author: Doughs, J.

text:
    HEROD McLEOD ET AL., PLAINTIFFS, v. SAMUEL BIRNBAUM ET AL., DEFENDANTS.
    Decided June 29, 1936.
    Before Justice Douges, by consent.
    For the rule, Isaac C. Ginsburg.

    Contra, Samuel Levinson.

   Doughs, J.

It is stipulated on this rule to show cause why service upon Zakin-Birnbaum, Incorporated, a corporation, under the provisions of chapter 69, Pamph. L. 1933, p. 129; N. J. Stat. Annual 1933, p. 264, § 135-96a(l), providing for service upon non-residents through the commissioner of motor vehicles, should not be set aside, as follows: That the automobile involved in the collision in which plaintiff alleges he was injured was driven by the defendant Samuel Birnbaum, an officer and employe of Zakin-Birnbaum, Incorporated; that at the time of the collision he was about the business of said Zakin-Birnbaum, Incorporated; that the automobile being so driven by Samuel Birnbaum was the property of Paul Simon; that Birnbaum, Simon and Zakin-Birnbaum, Incorporated, are all non-residents, being domiciled in the State of New York.

The matter is submitted to me by consent of the parties.

The single question is whether or not service may be made upon Zakin-Birnbaum, Incorporated, through the commissioner of motor vehicles, it being asserted that that corporation is neither chauffeur, operator or owner of the automobile. The statute provides in part as follows:

“Prom and after the passage of this act any chauffeur, operator, or owner of any motor vehicle, not licensed under the laws of the State of New Jersey providing for the registration and licensing of motor vehicles, who shall accept the privilege extended to non-resident chauffeurs, operators and owners bjr law of driving such a motor vehicle or of having the same driven or operated in the State of New Jersey, without a New Jersey registration or license, shall, by the acceptance and the operation of such automobile within the State of New Jersey, make and constitute the commissioner of motor vehicles of the State of New Jersey his, her, or their agent for the acceptance of process in any civil suit or proceeding by any resident of the State of New Jersey against such chauffeur, operator, or the owner of such motor vehicle, arising out of or by reason of any accident or collision occurring within this state in which a motor vehicle operated by such chauffeur, or operator, or such owner is involved.”

The legislature, by the use of this language, it seems to me, included not only the person who was actually driving the car, who would fall under the designation of chauffeur, but likewise the person in whose behalf the vehicle was being driven. It will be observed that the act says “to non-resident chauffeurs, operators and owners by law of driving such a' motor vehicle or of having same driven or operated in the State of New Jersey.” This language seems to me to be broad enough to cover a person in whose interest and for whose benefit a car is being operated, although such person may be neither the chauffeur nor the owner thereof. It is quite common to refer to a railroad system as being “operated” by a corporation, a coal mine as being “operated” by an operator, and instances might be multiplied where the word “operate” covers not the physical labor but the management and control of the agency. And so it seems to me that the statute in question is designed to and does in fact cover not only the actual driver but also the person in whose behalf a motor vehicle is being driven whether such person be the owner or not.

The rule to show cause is discharged, with costs.


source: Caselaw Access Project

author: Lloyd, J.

license: Public Domain

text:
    ARTHUR R. RAYMOND, PROSECUTOR, v. TOWNSHIP COUNCIL OF TEANECK ET AL., DEFENDANTS.
    Argued January 22, 1936
    Decided July 11, 1936.
    Before Bkogan, Chief Justice, and Justices Lloyd and Donges.
    For the writ, Major, Bach & Carlsen.

      Contra, Donald M. Waesche.

   Lloyd, J.

This is a certiorari to test a resolution of the township of Teaneek purporting to remove the prosecutor from his office as assessor of the township. Removal is claimed to have been illegal upon seven grounds.

Raymond, the prosecutor, was appointed assessor by the township council on May 22d, 1934, to hold office at the pleasure of the council. Teaneck is a municipality governed by the municipal manager form of government. Pamph. L. 1923, p. 226; Cum. Supp. Comp. Stat. 1911-1924, p. 2518, § ***136-703. This act provides that the municipal eouneil shall appoint a municipal manager, an assessor, &c., and that all such officers so appointed shall hold office during the pleasure of the council.

The first ground of attack is that chapter 277 of the laws of 1935, page 886 (N. J. Stat. Annual 1935, p. 338, § 136-1229B(4), protected him in office for the period of five years from the date of his appointment.

This act, in section 1, provides as follows:

Any person now holding the position or office of tax assessor of any municipality of this state and/or any person who may be hereafter appointed or elected to the position or office of tax assessor shall hold his said office for a period of five years from the date of his election or appointment, and the terms of all officials now in office are extended for said period, so as to give to said incumbent a term of five years from the date of appointment or election; provided, that the provisions of this act shall not apply to the term of any • tax assessor whose office may hereafter expire, but whose successor has been elected; provided, however, that nothing in this act contained shall be construed to modify or affect the provisions of an act entitled, “An act concerning the appointment and term of office of commissioners of assessment of taxes in certain cities,” .approved May 6th, one thousand nine hundred and twenty-nine, and provided further, that the provision of this act shall not apply to any municipality wherein the population is three hundred thousand or more.”

Section 2 defines the term “tax assessor” as including assessors, members of boards of assessors, and all other persons charged with the duty of assessing real and personal property in municipalities, including municipalities governed by city manager form of government.

The act referred to in section 1 is chapter 326, Pamph. L. 1929, p. 743 (Cum. Supp. Comp. Stat. 1925-1930, p. 1101, § *136-1229J(l), and applies to cities having a population of not less than one hundred and thirty-five thousand nor more than two hundred thousand inhabitants, but only those which have commissioners of assessment.

A preamble to the act is set forth in the briefs and seems to have been attached to the bill (but does not appear in the state of the case) which reads as follows:

“Heeling that the office of tax assessor should be removed as far as possible from political influence, and also that better service can be rendered by assessors, when they realize that their terms are for a longer period, this bill is presented to accomplish that end. It is in the interest of more efficient tax assessments and improvement in the tax machinery of the state.”

The act is attacked by the respondent as unconstitutional in two respects. The first is that the title is not sufficiently broad. We think it unnecessary to comment on this phase further than to say that we think it is.

The second contention is that it violates the provision of the constitution which prohibits the passage of special laws regulating the affairs of towns and counties, appointing local offices or commissions to regulate municipal affairs. Article 4, section 7, paragraph 11. 1 Comp. Stat., p. Ixxvi.

Scores of laws have been passed under this provision of the constitution; the vast majority held valid, some of them held invalid. The test of invalidity we think was expressed by Mr. Justice Garrison in Mortland v. Christian, 52 N. J. L. 537, when he said that “the controlling question in each case is whether the provisions of the act are such as are germane to population * * *. If the provisions of the act are such that they would be equally appropriate to other counties of the state, then the classification adopted is illusory, not real, and the legislation is special.” And in each instance the effort has been to determine this crucial question.

Hrom the best analysis and thought that we have been able to give to the act, particularly in view of its announced objective, we cannot discover any sound reason why one body of assessors or one type of assessor should be continued in office in a given locality of the state and another performing the same service and holding the same office should be excluded. If continuance in office because of experience, security in office and freedom from political influence be desirable in a population up to one hundred and thirty-five thousand, it is difficult to understand why it should not be desirable in a population of from one hundred and thirty-five thousand to two hundred thousand or over three hundred thousand, and if desirable respecting assessors generally, why not equally desirable when the assessment is by commissioners of assessment in the excluded municipalities; why if not desirable in such municipalities should it be advisable in those municipalities where the assessments are by individual assessors, particularly in view of the second section of the act which makes it otherwise so comprehensive.

Not only is the classification illusory in character, but comes within the type of double classification condemned by the Court of Errors and Appeals in Wilson, Attorney-General, v. Ramsay, 86 N. J. L. 263; 90 Atl. Rep. 265.

The remaining reasons presented become unimportant in view of the conclusion we have reached touching the constitutionality of the act of 1935, and will not be discussed.

The resolution of removal is affirmed, and the rule to show cause why a writ of mandamus should not issue is discharged, with costs to the respondent under both proceedings.


text:
    ELMIRA STEELMAN, ADMINISTRATRIX AD PROSEQUENDUM OF ESTATE OF LeROY STEELMAN, DECEASED, PLAINTIFF-RESPONDENT, v. ROBERT A. GILBERT, DEFENDANT-APPELLANT.
    Argued January 22, 1936
    Decided July 11, 1936.

      Before Bkogan, Chief Justice, and Justices Lloyd and Donees.
    For the appellant, Wüliam I. Garrison.

    For the respondent, Elwood C. Weeks.

   Lloyd, J.

Plaintiff below obtained a verdict and judgment and defendant appeals. The case was based on negligence and the grounds argued for reversal are, first, that there should have been a nonsuit; second, that a verdict should have been directed for the defendant; and third, that the defendant, being an infant, the judgment entered should have been set aside.

The first two grounds are untenable because a rule for new trial based on the weight of the evidence (involved in the motion for nonsuit) was filed, argued and passed upon by the trial judge. Cleaves v. Yeskel, 104. N. J. L. 497; 141 Atl. Rep. 814.

The third ground is without substance. After judgment had been entered on the verdict the defendant gave notice of an application for its vacation on the ground that he was an infant, and that he had not been personally served. Nothing was presented to the judge in support of the notice, not even a formal petition or application. The statement of the d(-fondant in his testimony at the trial that he was under age was no part of the record, and the verbal application might well have been dismissed for this reason.

Other reasons justifying the action of the court are that the application is addressed to the discretion of the court, and the exercise of such discretion will not be disturbed unless abused, which we find not to be the case; that the defendant having proceeded to trial with the assistance of able counsel and submitted his cause to the court and jury on the merits, is estopped from setting up the defense of infancy. LaRose v. Nichols, 92 N. J. L. 375; 105 Atl. Rep. 201; 6 A. L. R. 412.

Complaint of service based as it was on the alleged infancy, likewise fails for the reasons already noted. A minor is liable for his torts (Bronhoelzl v. Brandes, 90 N. J. L. 31; 100 Atl. Rep. 162; 31 C. J. 1090), and where as here the only complaint is or can be that the defendant was not represented by guardian or next friend in addition to the very competent counsel who conducted his case, it is manifest that under section 27 of the Practice act of 1912, page 382 (Cum. Supp. Comp. Stat. 1911-1924, p. 2819, § 163-303), which provides that “no judgment shall be reversed, * * * on the ground of error as to matter of pleading or procedure unless on examination of the whole case it shall appear that error injuriously affected the substantial rights of the parties,” the action of the trial judge should not be disturbed.

The judgment is affirmed, with costs.


author: Brogan, Chibe Justice.

text:
    GEORGE A. FRAWLEY, PLAINTIFF-APPELLEE, v. THE PENNSYLVANIA RAILROAD COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted January 25, 1936
    Decided July 9, 1936.
    Before Brogan, Chief Justice, and Justice Donges.
    For the plaintiff-appellee, Frank I. Casey.

    For the defendant-appellant, W. Holt Apgar.

   Brogan, Chibe Justice.

This is an appeal from a judgment for the plaintiff entered in the Mercer County Court of Common Pleas. The plaintiff had been a member of the relief department of the Pennsylvania Railroad, a beneficial organization, which paid compensation to its members during disability. He had been such member since October, 1918. He became incapacitated from injuries received in the performance of his duty as a freight brakeman in October, 1928, and from that time until May 31st, 1931, he received financial benefits to which his status in the relief organization entitled him. On the date last mentioned he was notified that thenceforth no further relief payments would be made to him.

The action is on contract, the plaintiff claiming that there is due and owing to him the sum total of the said payments, up to the time of suit, which were discontinued on May 31st, 1931. The notice of discontinuance of the benefits was in writing and signed by the medical examiner in accordance with section 45 of the regulations governing the relief department, which reads: “If the injury is of a permanent character [as it was in this case] benefits will cease when the member shall be declared by the medical examiner to be able to earn a livelihood suited to his capacity.”

Section 65 of the said regulations provides as follows:

“All questions or controversies of whatsoever character arising in any manner, or between any parties or persons in connection with the Relief Department, or the operation thereof, whether as to the construction of language or meaning of the Regulations of the Relief Department, or as to any writing, decision, instruction or acts in connection therewith, shall be submitted to the determination of the Superintendent of the Relief Department, whose decision shall be final and conclusive thereof, subject to the right of appeal to the Advisory Committee within thirty days after notice to the parties interested, of the decision.

“When an appeal is taken to the Advisory Committee it shall be heard by said Committee without further notice at their next stated meeting, or at such future meeting or time as they may designate, upon evidence and argument submitted in -writing, and shall be determined by vote of the majority of a quorum, or of any other number not less than a quorum of the members present at such meeting, and the decision arrived at thereon by the Advisory Committee shall be final and conclusive upon all parties without exception or appeal.”

The application for membership in the fund, which had been signed by the plaintiff at the time he became a member thereof, contained a covenant that he agreed to be bound by the regulations of the relief department of the company; that the application, when approved, shall constitute a contract between the applicant and the company. The express covenant is in this language, “I also agree for myself and those claiming through me to be especially bound by regulation 65, providing for final and conclusive settlement of all disputes by reference to the superintendent of the relief department and an appeal from his decision to the advisory committee.”

At the termination of the whole case a motion was made for a direction of verdict in favor of the defendant on the ground that the plaintiff had not exhausted the remedies provided by regulation 65 for a review and appeal within the organization itself. The court denied this motion, stating that there was no express provision that the plaintiff was required to exhaust his remedies within the organization before appealing to a court of law. We think this was erroneous. He proceeded to charge the jury on the sole issue as to whether or not plaintiff was able to earn a livelihood on May 31st, 1931, in an employment suited to his capacity. In cases of this kind a claimant is entitled to litigate his claim in a law court if the relief to which he believes himself entitled has been denied him in the reviewing tribunals within the organization of which he is a member, or if the factual situation is such that it would be useless to invoke the aid of these agencies. This latter, however, is a fact question that should be submitted to a jury.

There was proof in this case that the plaintiff had taken his claim, after receipt of notice that benefits would be discontinued, to the superintendent of relief, Mr, Hunt, from whom he received neither attention nor satisfaction, and that he likewise attempted to take an appeal by consulting a member of the advisory board. Both these officers categorically denied that such effort had ever been made by the plaintiff. The court disregarded this element of the case entirely, being convinced that the contract in question was not one that required the plaintiff to exhaust his remedies within the organization itself. With this interpretation of the contract and the regulations that were a part thereof we are not in accord. It is anomolous indeed for a claimant to ask the court for a favorable judgment on his claim, in accordance with the contract, and at the same time refuse to abide by the regulations which the contract imposes upon him. Ocean Castle, &c., v. Smith, 58 N. J. L. 545; 33 Atl. Rep. 849; affirmed, 59 N. J. L. 198; 35 Atl. Rep. 917; Roxbury Lodge v. Hocking, 60 N. J. L. 439 (at p. 441).

The judgment is reversed, and a venire de novo allowed.


author: Brogan, Chief Justice.

text:
    ANNIE E. C. MOFFETT, RELATOR, v. JOHN C. BLANDY, RESPONDENT.
    Argued January 21, 1936
    Decided July 9, 1936.
    Before Beogan, Chief Justice, and Justices Lloyd and Donges.
    For the relator, Henry M. Evans.

    For the respondent, John C. Blandy, pro se.

   Brogan, Chief Justice.

This is an action in quo warranto, the relator having filed an information under the fourth section of the statute. 3 Comp. Stat., p. 4212, § 4.

The relator asserts that she is entitled 'to the office of assessor of and for the city of Gloucester, saying that she held that office until July 1st, 1935, at which time the respondent, John C. Blandy, took possession of the said office, assumed the duties thereof and has ever since excluded the relator therefrom.

It appears that the said Blandy was appointed by the governing body of the city of Gloucester to the office of assessor on January 1st, 1935, his three-year term to begin on July 1st, 1935. It also appears that the three-year tenure possessed by the relator, by its own limitation, expired on June 30th, 1935. She contends, however, that her three-year term wTas extended for an additional two years by an act of the legislature known as Pamph. L. 1935, ch. 277, p. 886; N. J. Stat. Annual 1935, p. 338; § 136-1229B(4). That act provides, with some exceptions, for an extension of the term of assessors for an additional two years. If the statute upon which reliance is placed by the relator were valid, clearly the relator would have been protected in her office for a further two years after June 30th, 1935.

We have determined, however, that the statute in question is invalid (Raymond v. Teaneck, 14 N. J. Mis. R. 487). No useful purpose will be served by repeating what was said in determining that case. The statute upon which relator’s claim to the office rests, being unconstitutional, her right to the office fails.

Judgment for the respondent, with costs.


author: Perskie, J.

text:
    ORVILLE V. MESLAR, RELATOR, v. TOWNSHIP COMMITTEE OF THE TOWNSHIP OF DENVILLE, RESPONDENTS.
    Submitted May 17, 1936
    Decided July 11, 1936.
    Before Brogan, Chief Justice, and Justices Cask and Perskie.
    For the relator, Orville V. Meslar.

    For the respondents, Frederick 0. FLenn.

   The opinion of the court was delivered by

Perskie, J.

This cause is before us on a demurrer to a return to an alternative writ of mandamus. The question requiring decision is whether respondents were legally justified in refusing the relator a license to erect and construct a gasoline filling station.

The alternative writ of mandamus alleges, inter alia, that on August 3d, 1935, in conformity with the provisions of the zoning ordinance of the township of Denville, relator died a written application with the clerk of said township for permission to erect and construct a gasoline filling station at a cost of $4,000 on a plot of land within the township. This plot is at the intersection of two state highways. Four other filling stations are in the immediate vicinity—two within two hundred feet of relator’s land, and two more within two hundred and fifty feet. Within two thousand feet on the same side of the street is a public grade school, and between the school and the plot in question are several private dwellings. There is also a fire house containing municipal offices within five hundred feet on the opposite side of the street from relator’s land. Respondents denied the application.

The return admits, in the main, the material averments of the writ, and sets up in justification thereof that (1) Relator did not apply for a building permit under the building code. (2) The municipality has a right to regulate the storage, sale and handling of highly inflammable and explosive materials. (3) The township had discretion in the issuance of the permit and did not abuse such discretion. (4) The township had no knowledge as to the style or type of building and with due regard for the general welfare properly refused the application.

The relator demurred. Does the return justify the refusal to issue the permit? We think not. It is uncontradicted that the business to be conducted in the district in which the lands are located is permissible. No where is it made to appear that the zoning ordinance, upon which the application is predicated, requires the assent of the building inspector as a prerequisite to the right to maintain a gasoline filling station in this particular zone. It is well settled that filling stations do not involve such an increase in the fire hazard or such danger to the public safety as to justify the refusal of a permit for their erection. Ingersoll v. South Orange, 3 N. J. Mis. R. 335; 128 Atl. Rep. 393; affirmed, 102 N. J. L. 218 (2); 130 Atl. Rep. 721 (1); Williams v. Gage, 3 N. J. Mis. R. 1095; 130 Atl. Rep. 721 (2); Mangiello v. Jersey City, 6 N. J. Mis. R. 536; 142 Atl. Rep. 179. Nor is it here made to appear that there was any reservation of control by the municipal governing body over the number and location of gasoline service stations in the zones in which they are not prohibited by the zoning ordinance. In fine, the facts and issues involved in this case are strikingly similar to those in Hirschorn v. Castles, 113 N. J. L. 277; 174 Atl. Rep. 211. In that case we held that where premises to be erected in a municipality are suitable for the purpose for which it is designed, and the business to be so conducted is permissible under the terms of the zoning ordinance in the district in which the lands'are located, and the zoning ordinance does not require the assent oí the building inspector or the municipal body as a prerequisite to the right to conduct a business ol the character proposed, the refusal of the requested permit was arbitrary, capricious and unreasonable. That holding controls and is dispositive of the case at bar.

The demurrer will therefore be sustained, and a peremptory writ of mandamus awarded.


text:
    NICK BONAMASSA, PROSECUTOR, v. CHESTER DAVIS, DEFENDANT.
    Decided July 11, 1936.
    For the prosecutor, Joseph Varbalow.

    For the defendant, Vincent L. Gallaher.

   Lloyd, J.

A writ of certiorari was allowed to determine the sufficiency of an appeal by the defendant from a judgment rendered against him in a Small Cause Court in Camden county to the Court of Common Pleas of that county, and brought on for hearing according to the statute before me.

The sufficiency of the appeal is attacked on the ground that no bond was entered by the defendant against whom the judgment was rendered.

The provision of the statute (2 Comp. Stat., p. 2612, ¶ 5) being the act constituting courts for the trial of small causes, accords the right of appeal on the following and no other terms: “That the appellant shall file with the justice a bond to the other party, with at least one sufficient security, being a freeholder in the county, and in double the amount of such judgment or off-set, conditioned that the appellant shall appear and prosecute the said appeal in the said Court of Common Pleas, shall stand to and abide the judgment of said court, and pay such costs as shall be taxed against him if the judgment be affirmed.”

Instead of depositing a bond as required by the statute appellant deposited with the justice of the peace in cash a sum of money in double the amount of the judgment and costs, a check for which moneys has been forwarded by the justice to the county clerk, as appears by the return.

The deposit was not in accordance with the terms of the statute, and whatever of substitutionary value there may be in thte deposit of money, it cannot be regarded by the court as effective to support the appeal.

Apart from the technical requirement of the statute, however, substantial reasons may well be conceived for refusing to recognize such deposit. The moneys in the hands of the justice might or might not be available to the plaintiff upon the rendition of judgment on the appeal; much less would he be obliged to follow the funds into the hands of the clerk of the court as would be essential in the present case.

A quite similar question has been considered by this court in the recent case of Calaway v. Town of Belleville, 116 N. J. L. 377, where substitution of money as a deposit in lieu of bond in a bastardy case was made, and it was held insufficient. I have been pointed to no statute which authorizes such substitution in the present case.

The appeal is set aside, and the record in the case will be remanded to the Small Cause Court.


author: Per Curiam.

text:
    NAT PETERSON, PLAINTIFF-RESPONDENT, v. CHARLOTTE CROSSLEY, TRADING AS THE COURT HOUSE SERVICE STATION, DEFENDANT-APPELLANT.
    Submitted May 15, 1936
    Decided July 7, 1936.
    Before Justices Bodine and Heher.
    For the defendant-appellant, Frank Benjamin.

    For the plaintiff-respondent, Jacob B. Friedman.

   Per Curiam.

The defendant appeals from a judgment in favor of the plaintiff in an action tried before the court without a jury. The action was for slander and false arrest. The defendant is the proprietor of a gas station. In her absence, one of her employes accused the plaintiff of stealing one of her bottles of oil, and called the police who detained the plaintiff and subjected him to questioning. The employe was not shown to have any specific authority for the acts done. The mere fact that he was employed to wait on customers and service ears would not seem to furnish any basis to find, as a fact, that he had implied power to make false and slanderous accusations, or to occasion the arrest of an intending purchaser.

Judgment is reversed, with costs.


author: Wolbee, C. C. J.

text:
    Sussex County Circuit Court.
    HARRY R. PALMER, AN INFANT, BY HIS NEXT FRIEND, MAURICE E. PALMER, AND MAURICE E. PALMER, INDIVIDUALLY, PLAINTIFFS, v. SYDNEY WEBSTER, DEFENDANT.
    Decided April 13, 1936.
    For the plaintiffs, Bassin & Bassin.

    For the defendant, Dolan & Dolan.

   Wolbee, C. C. J.

Plaintiffs sued the defendant in the Sussex County Circuit Court for damages arising out of an automobile accident. The case came on for trial on September 20th, 1935, and thereafter, and the jury brought in a verdict in favor of the plaintiffs. Thereafter a rule for a new trial was allowed, and the verdict as to the infant plaintiff was set aside as being, inadequate, and a new trial was awarded as to damages only. At the last general election held in the county of Sussex, the defendant stood for and was elected to the office of sheriff of Sussex county. The case has been placed on the calendar for trial at the April, 1936, term of court.

Plaintiffs now move for either (1) a change of venue to some county other than that laid in the complaint; or (2) for a rule for a “foreign jury,” upon the grounds that the sheriff, who is the defendant, is thereby disqualified from summoning, impanelling or assisting in the selection of a jury in this case, because of Ms interest.

First, as to change of venue, this case as appears is pending in the Sussex County Circuit Court. The Circuit Courts of this state do not have jurisdiction or authority to sit at a place other than the county seat. A change of venue is an application which seeks to transfer the cause from the locality of the court itself to some other place for trial. In the Supreme Court, which has state-wide jurisdiction, and its cases may be tried at the various county seats, it is apparent that the change of venue may be effected, but generally, the Circuit Court has authority only to try cases in the county where it exists. In New Jersey, so far as I know, we have no statute expressly requiring the Circuit Courts to sit for the trial of actions or the transaction of other judicial business at the county seat; but there can be no question that the court is not authorized to hear or determine issues of fact at any other place, except when authorized so to do by statute or consent of the parties. The county seat is the proper place for the transaction of all public business, including such judicial business as arises in the county, except the hearing by the presiding judge of issues of law, ex parte applications, or such matters as may properly be brought before the court in chambers or vacation. All the authorities to which I have been directed hold that a court is without jurisdiction, at least in actions where issues of fact are involved, to proceed elsewhere, and that a trial conducted at some other place against the objection of one of the parties, is void. That rule may be found collected in 21 Encyclopedia of Pleading and Practice 605.

It has always been not only the understanding, but the practice in this state, that the court must convene for the transaction of its business at the county seat, except in the instances where it is expressly authorized by statute or by consent of the parties, to appoint some other place. Its records are on file with the clerk, who is required under our statute to keep his office at the county seat. A court house is provided by the taxpayers at the county seat for the use of the court and other officials, and the Circuit Courts of this state have uniformly, since their organization, convened at that place, except when otherwise authorized by statute; as, for example, where the court house is destroyed, or unsafe, or unfit for the holding of court, or where no court house is provided at the county seat. The justice of the Supreme Court may appoint some convenient building in the vicinity of the place where the court is required to be held as a temporary place for the holding thereof. Further, under our statute, the time of holding the Circuit Court is fixed by the chief justice, or the justice presiding in the particular circuit. (An act relative to the Supreme and Circuit Courts (Revision of 1900), Comp. Stat., pp. 1712, 1713, 1714, 1715, 1716.)

All this implies that the court is authorized to hear and determine issues of fact at the county seat only, and that it has no authority or jurisdiction to try such issues at any other place, nor has it the authority or jurisdiction to transfer against the consent of the parties a case pending in its court to another court. The law on this subject is well expressed in the case of Selleck v. Janesville, 100 Wis. 157; 41 L. A. R. 563, where it is said:

“While there is no express statutory provision saying that the courts shall be held at the county seat, the fact that they have been so held since the state was organized, and the further fact that authority is given by law to the judge to appoint some other place to hold court than the place usually designated therefor, implies that it cannot be changed except for the causes stated in -the statute. * * * The mischiefs

that might arise from permitting a court to assume a vagrant character and to travel from place to place are so manifold that it requires no argument for their demonstration. It needs but the suggestion of the fact to bring to the mind the panorama of trouble that might follow, fatal alike to the rights of the parties and to the dignity of the court.” Bell v. Jarvis, 98 Minn. 109; 8 Am. & Eng. Ann. Cases 938; 7 R. C. L. 993, § 22.

It is true that the circumstances of this case present an extraordinary one, but nevertheless the issues involved are wholly issues of fact, and despite this, plaintiffs are not without remedy against the alleged infirmity existing in this matter.

Accordingly, the motion for a change of venue oí a ease pending in the Circuit Court has no precedent, nor does authority exist for the same, in view of the immemorial practice and usage of conducting a case at the county seat and at no other place in actions pending in the Circuit.

Second, with regard to the motion for a “foreign jury,” the situation indicates that the defect against a change of venue from an action pending in a Circuit Court has been supplied by the legislature in authorizing the judge of the Circuit Court to impanel a “foreign jury.”

The statute provides (Comp. Stat., p. 2977, §§ 36a and 38) :

V. FOREIGN JUEY.

36a. Discretion of Circuit Courts to order.—Sec. 1. That the Circuit Courts of the respective counties of this state may, in their discretion, order trials by foreign juries in all cases which have been or which shall hereafter be commenced in any of such courts.

38. Direction of Venire and selection of jurors; expenses; by whom paid.—That whenever a foreign jury shall be ordered, the order for a jury shall specify the number of jurors to be returned, and the venire shall be directed to the sheriff of the court from which such jury shall be taken, and shall be returnable to the Circuit Court in which the issue is triable; the jurors shall be selected in the same manner as the general panel of jurors is selected, and shall be such as are competent jurors for the county from which they are taken; and the expense of summoning and returning such jurors, and of their attendance at the court shall be paid by the county within which such court shall be held.

I am satisfied that the sheriff is disqualified from serving in his capacity in assisting the jury commissioner, because he is the defendant in this case. Cranmer v. Crawley (Supreme Court, 1790), 1 N. J. L. 43, and Jones v. Woodworth, Ann. Cases 1912 A 1134.

The question remains whether the discretion vested in the court to order a “foreign jury” should be exercised. There seems to be precedent for the summoning of a “foreign jury” in a proper case in order to obtain a satisfactory trial to both litigants. In Hoboken v. Griffin, 97 N. J. L. 16, it appeared that the taxpayers started an action in the Supreme Court against the mayor and commissioners for the alleged illegal use by them of public funds in aiding them in being re-elected. The venue was laid in Hudson county. Hoboken at that time was the second largest city in Hudson county, and the defendants were all members in public life and well known. The plaintiffs moved for a “foreign jury” upon the ground that a satisfactory trial could not be had in Hudson county for the reason that if the plaintiffs succeeded, the defendants might allege the zeal of the taxpayers in causing the result, and if the defendants were successful, the plaintiffs would have been dissatisfied and perhaps alleged that it came about by the powerful influence and political affiliations of the defendants. It was apparent that a satisfactory trial could not be had in Hudson county. Mr. Justice Swayze in part there stated:

“We are clear therefore that the plaintiff has the right in a proper case to a foreign jury and there have been recent precedents in this state. We are, therefore, under no necessity of discussing the question on fundamental principles and we refer to Crocker v. Justices of Superior Court, 94 N. E. Rep. 369, only for the purpose of calling attention to the admirable discussion of the subject, in the absence of a statute like ours, bjr Chief Justice Rugg, of Massachusetts. We agree with him, that it is a jurisdiction to be exercised with great caution and only after a solid foundation of fact has been first established, and that it should be resorted to only in aid of justice and should 'not be permitted to be employed as an instrument of destruction or as a means of delay. We also agree that it should only be used when the court is convinced that a satisfactory trial cannot be had in the county where the venue would normally be laid. At common law the rule as stated in Tidd. Pr. authorizes a foreign jury when a fair and impartial, or at least a satisfactory trial cannot be had in the county where the action is laid. Tidd Pr. 723. It may well be that it was meant to save the right of the court in its discretion to order a foreign jury where a satisfactory trial could not be had, even when it could not be proved that there was difficulty in securing a fair and impartial trial. Ordinarily where it could be proved that a fair and impartial trial could not be otherwise had, justice would require a foreign jury; but it may well be, under our modern system of government and politics, that the same difficulty arising out of-the influence of powerful men would arise as arose at common law. Then the powerful men were men of high rank and great power. How they may be politicians who control votes and thereby control the source of governmental power. A trial under such circumstances may be very unsatisfactory to the court even though there could be no proof affecting the fairness and impartiality of the jury at the time when the venue is laid or even when the jury is impaneled. It is the probability of untoward influence that justifies precautions by the court and they may bo justified even though there is no ground for challenging the array.”

The general philosophy so strongly imbedded in American jurisprudence that the administration of the law is and should be the firmest pillar of good government, must be a thing of action. The appearance of a litigant as the defendant in this case who is one of the officials assisting in the selection of a jury in “his own cause,” tends to weaken the confidence of the people. The court makes no statement imputing the integrity or honesty of the defendant in the performance of his duties. However, the situation is such which he should seek to remove. The idea of maintaining the purity of the courts in their actions, and even so far as to occasion the inference of things that might cause suspicion or doubt, must at all times be removed, if not completely annihilated. I believe that no harm will come to either of the parties, and the exercise of my sound discretion compels me to conclude that a “foreign jury” should try the issues between the parties herein.

Under the circumstances, the motion for a rule for a “foreign jury” is granted upon the ground that a satisfactory trial in this case cannot be held by a jury impaneled from the lists of jurors in Sussex county, in the selection of which the defendant, as sheriff of the county of Sussex, has participated, and a venire may issue, directed to the sheriff of Warren county to be returnable to this court in the same manner as the general panel of jurors is selected, and to be such as are competent jurors from the county of Warren, and that the expense of summoning and returning such jurors and of their attendance at the court, shall be paid by the county of Sussex.


text:
    Passaic County Circuit Court.
    THE COUNTY OF PASSAIC, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. THOMAS E. MANLY, DEFENDANT.
    Decided January 27, 1936.
    For the plaintiff, Harry L. Schoen; amicus curice, Joseph T. Lieblich.

    For the defendant, McDermott, Enright & Carpenter.

   Wolbee, C. C. J.

The plaintiff moves to strike out the answer and counter-claim of the defendant filed in the above stated cause on the ground that the answer discloses no legal defense, and that the connter-elaim fails to set forth a cause of action. The complaint alleges that the plaintiff is a municipal corporation of the State of New Jersey and that the defendant is the duly elected sheriff of Passaic county, and has been continuously sheriff of said county since November 14th, 1933; that by virtue of his office as such sheriff, it was his statutory duty to make to each purchaser of any lands sold by him, or other officer of his staff, under any writ of execution, a deed of conveyance for the lands so sold, and that it was the further statutory duty of such sheriff to charge and collect a fee of $10 for drawing and making such deed of conveyance to the purchaser of any lands sold, and that as such sheriff, defendant drew and made to such purchaser of lands sold by him under any writ of execution, a deed for the lands so sold, and charged and received a fee of $10 from each purchaser for making such deed.

The complaint further alleges that it was the statutory duty of the defendant, as such sheriff, to turn over and account to the county treasurer for the sole use of the plaintiff, for such fees received by him for drawing and making such deeds of conveyance; that the sheriff by statute is made personally liable to the county of Passaic for the payment to it of all such fees charged or collected; and that the sheriff by statute received in lieu of all fees or other compensation, an annual salary for his services from the county of Passaic.

The complaint further alleges that the sheriff neglected and failed to keep an account of all such fees and moneys received by him for the use of the county, for drawing and making deeds of conveyance, by virtue of any writ of execution, for the period from January 1st, 1934, to June 1st, 1935, and that he further failed, on or before the fifteenth day of each month during such period, to make a full and itemized statement and return, verified by oath, to the county treasurer of all such fees collected; that the plaintiff, the county of Passaic, has demanded of the defendant that he make such account and pay over said fees to it as required by law, but that the said sheriff has entirely neglected, failed and refused to do so.

The complaint further alleges that the defendant has made one thousand and thirty-one deeds of conveyance during the said period from January 1st, 1934, to June 1st, 1935, and that there is due and owing therefor from the defendant to the county of Passaic for said period, the sum of $9,261.62, with interest thereon according to law.

The defendant by his answer admits substantially all of the allegations of the complaint, except that he avers it was not his duty to pay over to the county treasurer the fees collected by him for drawing and executing sheriff’s deeds, and he denies that he is personally liable to the county of Passaic for the payment to it of such fees charged or collected.

He further denies that he received personally any part of said fee of $10 collected for drawing and executing sheriff’s deeds, and avers that all he has received since taking office is his salary as provided by law; he further denies that he neglected and failed to keep an account of all such fees for the period between January 1st, 1934, and June 1st, 1935, and denies that he failed, on or before the fifteenth day of each month, to make a full and itemized statement and return, verified by oath, to the county treasurer of all such fees collected; he denies that he has refused to account for such moneys and alleges that he told the board of freeholders of Passaic county at a meeting held in December, 1934, or January, 1935, he was paying such fees to a lawyer for drawing his deeds and taking the acknowledgments thereto; he admits he made and delivered one thousand and thirty-one deeds during the period from January 1st, 1934, to Juno 1st, 1935, but denies that there is due and owing from him to the county of Passaic the sum of $9,261.62, or any other sum.

As a separate defense, the defendant avers that he did not receive any part of said fee of $10 per deed collected by him upon the delivery of each sheriff’s deed, but that he paid said fee to Theodore Bosenberg, an attorney-at-law of this state, for his services in preparing each sheriff’s deed and taking the statutory oath and acknowledgment thereto; that the statutory fee for taking an affidavit is twenty-five cents, and for taking proof of acknowledgment on a deed is $1, which statutory fees, amounting to $1.25, were actually paid by the sheriff to such attorney-at-law.

Defendant in his separate defense further alleges that the employes of Ms office as sheriff of Passaic county had duties in their positions which required all of their time during the whole working day, and that, therefore, they were not able to perform their customary duties in the office and also prepare the sheriff’s deeds, and that the defendant thereupon employed the aforesaid attorney-at-law to prepare such deeds for him as sheriff, which he was required to execute and deliver to purchasers at sheriff’s sales; defendant in said separate defense further avers that the preparation of such sheriff’s deeds is essentially the work of a lawyer, and that as such sheriff, he determined that in the proper performance of his office as sheriff, it was his duty to have such sheriff’s deeds prepared by an attorney-at-law instead, to avert any liability to purchasers for the improper preparation and execution of such deeds; that defendant paid the aforesaid attorney-at-law all of said fee of $10 per deed to compensate said attorney-at-law for the preparation of said deeds, for the purchase of the necessary forms and for the lawyer’s services in taking the affidavit and acknowledgment required by law to be on each sheriff’s deed.

By way of counter-claim against the county of Passaic, the defendant alleges that the civil service employes in the sheriff’s office when he assumed the duties thereof, were kept so busy by their routine work that they did not have time within office hours to prepare the sheriff’s deeds; that defendant was advised that the preparation of such deeds is essentially the work of a lawyer, and that unless they were carefully and properly drawn, defects might be detected in titles to real estate and great liability might devolve upon the sheriff for errors in the drawing and execution of such, sheriff’s deeds; that defendant, not being an attorney-at-law, and not having sufficient help in the sheriff’s office to prepare or take acknowledgments to sheriff’s deeds, engaged the services of an attorney-at-law of his own selection, Theodore Rosenberg, and requested- said attorney-at-law to prepare all sheriff’s deeds for the office of the sheriff of Passaic county, and that the defendant agreed to pay him for such services, and for his services in taking each acknowledgment for the sheriff’s deeds, the sum $10 per deed, being the fee fixed by statute to be charged and received by the sheriff from each purchaser of lands at the time that the deed is delivered, which was a reasonable fee.

Defendant further alleges that said attorney-at-law did in fact prepare all such deeds mentioned in the complaint and the affidavits and acknowledgments required by law, and did, at his own expense, purchase the necessary prepared and printed forms, and furnish the stenographic and other clerical services, and took all the acknowledgments and affidavits to said deeds as an attorney-at-law under the authority of the statutes; defendant further alleges that the law of this state provides a fee of twenty-five cents for administering each oath, and a fee of $1 for taking proof of acknowledgment of a deed, and that of the said $10 fee paid by this defendant to said attorney-at-law for preparing each deed, taking the affidavit and acknowledgment thereto, the sum of $1.25 was provided by statute, and that the remainder of $8.75 represented the fees and charges of said attorney-at-law for the preparation of said sheriff’s deed, and that said statutory fee of $10 is a fair and reasonable fee to be paid by the sheriff for having said sheriff’s deeds prepared and the affidavits and acknowledgments thereto taken by a duly authorized officer.

Defendant further alleges that if it be determined that the sheriff should pay to the county treasurer the entire fee of $10 that he received upon delivery of the sheriff’s deeds, then the defendant, who has paid all of said moneys as received to the aforesaid attorney-at-law, counter-claims judgment against the plaintiff for $9,261.62, with interest thereon according to law.

On a motion to strike out a pleading on the ground that it does not disclose any cause of action, Supreme Court rule No. 40 is now equivalent, under our present practice, to a general demurrer at common law, and deals with matters of substance only. Savage v. Public Service Railway Co., 95 N. J. L. 432; 113 Atl. Rep. 252, E. & A., 1920, Gummere, C. J.

On this motion, plaintiff admits the truth of all the facts well pleaded in the answer, and all inferences of fact which can be legitimately drawn therefrom. Ahlemeyer v. Miller, 103 N. J. L. 617; 133 Atl. Rep. 880, E. & A., 1927, Kalisch, J.

Opon a demurrer, it is the well settled rule that judgment will be given against the party whose pleading is first defective in substance. Brehen v. O’Donnell, 34 N. J. L. 408, Supreme Court, 1871, Scudder, J.

Under our “Sale of Land act” (4 Comp. Stat., p. 4675), it is provided by section 7:

“That the sheriff or other officer, who by virtue of any writ of execution, shall sell any lands, tenements, hereditaments and real estate levied on, shall make to the purchaser thereof a deed of conveyance for the lands, tenements, hereditaments so sold.”

Chapter 95 of the laws of 1924, page 184 (1 Cum. Supp. Comp. Stat. 1911-1924, p. 1240), entitled, “An act fixing the fees of sheriffs for drawing and making deeds and bills of sale for property sold under execution,” provides as follows:

“For drawing and making a deed to a purchaser of real property, sold under execution, the sheriff shall be entitled to charge a fee of ten dollars.”

Pamph. L. 1906, p. 76; 4 Comp. Stat., p. 4643, entitled, “An act respecting the fees of surrogates, registers of deeds and mortgages, county clerks and sheriffs in certain counties of this state, and providing salaries for such officers,” provides in section 1:

“The fees, costs, allowances, percentages, and all other perquisites of whatever kind which by law the * * * sheriffs in counties other than counties of the first class of this state may receive for any official acts or services rendered by such * * * sheriffs, respectively, or by any assistant, or other person in their office or employment, for any acts done, or services rendered in connection with said offices, shall continue to be payable, and shall be received and collected by the said * * * sheriffs, respectively, for the sole use of their respective counties as public moneys belonging to the said counties; and shall be accounted for by said * * * sheriffs, and paid over as such in manner hereinafter provided.”

Section 2 of said act provides:

“The said * * * sheriffs shall respectively keep an account of all fees and moneys received by them pursuant to the provisions of this act for the use of their respective counties, and shall, on or before the fifteenth da}»- of each month, make a full and itemized statement and return verified by oath to the county collectors of their several counties, of the fees, costs, allowances, percentages and all perquisites of whatever kind received by them, or by any assistant or other person in their offices or employment, for any act done or service rendered in connection with said offices, and all sums which may have been charged or taxed, or which shall have accrued or become payable, for any such services during the month preceding the making of such statement; which statement shall be made under oath upon blanks containing a form of said statement, to be furnished to the said * * * sheriffs by the county collectors, respectively, and shall be filed in the offices of the county collectors, respectively, there to remain as public records. Such statements shall be forthwith audited by the county auditors, or other proper county officers, and on or before the twentieth day of each month the said * * * sheriffs shall, respectively, pay over the amount of such fees and moneys to the county collectors of their respective counties, under penalty of one hundred dollars for each day’s neglect to file such certificate, or to pay over such moneys, to be recovered in the name of the Board of Chosen Freeholders of such county where such default shall occur, for the use of the said county in an action upon contract in the Supreme Court, or in the Circuit Court of said county.”

Section 3 of said act provides:

“The said * * * sheriffs shall be personally liable to their respective counties for the payment of all such fees and costs as are mentioned in the first section of this act, * *

Section 4 of said act provides:

“* * * The said * * * sheriffs shall receive annual salaries as follows: In counties now or hereafter having a population of between two hundred thousand and three hundred thousand inhabitants, eight thousand dollars; * * * To be paid by the proper disbursing officer in equal semimonthly payments * * *. Said * * * sheriffs in any county in this state shall select and employ the necessary deputies, and chief clerks and all other employes, who shall receive such compensation as shall be recommended by said sheriffs * * * and approved by the Board of Chosen Freeholders of their respective counties, such compensation to be paii semi-monthly by the proper disbursing officer of said counties on warrant approved by the sheriffs * * Cum. Supp. Comp. Stat. 1925-1930, p. 1642, § 181-41; Pamph. L. 1927, ch. 204, p. 389.

The population of Passaic county under the 1920 federal census was two hundred and fifty-nine thousand one hundred and seventy-four, so that the statutory annual salary of the sheriff is fixed at $8,000. See Pamph. L. 1931, ch. 271, p. 681; N. J. Stat. Annual 1931, p. 105, § 48 *420M.

A careful study of the three statutes clearly shows that it is the statutory plan that the sheriff shall make to a purchaser a deed of conveyance for lands sold by him under a writ of execution and that his fee for drawing and making such deed to a purchaser of real property is fixed at $10; that this fee, payable to the sheriff, is received by him for the sole use of his county as public money belonging to the county and to be paid over and to be accounted for under oath to the county collector, on or before the fifteenth day of each month, and to be paid over by said sheriff to the county collector on or before the twentieth day of each month. The statute fixes a penalty for each day’s neglec-t to file such statement, or pay over such moneys, and gives to the board of chosen freeholders of the county a right of action to recover the penalty in either the Supreme or Circuit Court of the county, and in addition, makes the sheriff personally liable to the county for the payment of any such fees. The legislative plan, which was undoubtedly initiated to abolish the fee system for certain public officials, provides that the sheriff of Passaic county shall receive, in lieu of all other compensation, an annual salary of eight thousand dollars ($8,000), and further provides that while the sheriff may select and employ the necessary deputies, chief clerks and other employes to enable him to perform his official duties, their compensation must be recommended by the sheriff and approved by the board of chosen freeholders, and when the compensation is so fixed by the concurrent act of the sheriff and the tax-raising body of the county, the compensation ' shall be paid semi-monthly by the proper disbursing officer of the county, who, in the case of Passaic county, is its county treasurer, on warrant approved by the sheriff.

The attorney-at-law, Theodore Rosenberg, to whom the sheriff alleges he paid the statutory fee of $10, may have been selected and employed by the sheriff, but his compensation was never recommended by the sheriff to the board of chosen freeholders, nor approved by it, nor paid by the county treasurer on the sheriff’s warrant, as required by law.

The action of the sheriff in telling the board of freeholders, at a meeting held in December, 1934, or January, 1935, that he was paying such fees to a lawyer for drawing his deeds and taking the acknowledgment thereto, was not a compliance with his statutory duty, and to accept such a course of conduct as a legal justification for his acts, would place it within the power of the sheriff to nullify the legislative mandate contained in the Fee act of 1906, as amended.

Chief Justice Gummere, while considering the application of this act to the county clerk of Sussex county in the Supreme Court in 1922, in the case of Freeholders of Sussex v. Hopkins, 98 N. J. L. 301 (at p. 304), affirmed in 1924 by the Court of Errors and Appeals in 100 Id. 175, on the opinion below, pointedly said:

“To sum the whole matter up, a county official can no more escape responsibility for the performance of an act, which is required of him as such officer, by asserting that in performing it, he had first laid aside his official character, than a judge can escape responsibility for a decision rendered by him, by declaring that before announcing it, he had taken off his judicial robe.”

There can be no question in this case that the fees were received by the sheriff: by law, and that they were for his official acts or services. He is not asserting any right to retain these fees for his own use and benefit, and alleges that he has paid out those fees for the use and benefit of the county. Notwithstanding, this was a diversion of county funds, not a use of his own.

I think that this fact creates his personal liability. The state, through its legislature, imposed these services upon the sheriff, and in doing so, said to the sheriff:

“Account for these fees to your county or never more be officer of mine.” Freeholders of Passaic v. Slater, 85 N. J. L. 621; 90 Atl. Rep. 377, E. & A., 1913, Swayze, J.

Mr. Justice Swayze in that case held to this view regarding fees of county clerks in naturalization cases, notwithstanding the contrariety of opinions and decisions adverse to his views by courts for which he entertained the highest respect.

On the contention of the defendant that the board of chosen freeholders of Passaic county ratified the payments made by the sheriff to the attorney-at-law on the theory that since they had power to approve such payments before they were made, they could subsequently ratify them, the case of Demarest v. Inhabitants of New Barbadoes, 40 N. J. L. 604, E. & A. 1878, Dodd, J., is in point. In that case, the township sued its collector for the recovery of fees received by him beyond the fees allowed by law. The alleged illegal fees were charged in three bills, which were audited and passed by the township committee. It was contended that the collector could retain the fees because they were voluntary payments by the committee, with full knowledge of the facts, and without mistake or fraud. This contention was not permitted to prevail, because the Court of Errors and Appeals held that the powers of the township committee are only those conferred by statute. Mr. Justice Dodd (at p. 607), said:

“The committee and the collector both derive their powers solely from the legislature, and each is presumed to know the limit of the powers possessed by the other. The committee are the agents of the township only so far as they act within the express provision of the law. Payments made or sanctioned by them not authorized by legislative enactment are ultra vires, outside of their agency, and cannot bind their principals, the People. * * * The doctrines of acquiescence and voluntary payments * * * have no place, because the payments were not by the plaintiff now seeking recovery, nor by its sanction or approval.” See, also, Camden v. Varney, 63 N. J. L. 325; 43 Atl. Rep. 889, E. & A., 1899, Collins, J.

Defendant contends that the law laid down in the line of cases commencing with Demarest v. Inhabitants of New Bar badoes, supra; Troth v. Freeholders of Camden, 60 N. J. L. 190; 37 Atl. Rep. 1017, E. & A., 1897, and Freeholders of Passaic y. Slater, supra, is inapplicable on tbe ground that in each of those cases, the public official sought to retain the fees collected by him for his own use and benefit, while in this case, the sheriff paid out these fees for the use and benefit 'of the county. I am not impressed with this distinction, for in this ease, the sheriff used the county moneys, while not for his own personal benefit, in a manner which contravened a duty prescribed by statute, and exercised a dominion over the people’s money unauthorizel by law, no matter if the benefit inured to the county. His action was ultra vires, and he can derive no right therefrom to assert against the people of Passaic county, and is chargeable with knowledge of the invalidity and illegality of his acts. Clark v. Commissioners of Fire District No. 5, Woodbridge, 6 N. J. Mis. R. 732, Supreme Court, 1928, per curiam.

Defendant also seeks legal support of his acts in the class of cases which hold that when a municipal corporation has the right to enter into the given contract, such action may be thereafter ratified. Wentink v. Freeholders of Passaic, 66 N. J. L. 65; 48 Atl. Rep. 609, Supreme Court, 1901, Collins, J.; Bourgeois v. Freeholders of Atlantic, 82 N. J. L. 82; 81 Atl. Rep. 358, Supreme Court, 1911, Bergen, J.; Frank v. Board of Education of Jersey City, 90 N. J. L. 273; 100 Atl. Rep. 211, E. & A., 1916, Black, J.

But that argument is answered by the principle laid down in the case of Jersey City Supply Co. v. Jersey City, 71 N. J. L. 631, E. & A., 1904, where Mr. Justice Pitney stated the rule (at p. 633) :

“It is well settled, however, that a municipal corporation can act only through its authorized agents, and that where the powers of the corporation or its agents are subjected by law to restrictions with respect to the subject-matters of contract, or to restrictions as to the form and method of contracting that are limitations upon the power itself, the corporation cannot be held bound by either an express or an implied contract in defiance of such restrictions.”

Chief Justice Beasley iu the Supreme Court in 1874, in the case of Town of Hackettstown ads. Swackhamer, 37 N. J. L. 191, held that municipal corporations, in the absence of a specific grant of power, do not in general possess the capacity to borrow money, and that a note given by such corporation, for an unauthorized loan, cannot be enforced, even though the money borrowed has been expended for municipal purposes.

The contention of the defendant that it was necessary for him to employ an attorney-at-law for the proper drawing of the deeds of conveyance, and that it would be unlawful for him, or anyone in his office, to draw such deeds because of the provisions of the Unlawful Practice of Law act of this state, being chapter 138 of the laws of 1924 (Cum. Supp. Comp. Stat. 1911-1924, p. 874, § 52-214p), as amended by chapter 268 of the laws of 1928 (Cum. Supp. Comp. Stat. 1925-1930, p. 402, § 52-214t) may be disposed of by the observation that, assuming that law applied to this situation', he could have had the compensation of the attorney-at-law approved by the board of chosen freeholders, and his compensation paid in the manner provided by the Pee act of 1906, as amended.

I deem it unnecessary to consider the argument respecting chapter 214 of the laws of 1920 (Cum. Supp. Comp. Stat. 1911-1924, p. 1239, § 74-58), fixing the fees of masters in chancery, notaries public and commissioners of deeds for taking an acknowledgment of a deed, $1, and for taking an affidavit, twenty-five cents, for the purpose of deciding this motion.

The language of Mr. Justice Vann in the case of Village of Fort Edward v. Fish, decided in 1898 in the Court of Appeals of New York, 156 N. Y. 363; 50 N. E. Rep. 973, is apropos. In that case he said:

“The statute forbade the payment from the funds of the water board, and action forbidden by statute is void. A void act is no act and a void payment is no payment. Such payment is not voluntarily made by the corporation, but by its agent, in excess of his authority, and in defiance of its rights. It is not the act of the corporation itself, but of one, without authority, who assumed to act for it. * * * It is a matter of grave public concern to protect municipal corporations from the unauthorized and illegal acts of their agents in wasting the funds of the taxpayers. It is only with the utmost difficulty that municipal officers and agents can be kept within the bounds of their authority now, but once let it go forth as the settled law of the state that an illegal contract can become the basis of a lawful compromise entered into between the contractor and an agent guilty of the illegal action, and a new door will be open to municipal spoliation. * * * Sound public policy will not permit the courts to countenance this dangerous method of evading a statute, for it will always be done under the claim of good faith, and the fraud beneath will be hard to> discover.”

The counter-claim embraces a contingent set-oíf, i. e., if it be determined that the county is entitled to recover the funds diverted bjr reason of the fact that the defendant illegally employed the services of the attorney to do what he considered was necessary work of the office, it prays that he be permitted to set-off the same sum against that found due because it was used for the benefit of the county. This counter-claim is based upon a misconception. It seeks indemnity, but it is not such. The money used by the sheriff to pay Mr. Rosenberg was not his own money. It was the money belonging to the county. The liability of a municipality to indemnify an officer for money expended by him out of his own funds in the discharge of his official duties is supported by repeated adjudications. Barnert v. Paterson, 48 N. J. L. 395, Supreme Court, 1886, Knapp, J., and eases cited therein. In that case it appeared that the late distinguished Mayor Barnert of Paterson sought reimbursement of money paid by him out of his own pocket to employ counsel to defend him in a proceeding taken by the city to compel him, as mayor, to join in the execution of bonds which the city was about to issue, and which resulted in an adjudication that the mayor had acted properly. The late mayor paid his counsel for defending the action, and then brought his action to recover it back. That action was held to lie because it sought indemnity involving the disbursement of money out of pocket for which he was to be reimbursed. But in this case, the indemnity sought will not be granted because the sheriff was not possessed of a right to enforce his claims at law for the money paid by him for the services rendered. The employment of Mr. Rosenberg was unauthorized and for which no liability on the part of the county arose. The defendant was a volunteer with the county’s money. This court will not permit him, by this counter-claim, to rise to the position of a creditor.

The counter-claim will be stricken out because it does not set forth a cause of action.

As the answer in this case, in my opinion, does not set forth a defense, and an amended answer will not cure the situation (Lully v. National Surety Co., 106 N. J. L. 81; 148 Atl. Rep. 762, E. & A., 1929, Walker, C.); and the counterclaim discloses no cause of action, they should both be stricken out, and since the facts are such that the damages are admitted to be in the sum of $9,261.62, the plaintiff, the county of Passaic, is entitled to a rule for judgment in said sum, with interest. ■


author: Ely, D. C. J.

text:
    Second District Court of Bergen County.
    PETER DOELGER BREWING CORPORATION, A CORPORATION, PLAINTIFF, v. OTTO SPINDEL AND ADOLPH SPINDEL, DEFENDANTS.
    Decided July 8, 1936.
    For the plaintiff, Pesin & Pesin.

    For the defendants, Morris M. Spindel.

   Ely, D. C. J.

Plaintiff has, by his own motion, taken a nonsuit as to Adolph Spindel. The issues remain as to Otto Spindel.

It appears from the testimony that Otto Spindel, who denies ordering the merchandise for which suit is brought, signed a great number of delivery tickets, and on such tickets the merchandise was billed to him, Otto Spindel. He now denies on the stand that in accepting this merchandise he was acting except as an agent for his son. He is an able business man and it is impossible to believe that he would not purchase this merchandise on his own credit for his own uses in business.

Defendant moved at the close of the trial for dismissal of the action on the grounds that the plaintiff was not authorized to do business in the state, but it would appear by concession of the attorneys that even if such authorization was not obtained prior to the commencement of the action, such authorization was obtained while the action was pending. Defendants’ counsel cites the case of Commercial Credit Corp. v. Boyko, 103 N. J. L. 620; 127 Atl. Rep. 534, in support of his motion. Although this case does not definitely decide the point in question, by dicta, our Mr. Justice Kalisch says: “There is a diversity of judicial opinion as appears from the decisions of the court of our sister states, in construing a statute [Corporation act, section 98] of like import on the question whether an action brought by a corporation, not eligible to sue, under the statute, at the time the action is instituted, can, after the bringing of such action, by complying with the terms of the statute, maintain the action. In a majority of the states, the courts have held that the word “maintain” in the statute does not inhibit the institution of the action, but refers to a situation that any time after the action is brought, a foreign corporation may qualify itself to maintain such action, and prosecute to a final end, by first complying with the terms of the statute. The trend of authority supports this view.” In view of this dicta in the very case which defendants’ counsel cites to support his intention, I decide that even though the plaintiff corporation was not authorized to do business at the commencement of this action it has now qualified itself and may maintain the action.

Judgment will be entered for the plaintiff corporation against the defendant Otto Spindel for the sum of five hundred ($500) dollars.


author: John C. Wegnek, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    NICOLINA ARMENTI, PETITIONER, v. EDWARD A. RYAN, RESPONDENT.
    Decided July 8, 1936.
    For the respondent, Clarence B. Tippett.

    For the petitioner, Charles A. Rooney.

   The only question involved in the ease sub judice is whether or not a niece is a dependent under the act.

Webster defines “niece” as the daughter of a brother or sister or a brother-in-law or sister-in-law.

The act specifically states who are dependents and includes therein nieces and nephews. It does not restrict to those by affinity or those by consanguinity.

I have carefully reviewed the various cases referred to by both attorneys in their briefs as well as in their argument before me at the time of trial. Great stress was laid by respondent’s attorney on the ease of Schoen v. Siegmund, 119 N. J. Eq. 524; 183 Atl. Rep. 292, but the means of interpretation of the Wills act is different than that of the Compensation act.

A strict interpretation of the Wills act has been and is followed by_ our courts. The intent of the donor is to be strictly construed but the Compensation act is defined in Jersey City v. Borst, 90 N. J. L. 454; 101 Atl. Rep. 1033, a “remedial one”'—-“to be liberally construed.”

In the case of Jensen v. Woolworth, 92 N. J. L. 529; 106 Atl. Rep. 808, it was held: “If a liberal construction of the act would lead to absurd results, resort may be had to the principal that the spirit of the law controls the letter.”

The courts have time and time again stated the act is a remedial law of prime import. It should be liberally and broadly construed. Schmid v. Stanton Forging Co., 104 N. J. L. 471; 142 Atl. Rep. 4.

In re Merrill, 88 N. J. Eq. 261; 102 Atl. Rep. 400, states “the real intention of a statute, when ascertained, will prevail over the literal sense of terms.

Prior to the amendment (Pamph. L. 1919, ch. 93, p. 206) nephews and nieces were not included in the act. When the act was so amended they were included without restriction.

The words “actual dependents” and “who are dependent upon the deceased” as used in our act, means relatives in some degree mentioned in the act, who were dependents in fact and being wholly as to a substantial degree supported by the deceased at the time of his death. Hammill v. Pennsylvania Railroad, 87 N. J. L. 388; 94 Atl. Rep. 313; Havey v. Erie Railroad, 87 N. J. L. 444; 95 Atl. Rep. 124.

I am, therefore, holding that regardless of whether the relationship is by affinity or consanguinity nieces and nephews are dependents and that in the case sub judice compensation is payable as follows:

Three hundred (300) weeks at $20 per week as provided in the statute for a wife.

$19.60 per week from the termination of the three hundred (300) weeks until Marie Pedi, the niece, arrives at the age of sixteen.

Puneral allowance in the amount of $150 is to be paid by the respondent.

Stenographic fee is to be paid by the respondent.

Counsel fee in the amount of $300 is to be paid by the respondent.

John C. Wegnek, Referee.


author: Woíbek, C. C. J.

text:
    JOEL AND MILTON ZARITZKY, BY THEIR GUARDIAN, ANNA ZARITZKY, AND LEO ZARITZKY, PLAINTIFFS, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, A NEW JERSEY CORPORATION, DEFENDANT.
    Decided March 5, 1936.
    For the plaintiffs, Cole & Morrill.

    For the defendant, Evans, Smith & Evans.

   Woíbek, C. C. J.

The defendant has applied for an examination of the plaintiffs before trial. It seeks to examine the guardian of the property of two infants in whom the cause of action is alleged to be vested, appointed by the surrogate of Passaic county. The other plaintiff appears in his proper person.

The petition alleges:

“That it desires to examine the said plaintiffs, Joel and Milton Zaritzky, by their guardian, Anna Zaritzky, and Leo Zaritzky, as witnesses in the said cause, before the trial of the same, according to the provisions of the statute.”

The statute provides:

“Any party to an action * * * may be examined as a witness * * * before trial * *

Eesistance to the application is made because the guardian is not a “party;” and in the absence of a proper showing, the discretion vested in such matters should be withheld.

The cause of action is that of the infants. 14 R. C. L. 281, § 51. The guardian is asserting it for the purpose of collecting the yield to augment the estate. The real parties are the infants. The guardian is not regarded as a party, but as the manager or conductor of the infants’ cause of action. This is the rule where the relationship on the record is that of “prochein ami.” Demarest v. Vandenberg, 39 N. J. Eq. 130; Lang v. Belloff, 53 Id. 298; 31 Atl. Rep. 604. The fact that the guardian is one of the property appointed by the surrogate falls within the reasoning of Griffin, v. Londrigan, 107 N. J. Eq. 76, where it was held that a guardian of the person and property of a lunatic who was party complainant was not the real party against whom interrogatories could be exhibited under the Chancery act and the rules of the court. Pamph. L. 1915, p. 197, ch. 62; Cum. Supp. Comp. Stat. 1911-1924, p. 695, § 47-174; rule 84. It is said that in Deak v. Perth Amboy Gas Light Co., 1 N. J. Mis. R. 457, an examination before trial was ordered against an administrator ad prosequendum of a cause of action under the “Death act.” That ease is to be distinguished. In such instance, the action is vested in such person by the very terms of the statute. He is not only the manager, but the one who is the real party in interest. His representative capacity first arises upon the recovery of a fund to be turned over to the general administrator. I believe the guardian of the property of the infants, as in this case, is not a “party” within the terms of the statute.

The petition does not set forth facts evidencing reasons why such order should be made against the other defendant. It does not aver that the examination will relate to any definite issue or fact. It omits to state the relevancy or materiality of such desired facts to the defendant’s defense.

An examination before trial is a remedy provided by the legislature as an effective means of assisting litigants in preparing for trial. It is analogous to inspection of books, interrogatories, &c. Since the statute provides for it, in a proper case and within reasonable limits, it is desirable and expedient. Its importance cannot be over-estimated. It is designed to shorten trials, clarify issues, eliminate noncontroversial matters, and in many instances dispense with long and expensive proof. It promotes thoroughness that commends itself to the ideal of a speedy administration of the essential rights of litigants at the trial. Its denial in many cases is dne to a lack of a proper showing and the possible abuse, rather than to the propriety of the application therefor. No distinction appears between such relief and that seeking an inspection of the books, papers and records, as in Phillips v. Interstate Hosiery Mills, 111 N. J. Eq. 432; 162 Atl. Rep. 886, and Condict v. Wood, 25 N. J. L. 319. Unless, therefore, the petition shows such facts as will enable the court to properly exercise its discretion, the mere statement of the necessity for the relief can only be regarded as a conclusion, and not as a showing of facts from which the court can, quite independently, judge for itself the materiality of the evidence sought, and the propriety of granting or denying the application. In the absence of facts showing the necessity, and of the definite issues or limits to which it will extend, an order for examination would but countenance a “roving commission.”

The application is denied, without costs.


author: Wolber, C. C. J.

text:
    THE STATE OF NEW JERSEY, EX REL. UNO ORRE, JOSEPH A. MARCHESE, MANFIELD G. AMLICKE, BENJAMIN SPRECHMAN AND JOHN A. HORKA, RELATORS, v. GARRET ROOSMA, Jr., CHRISTIAN VAN HEEST, EMIL BERNHARDT, JOHN E. NEUBAUER AND EDWARD C. VANNAMAN, RESPONDENTS.
    Decided March 9, 1936.

      Por the relators, Martin Elughaupt (Leo Bruch, of counsel).
    Por the respondents, Joseph J. Weinberger.

   Wolber, C. C. J.

These actions are before me pursuant to a reference made by the Supreme Court to find the facts in this issue. State v. Goodfellow, 111 N. J. L. 604 (Comp. Stat., p. 1712, § 28-A). The proceeding is one on information in the nature of quo warranto, under the provisions of section 4 of the statute (Comp. Stat., p. 4212), to determine the title between rival claimants to membership in the offices of the board of adjustment of the city of Passaic.

The relators, five in number, assert that each of them individually is a duly appointed member of the board of adjustment of the city of Passaic, and that the respondents, also five in number, usurp, intrude into and are unlawfully holding and executing the powers and duties of their offices. To this information the respondents have filed a plea denying the right of the relators and asserting title to said offices in themselves. Upon this plea, the relators joined issue, and the matter was referred to me for trial. At the trial, the parties waived a jury and have stipulated the facts.

Prom this stipulation, it appears that the city of Passaic is presently governed under the provisions of the Walsh act (or Commission Government act, Pamph. L. 1911, p. 462, ch. 221; Cum. Supp. Comp. Stat. 1911-1924, p. 2457, § **136-1), and has been so governed since the year 1911, when it was adopted. On June 20th, 1922, the then board of commissioners adopted an ordinance dividing the city into numerous zones, and providing for the use and extent of use of buildings, structures and land in the various zones regulated and creating the board of zoning appeals to consist of five members, pursuant to the then existing statute. Pamph. L. 1921, ch. 82. The power to appoint the members was vested in the mayor, in accordance with the enabling statute. On December 9th, 1924, pursuant to the provisions of Pamph. L. 1924, ch. 146; Cum. Supp. Comp. Stat. 1911-1924, p. 2405, § *136-4200F(1), the then board of commissioners adopted a supplement to that ordinance which tended to conform to the enabling statute, whereby a board of adjustment was created, to consist of five members, and the name of the old board was changed as stated, and the ordinance vested in the mayor the power to appoint the members thereto for a term of three years. Under Pamph. L. 1928, ch. 274; Cum. Supp. Comp. stat. 1925-1930, p. 1245, § *136-4200j (3), said board has continued to function. This ordinance has not been supplemented, amended or repealed by any subsequent ordinance adopted by any succeeding board of commissioners.

On May 14th, 1935, an election for commissioners was held in the city of Passaic. At the organization meeting of the newly elected board held on May 21st, 1935, Commissioner Benjamin F. Turner was designated as mayor, and director of parks and public property; Commissioner Zabriskie A. Van Houten was designated the director of public affairs. On June 11th, 1935, the board of commissioners passed a resolution which the board subsequently amended by resolution of July 16th, 1935. Among the many provisions of this resolution as amended, it is found that the executive, administrative, judicial and legislative powers, duties and authority relating to the board of adjustment were assigned and distributed into the department of public affairs, over which department Commissioner Zabriskie A. Van Houten was the director.

On July 16th, 1935, Mayor Turner, claiming to act under the ordinance of 1922 and its supplement of 1924, appointed four of the relators as members of the board of adjustment, and one Martin Klughaupt as the fifth member. Subsequently, the relator, John A. IJorka, was appointed by the mayor because of the resignation of Mr. Martin Klughaupt.

On July 30th, 1935, at a meeting of the board of commissioners, Mr. Zabriskie A. Van Houten, director of public affairs, nominated the five respondents as members to the board of adjustment, and his nominations were approved by a majority of the board of commissioners. Since that time, and at the time of the filing of the information herein, the respondents have assumed to act as the board of adjustment of the city of Passaic.

It is conceded by the relators Joseph A. Márchese and Man-field G. Amlicke, that they did not take the oath of office within the time required by law, and hence have no claim to the several offices in question. As respects them, therefore, I find that they have no claim or right to membership in the board of adjustment of the city of Passaic.

The respondents contend that the provisions of the ordinance of December 9th, 1924, vesting the power of appointment in the mayor, are inconsistent with the provisions of the Walsh act (Pamph. L. 1911, ch. 221), as amended and supplemented, and argue that in view of such operation, the power of appointment resides in the director of public affairs, as the board of commissioners assigned it by the resolution, as amended on July 16th, 1935. In- my opinion, the solution of this contention will be determinative of the various questions raised and argued by the parties to this proceeding.

The Walsh act as originally enacted has on many occasions been considered by the courts and its object has been clearly pointed out in such eases as Salter v. Burk, 83 N. J. L. 152; 83 Atl. Rep. 937; Buohl v. Beverly, 90 N. J. L. 44; 98 Atl. Rep. 270, and Woolley v. Flock, 92 N. J. L. 65. Since its original enactment, it has been amended by Pamph. L. 1912, ch. 48; Pamph. L. 1912, ch. 366; Pamph. L. 1914, ch. 144; Pamph. L. 1915, ch. 228; Pamph. L. 1916, ch. 193; Pamph. L. 1922, ch. 120; Pamph. L. 1927, ch. 330; Pamph. L. 1929, ch. 265, and Pamph. L. 1930, ch. 221; some as a result of decisions of the courts (Oliver v. Daly, 103 Id. 52); others to provide for an extension of powers, changes in procedure; and still others consonant with needs of such municipalities as a result of changed legislative policy.

The development of the Walsh act since its original passage by the various amendments and supplements clearly evinces a legislative purpose of conferring upon the board of commissioners the most complete power that any municipal body should possess in conformity with its original plan of centralizing power and centralizing responsibility in the event of misuse of that power. Any contention that lends itself to the development and enlargement of this purpose is more in harmony with its spirit, and should he adopted, rather than a construction or interpretation that tends to circumscribe or limit its intended omnibus operation.

In the light of such background, an attempt will be made to examine the provisions of the diverse appointing powers that exist in the case at bar, so as to determine where the legislature intended the power should in fact reside.

The board of commissioners is a non-continuous body. O’Connell v. Bayonne, 116 N. J. L. 61. With regard to appointments where the term is not fixed by statute, the board of commissioners is without power to bind succeeding boards. In this connection, it seems apparent that the terms of the ordinance of December 9th, 1924, vesting the power of appointment in the mayor, operates to prevent the board of commissioners at its organization meeting from using its power to “* * * determine the powers and duties to bo performed by each department and shall assign such powers and duties to such department as they in their judgment deem appropriate, and they shall prescribe the powers and duties of all officers and employes and they may assign particular officers and employes to one or more departments and may require any officer or employe to perform duties in two or more departments; * * Pamph. L. 1930, ch. 221.

The ordinance prescribing a different method of appointment could not therefore be a fixed rule that would prevent the board of commissioners from taking such action. During the term of the board of commissioners that sponsored the ordinance, it had force and was its guidance. In the face of the present board, the ordinance could not be one which would compel obedience as a rule of law. Otherwise, the present board of commissioners was denied the important power of assigning the various powers, duties and departments as in its judgment was deemed appropriate. This the legislature expressly conferred upon the board of commissioners. I believe that this interpretation of the effect of the ordinance of December 9th, 1924, is consistent with fhe broad grant of powers to the board of commissioners under the Walsh act. The contention of the relators that the ordinance is operative, militates against such a construction, and leads to • a result which restricts the board of commissioners to a canalized course which flows through narrow banks.

The rule of interpretation applicable to this case is not strictly that of a repeal of the Zoning law or any part of it, by the terms of the Walsh act, by implication or otherwise, but rests rather upon a consideration of the framework of the several statutes so as to reconcile them to the intended operation of their respective scope. It is true that the statute enables the resolution to suspend pro hac vice the terms of the ordinance during its continuance. This result is brought about by the force of the Walsh act. A pertinent canon is stated in Roche v. Mayor, &c., of Jersey City, 40 N. J. L. 257, as follows:

“Every statute must be considered according to what appears to have been the intention of the legislature, and even though two statutes, relating to the same subject, be not in terms repugnant or inconsistent, if the later statute is clearly intended to prescribe the only rule which should govern the case provided for, it will be construed as repealing the original act.

“The rule does not rest strictly upon the ground of repeal by implication, but upon the principle that when the legislature makes a revision of a particular statute, and frames a new statute upon the subject-matter, and from the framework of the act it is apparent that the legislature designed a complete scheme for this matter, it is a legislative declaration that whatever is embraced in the new law shall prevail, and whatever is excluded is discarded. It is decisive evidence of an intention to prescribe the provisions contained in the later act as the only ones on that subject which shall be obligatory. * * *”

The contention, therefore, that the ordinance may only be repealed, suspended or modified by action of like dignity (American Malleables Co. v. Bloomfield, 82 N. J. L. 79; 81 Atl. Rep. 500) is inapplicable for the reason that the result of its suspension is brought about by the operation of a statute which indeed is of greater solemnity than the requisites of the rule cited.

This interpretation leads me to the view that the power of appointment conferred by the ordinance of December 9th, 1924, upon the mayor was suspended by the operation of the various amendments and supplements of the Walsh act, and the resolution of July 16th, 1935, and that the appointing power was intended to be vested in such director as the board of commissioners at the organization meeting deemed appropriate. This leads me to the view, and I further find, that the relators have no title to the offices as members of the board of adjustment of the city of Passaic, but that the title is vested in the respondents.


author: Pebskie, J.

text:
    HIRAM EVERETT, PROSECUTOR, v. TOWN OF MONTCLAIR, A MUNICIPAL CORPORATION, IN THE COUNTY OF ESSEX, RESPONDENT.
    Argued June 13, 1936
    Decided June 25, 1936.
    Before Justice Peeskie, in chambers, pursuant to statute.
    For the prosecutor, William, J. Gamarata (Thomas Brunetto, of counsel).
    For the respondent, George 8. Harris.

   Pebskie, J.

The basic question presented is whether the board of commissioners of the town of Montclair, at an organization meeting under the Walsh act, could remove “the buildr ing department, including the office of building inspector,” from one department to another.

At the organization meeting of the newly elected commissioners held on May 19th, 1936, the following resolution, among others, was adopted:

“Besolved, that the board of commissioners of the town of Montclair * * * that the executive, administrative, judicial and legislative powers, authority and duties appertaining to * * * the Building Department including the Office of Building Inspector * * * be and the same hereby are distributed into the Department of Public Works; * * * and the Director of Public Works is hereby vested with all the aforesaid * * * powers * * * and shall perform all duties * * * with respect thereto.”

Pursuant to that resolution John Picken was appointed building inspector. At the time of his appointment an ordinance had been adopted on January 9th, 1936, under which the building department and the office of building inspector were vested in the director of parks and public property. In pursuance of that ordinance prosecutor was, on May 25th, 1936, appointed building inspector by Commissioner McMahan, who was the director of parks and public property.

It appears that the prosecutor had been building inspector for some years prior to the last election of commissioners. He was, however, dismissed before the last election of commissioners by the then director of parks and public property in charge of the building department. He sought a writ of certiorari to review that dismissal and the writ was denied by Chief Justice Brogan on May 2d, 1936.

All this notwithstanding, it is now urged for the prosecutor- that the board of commissioners were without authority or power to adopt the challenged resolution of May 19th, 1936. The alleged lack of authority or power is rested upon the contentions that the commissioners could not, under the law, effect the change from one department to the other, as aforesaid, and, at all events, it could not be effectuated by a resolution.

The contentions are without merit. Section 4 of the Walsh act provides, inter alia, that “* * * The Board of Commissioners shall determine the powers and duties to be performed by each department and shall assign such powers and duties to such departments as they in their judgment deem, appropriate * * Pamph. L. 1930, p. 996, ch. 221; Cum. Supp. Comp. Stat. 1925-1930, p. 1271, § **136-8, subdiv. 4. This evinces a clear legislative mandate; its words are imperative. Foley v. City of Orange, 91 N. J. L. 554; 103 Atl. Rep. 743. The ordinance operating on the construction urged for prosecutor would prevent the board of commissioners from carrying out the absolute obligation imposed upon it under the act. Such a construction is untenable. (See State of New Jersey, ex rel. Orre et al., v. Roosma et al., 14 N. J. Mis. R. 529, wherein Circuit Court Judge Wolber reviews the cases on the point here involved.) Nor is the contention that the redistribution of powers could not be effected by resolution sound. It is, of course, true that under the Home Buie act (Pamph. L. 1917, ch. 152) an office must be created by ordinance. Toomey v. McCaffrey, 116 N. J. L. 364; 184 Atl. Rep. 835. Obviously, that question is not in this case. What the certiorari seeks to review is not Pieken’s right to office. It merely seeks to review the resolution of May 19th, 1936, by which the building department including the office of building inspector were removed from the department of parks and public property to the department of public works. It was clearly within the power and authority of the respondent to make the change in the manner employed.

The rule is discharged, with costs.