keep, renew and have the custody of the city map or atlas, and when so directed by ordinance or resolution to keep an index of the lots shown thereon, and of the owners thereof, and when directed in like manner to keep in his office an abstract of each and every deed or transfer affecting lands situate in the city, to be properly indexed, and section 41 of the charter requires the assessors to so arrange their duplicates as to specify by letters and numbers, as shown on the city atlas the several lots or subdivisions assessed with the valuation thereof as shown by the register kept by the city engineer. These extracts from the city charter would seem to indicate that the city engineer
It has been recently held in the Court of Errors and Appeals of this state that ordinances, rules, regulations and bylaws are intended to be synonymous and to be promulgated by ordinance, and cannot be made effective by resolution. Levy v. Elizabeth, 52 Vroom 643. Giving to this charter the construction adopted by the Court of Errors and Appeals in the case cited, the common council of the city of Englewood could not create an office nor appoint any subordinate
As the common council could not, by resolution, appoint the prosecutor either as a subordinate or public officer, the attempt to do so in the present case was futile and conferred upon the prosecutor no vested right to the position which he claims to hold asa basis for the relief he seeks, and as the question does not involve the title of the prosecutor to the office of city engineer, but only the legal existence of such an office, his status to attack by certiorari the subsequent action of common council can be determined upon such writ, quo warranto being unnecessary and indeed unsuited for such a purpose.
The writ in each case should be dismissed, with costs.