LARKEY v. BAYONNE, 124 N.J.L. 172 (1940)

11 A.2d 58

CHARLES J. LARKEY, PROSECUTOR-RESPONDENT, v. CITY OF BAYONNE, THE BOARD OF COMMISSIONERS OF THE CITY OF BAYONNE, AND JOHN F. LEE, CITY CLERK OF THE CITY OF BAYONNE, DEFENDANTS-APPELLANTS.

Court of Errors and Appeals.Argued October 23, 1939 —
Decided January 25, 1940.

The transfer to the noncontinuing governing bodies of commission-governed municipalities of the appointive function exercised by local boards of health, continuous bodies, did not serve to modify the power as regards limitation of tenure.

On appeal from a judgment of the Supreme Court, whose opinion is reported in 123 N.J.L. 134.

For the appellants, William Rubin.

For the respondent, Alfred Brenner.

The opinion of the court was delivered by HEHER, J.

We concur in the views expressed by Mr. Justice Bodine for the Supreme Court.

It suffices to add, in response to the arguments so vigorously pressed here, that, since local boards of health are continuous bodies (Bodnar v. Board of Health of Carteret, 14 N.J. Mis. R. 318; affirmed, 117 N.J.L. 527), the transfer of the appointive function to the non-continuing governing bodies of commission-governed municipalities did not serve to vary the quality of the power, i.e., to set up two radically different classes in respect of the limitation of the tenure, with no basis of distinction save the general form of the municipal government. The question in the final analysis is one of legislative intent; and we do not discern a purpose to modify in this substantial particular the general appointing power bestowed upon local boards of health when that function is under the statute exercised by the governing bodies of commission-governed municipalities. Such lack of

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uniformity is not to be imputed to the legislature in the absence of explicit provision therefor.

Judgment affirmed.

For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, CASE, DONGES, HEHER, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 12.

For reversal — None.