29 A.2d 406 | N.J. | 1942
This writ of certiorari brings before us for review two resolutions adopted by the Board of Chosen Freeholders of the County of Camden on March 4th, 1942. One of the resolutions removed the prosecutor, Vincent L. Gallaher, from the position of county counsel and the other resolution appointed Benjamin F. Friedman, one of the respondents, to the position of county counsel for a term of three years from that date.
It appears that the Board of Chosen Freeholders at its organization meeting on January 1st, 1941, appointed Mr. Gallaher county counsel for a term of one year, that at its organization meeting on January 1st, 1942, it reappointed him for a term of three years. The minutes of the board show these appointments by the adoption of appropriate resolutions.
It is the contention of the prosecutor that under the provisions of N.J.S.A.
The respondents make the point that the statute, R.S. 40:20-26, supra, does not apply because the prosecutor was not appointed to an office but to a position or an employment the term of which was not fixed by law and so was subject to removal under R.S. 40:21-4, supra.
It is our view that the case turns on the question of whether or not the prosecutor held an office. In Fredericks v. Boardof Health of West Hoboken,
We conclude that county counsels in all of the counties irrespective of classification are the holders of offices within the authority of the cited cases for reasons to be stated.
An examination of the statute law concerning county counsels discloses no specific provision, as far as we have been able to find, which creates the office of county counsel in any county regardless of its class. There are, however, statutory provisions which clearly recognize county counsels as the holders of an office. In counties of the first class the board of chosen freeholders are authorized to appoint a county counsel, a county physician and a county engineer under N.J.S.A. 40:21-59 and, by the next section, 40:21-60, a term of three years is fixed for the "officers" mentioned in the preceding section except that of county engineer. The legislature did not limit its recognition of the fact that county counsels were the holders of an office to counties of the first class. N.J.S.A.
Having found that the county counsels of all counties are the holders of an office and not a position or an employment as is argued by the respondent it remains to be seen whether the appointment of the prosecutor for a term of three years was within the power of the board of freeholders. We conclude that it was. N.J.S.A.
The prosecutor was therefore regularly and legally appointed to an office on January 1st, 1942, for a term of three years. The office being recognized by the law of the state as a part of the governmental system for the continuous performance of permanent public duties for a definite term of service comes within the case of Fredericks v. Board of Health of West Hoboken, supra, and other cited cases. Also see Murphy v. Freeholders ofHudson County,
The resolution removing the prosecutor, Mr. Gallaher, from office was adopted without authority. The resolution appointing Mr. Friedman, respondent, was also without authority because there is no statutory provision authorizing the appointment of more than one person to the office of county counsel and there was no vacancy in that office.
Both resolutions are therefore set aside, with costs. *294