Young v. Stafford

The opinion of the court was delivered by

trARRisON, J.

The question raised by the pleadings in this case is whether the relator’s appointment as secretary to the Passaic county board of taxation was for an indefinite term or for a term fixed by law. Upon the authority of the case of Burgan v. Civil Service Commission, 84 N. J. L. 219, the term of the relator is fixed by law, being limited to the life of the board by which he was appointed, which is in turn by statule limited to one year. This case does not, as has been argued to us, lay down the broad rule that all appointments are limited to the life of the body or officer who makes the appointment. Indeed, such argument loses sight of the phraseology of the statute that was construed in the Burgan ease, viz., “each board shall upon organization * * * have power to employ a secretary,” and so forth, which is the same stature that is now before us, from the language of which it is perfectly clear that what each board upon its organization lias the power to do, every board lias the power to do, and that if every hoard upon its organization has the power to employ a secretary, no previously organized hoard has the power to employ one for it; hence, by the language-of the act, the employment of a secretary is necessarily limited to the organized life of the board that appointed him.

The argument of counsel likewise fails to discriminate between eases in which an employment such as that of secretary is merely incidental to the organization and work of a given hoard, and cases in which the authority to create or fill certain offices or positions is one of the delegated powers especially conferred upon a municipal body or a public officer, as was the ease of the appointees of the sheriff in Sullivan v. McOsker, 84 N. J. L. 380. Sullivan v. McOsker was decided on March 3d, 1913, and Burgan v. Civil Service Commission was decided on May 19th, 1913, the opinion in each ca.se being by Mr. Justice Kalisch; the argument that the two decisions are inconsistent is without force if the ratio decidendi of the later case is as I have stated.

Me have not considered whether the secretary of the tax hoard holds an office for which quo vjarramio will lie; the question is not raised, and if decided adversely to the relator, would result merely in changing the form of the action to certiomri. Practice act of 1912, § 23; Pamph. L., p. 381.

Neither have we considered whether under rule 40 (Pamph. L. 1912, p. 389, rule 26) the demurrer in this ease was a proper pleading.

On the merits of the controversy judgment is given for the respondent.