50 N.J.L. 43 | N.J. | 1887
The opinion of the court was delivered by
The office of receiver of taxes was created by the charter of the city of Camden of 1871. Pamph. L. 1871, p. 210.
A. Clifford Jackson, the first receiver of taxes, was elected March 14th, 1871. He qualified by giving bond May 4th, 1871. Jackson was re-elected March 10th, 1874, and gave bond, which was accepted. George M. Thrasher succeeded Jackson. He was elected March 13th, 1877, sworn in March 16th, 1877, and gave bond, which was accepted April 3d, 1877. Thrasher was re-elected March 9th, 1880, and gave bond April 8th, 1880, which was accepted by the council the .same day.
The fifth section of the supplement of 1874 to the city-charter provides “ that the city council, at a meeting preceding the expiration of the term' of office of any city, ward or department officer or officers, either elected or appointed, shall fix the salary of said officer or officers by ordinance; and, in-case of the neglect or refusal of the said city council to fix the-salary of any officer or officers, then the salary theretofore paid for similar services shall be considered the salary of said officer or officers for his or their term of service; and no officer-under the city government, or employed in any department, either elected or appointed, shall have his salary, fees or emoluments of office increased or diminished during the term-for which he was elected or appointed.” Pamph. L. 1874, p. 181.
By an ordinance passed March 18th, 1886, the salary of the receiver of taxes, which had been theretofore $1800 per annum,, was increased to $2500 a year, payable monthly. This ordinance took effect immediately on its adoption.
The relator claims that he is entitled to the salary prescribed by the ordinance last mentioned. The validity of his claim depends upon the effect of section 5 of the supplement of 1874, above quoted. Is the relator disqualified to have the increased salary fixed by the ordinance by that part of section 5 of the-act of 1874 which prohibits the increase of salary “during-the term for which he was elected ? ”
The act of'1871 provides for annual elections to be held on the 2d Tuesday of March, in each year. Section 5 provides for the election, at the annual elections, of the usual city officers, such as assessors, ward clerks, chosen freeholders,, commissioners of appeal, constables, overseers of the poor,.
By section 18, every person elected or appointed to office in pursuance of the charter was required, before entering upon the duties of his office to take and subscribe an official oath, .and certain officers, including the receiver of taxes, were required, before entering upon their duties, to give bond to the city in such sum and with such sureties as the city council .should approve.
Section 12 provides that the term of office of all officers •elected at the annual election, other than chosen freeholders and justices of the peace, shall commence on the Friday succeeding the day of election each year.
The election of 1886, at which the relator was elected for his present term, was held March 9th, 1886. The succeeding Friday was March 12th. The ordinance increasing the salary was not passed until March 18th.
I am inclined to think that section 12 applies to all city officers, Avhether elected for one year or three years, especially where the officer is required to give a bond to be approved by the city council, the approval of which would naturally •devolve on the city government as it exists after the new ■election. This question happens to be of no importance, for the ordinance increasing the relator’s salary was of a later date than either the city election or the Friday succeeding thereto.
The relator has no standing entitling him to the increase of salary unless he can successfully maintain that the language, “ during the term for which he was elected,” in the fifth section of the act of 1874, has reference to the time when the relator or his predecessor qualified by giving the official bond and entered upon the duties of the office. In this construction of the statute we do not concur. If the relator’s present term did not begin on Friday succeeding the election, it is
Either aspect of this subject is fatal to the relator’s case. The city council, which is the body to approve the relator’s bond, was in session March 12th. On that day this body, instead of being called upon to approve the relator’s bond, adopted a resolution for an increase of salary, which resolution was embodied in the ordinance of March 18th. The relator, by withholding his bond until April 6th, could not prolong his prior term, and give validity to the ordinance in its application to the new term for which he had been elected. In the case cited Mr. Justice Dixon, in the Supreme Court, and Mr. Justice Van Syckel, in the Court of Errors, commented, in strong language, adversely to the policy of permitting an appointee to extend the legal tenure of his predecessor, or his own prior term by his neglect to qualify.
Nor is the principle above stated impaired or modified by the fact that the statute which created the office provided that the incumbent should hold until his successor qualified. Such a provision was not designed to extend the tenure of office of the incumbent beyond the specified term for his benefit. Its purpose was to conserve the public interests, that there might be no vacancy in office through the delay of the successor to qualify. An incumbent holding the office under such circumstances is in by sufferance of the person who, being chosen to the office, has failed to assume its duties, and the term so protracted is to the detriment of the latter in abridging his own term of office. As against the public, officers cannot found a valid title or right to hold over upon their own neglect of duty, although the charter provides that they should continue in office until their successors should qualify. 1 Dill, on Mun. Corp., § 160; People v. Bartlett, 6 Wend. 422. Especially does this principle apply where the officer is chosen at a popular election, to be held at a certain day, and the duty to compel the officer to qualify devolves upon another body.
Stilsing v. Davis, 16 Vroom 390, does not apply to this case. The question there was with respect to the power of appoint
Nor is Stuhr v. Hoboken, 18 Vroom 147, adverse to the views we have expressed. In that instance the ordinance increasing the salary was passed before the officer was appointed. The court held, under a city charter containing a provision similar to the fifth section of the act of 1874, that the ordinance, having been passed before the appointment was made, was effective to fix the salary, although the ordinance
Whether the relator’s present term began at the time when, by his own act, he could have qualified and assumed the duties of the office, or from the date of his election, or from the Friday succeeding his election, he is equally within the interdict of the fifth section of the supplement of 1874. In either of these events the ordinance of March 18th, 1886, is incapable of effecting an increase of salary for his present term.
The mandamus is denied, and the rule to show cause discharged, with costs.