Wilensky v. Gurtman

Per Curiam. The controversy is over the office of City Counsel of the City of Passaic. Plaintiff was first appointed in respect of a term,purportedly beginning January 1, 1948 and ending December 31, 1950. He received a second appointment on April 1,.1951 “for the term prescribed by law” [407] which he contends related to a term beginning January 1, 1951 and ending December 30, 1953. However, on January 8, 1953 the defendant was appointed to succeed him. The Law Division held that the term legally subsisting on April 1, 1951 began on June 30, 1948 and expired June 30, 1951, so that plaintiff’s appointment of April 1, 1951 was effective only until June 30, 1951 after which he was a holdover whose right to the office was terminable, and was terminated, by defendant’s appointment. We of our own motion certified plaintiff’s appeal to the Appellate Division. Passaic in 1911 adopted and has since operated under the commission form of government. R. S. 40:70-1 et seq. Ordinances adopted from time to time changed the length of the term of office of the city counsel. The ordinance presently in effect was adopted in 1936 and fixes the term at three years, consistent with R. S. 40:171-109 requiring that the term for this and other offices therein named shall be for three years in cities having a population of between 55,000 and 135,000. No calendar date for the beginning of a term is specified by R. S. 40:171-109 or by the ordinance. The first appointment under the ordinance was for a three-year term beginning June 30, 1936. This established June 30 as the beginning date of successive terms triennially thereafter, cf. Keffer v. Gaskill, 88 N. J. L. 77 (Sup. Ct. 1915), unless, as plaintiff insists, R. S. 40:46-6, with which plaintiff’s appointments purported to comply, and which provides that “the terms of office of all officers appointed * * * by the governing body of any municipality, * * * shall commence on January first of the year in which they are appointed,” applies to cities operating under the commission form of government. But in De Muro v. Janeczek, 4 N. J. Super. 366 (App. Div. 1949), certification denied 3 N. J. 371 (1949), R. S. 40:46-6 was held to be inapplicable to commission-governed cities and to be applicable only “to municipalities that hold their elections in November and under whose form of government the governing body organizes on the succeeding first of January.” We think the De Muro case was correctly decided and is [408] controlling against the plaintiff here. The judgment of the Law Division is therefore Affirmed.