Volk v. Burk

The opinion of the court was delivered by

Voorhees, J.

The prosecutor, by his writ of certiorari, seeks to review the resolution of the board of commissioners of the ciiy of Trenton, electing Michael F. McDade chief clerk to the board of commissioners of assessment of taxes, passed at a meeting of that body on the 39th day of November, 1911.

The prosecutor had been appointed clerk to the board of commissioners of assessment of taxes of Trenton in January, 1907, under an act empowering the commissioners of assessment of taxes to appoint a clerk. Pamph. L. 1890, p. 261; 4 Comp. Stat., p. 5149, § 89. The prosecutor, under this act, we think, was a city officer, as distinguished froih a mere employe. The position is in the act termed an office, and therefore the adoption of the Commission Government act and the subsequent organization of the board of commissioners ipso facto terminated the prosecutor’s term as such clerk.

*205 The adoption by the board of commissioners of the so-called omnibus resolution, recited in the opinion in Salter v. Burk, ante p. 152, did not, in our opinion, constitute a legal appointment of the prosecutor as clerk to the board of commissioners of assessment of taxes. The power to appoint such clerk resided not in the board of commissioners of the city of Trenton but under the above-cited statute. Hence, the action of the board of commissioners of Trenton failed to constitute an appointment of the prosecutor.

Whether or not the attempted appointment of Michael E. McDade by the board of commissioners of the city of Trenton, by the resolution under review was valid or not, need not be decided in this case. If it was a valid appointment, the prosecutor, not being a de jure officer, cannot complain. If it was invalid, he still is without standing to set it aside.

The principles in this case are governed by Salter v. Burk, supra, and Wilson v. Burk, post p. 205.

The writ of certiorari will therefore be dismissed.