Ayres v. Dauchert

• Decision Date: 23 October 1974
• Parties: Kenneth R. AYRES et al., Plaintiffs-Respondents, v. Terre L. DAUCHERT, Defendant-Appellant, and The Mayor and Council of the Borough of Cresskill, a Municipal Corporation, et al., Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 522

130 N.J.Super. 522

328 A.2d 1

Kenneth R. AYRES et al., Plaintiffs-Respondents, v. Terre L. DAUCHERT, Defendant-Appellant, and The Mayor and Council of the Borough of Cresskill, a

Municipal Corporation, et al., Defendants.

Superior Court of New Jersey,

Appellate Division.

Argued Sept. 19, 1974.

Decided Oct. 23, 1974.

Kurt E. Johnson, Glen Rock, for defendant-appellant.

Anthony D. Andora, East Paterson, for plaintiffs-respondents (Andora, Palmisano & DeCotiis, East Paterson, attorneys).

Before Judges MATTHEWS, FRITZ and BOTTER.

The opinion of the court was delivered by

FRITZ, J.A.D.

This is an appeal by defendant Terre L. Dauchert (Dauchert) from an adverse summary judgment in a suit in lieu of prerogative writs challenging his right to sit as a councilman in the Borough of Cresskill. The precise quwstion presented is whether a councilman--in this case, Dauchert--may extend his term by resigning his seat in order to accept appointment to a different council seat for a longer term, the vacancy of which was also created by resignation.

The facts are neither contested nor complex. Dauchert became a councilman when one Richard Devlin resigned on September 18, 1973, and Dauchert was appointed to serve until December 31, 1973. Pursuant to statute, the balance of the Devlin term was to be filed at the general election of November 1973. Dauchert ran for the seat in that election and was defeated. By letter of November 12, 1973, another councilman, Robert Muir, resigned his seat on the council. The term for which Muir was elected was to expire December 31, 1974. Shortly after Muir's resignation and some 13 days before the expiration of the term of his appointment, Dauchert resigned his interim councilmanic seat and was forthwith appointed to fill the Muir vacancy. It is that appointment which was successfully challenged below and is the subject of this appeal.

The question presented depends upon a determination of an issue that can be simply stated: Is there in the circumstances before us a sufficient potential for prejudice to the public weal that we should, as a matter of public policy, refuse to implement that which appears to us to be the reasonably clear intention of the Legislature in this regard? Resolution of the issue is more difficult. Our concern is more intense because we are satisfied for reasons which will appear that the Legislature expressly countenanced the conduct which was enjoined by the decision below in this case, and yet at the same time we can understand the trial judge's intuitive reaction that such action smacks of perfidy. In the long run, we must measure whether that sense of wrongness--or at least of a potential therefor--is sufficient to support judicial sanctions in the name of public policy.

It is to be noted at the outset that no chicane or fraud is charged here. Plaintiffs simply urge that a method of apparent self-perpetuation such as that they say was here invoked is contrary to public policy, and that this is especially true where, as here, the voters have rejected the candidate at a regular election. On the other hand, defendant urges that the mayor has been charged with the responsibility of filling vacancies in the elective offices, however created, limited by the advice and consent of the council (N.J.S.A. 40:87--12 and 13), and that public policy suggests he should not be circumscribed in the performance of this obligation by artificial rules limiting his selection of the best person. We make particular mention of this framework for our determination because we do not doubt the overrriding public policy opposed to a conflict of interest, private gain motivation or fraud in the execution of the public trust inherent in the holding of public office. Hazlet Tp. Committee v. Morales, 119 N.J.Super. 29, 289 A.2d 563 (Law Div.1972). Irrespective of our conclusion in the situation before us here, we would not hesitate for a moment to declare the illegality of conduct infected with any of those particular diseases. Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 86 A.2d 201 (1952), cert. den. 344 U.S. 838, 73 S.Ct. 25, 97 L.Ed. 652 (1952), reh. den. 344 U.S. 888, 73 S.Ct. 182, 97 L.Ed. 687 (1952). But these things are for the most part dependent upon the circumstances of the particular case, see Van Itallie v. Franklin Lakes, 28 N.J. 258, 268, 146 A.2d 111 (1958), and our review of the record before us satisfies us of the absence here of any of these improper and illegal elements.

Legislative direction is to be found in N.J.S.A. 40A:9--155. Enacted as L.1971, c. 200, effective July 1, 1971, this statute is as follows:

A member of the governing body of a municipality who resigns his office as such may be appointed to an office or position required to be filled by the governing body unless the office or position was created by ordinance adopted during the term of office of the member so resigning. In cases of any such appointment the salary of the holder of said office or position shall not be increased during the term of office of the member so resigning.

The legislative history of this particular statute, enacted as it was in a general revision of Title 40, contains no reference to the section with which we are involved, although there was a substantial conditional veto to the first enactment of this revision. However, prior statutory history and case law is enlightening.

An ancestor of the present statute is to be found in P.L.1885, p. 178, set forth in 3 Comp.Stats. 3478, § 79. This legislation directed:

That hereafter no member of * * * common council * * * shall, during the term for which he shall have been elected such member be eligible for election or appointment to any office that is now or hereafter may be by law required to be filled by any such * * * council * * *; provided, however, that this act shall not apply to any offices now required by law to be filled from any such appointing body.

In Doughty v. Scull, 96 A. 564 (Sup.Ct.1915) (not officially reported), this statute was held to prohibit the extension of the term in office of a councilman by the device of his resigning and accepting in lieu thereof the seat of another councilman who had also resigned.

A general revision of the law of municipalities in 1917 incorporated essentially the same statutory provision. L.1917, c. 152, Art. XXXVII, § 23 (Laws of 1917, p. 461).

With the adoption of the revised statutes in 1937 the statute was reenacted in precisely the same form except for a minor change in form in the provision concluding the statute. R.S. 40--46--5. Between that enactment and the revision appearing at Title 40A, presently extent, amendments eroded the limitation of the statute, including the following:

* * * provided, nothing herein contained shall prohibit a councilman * * * from resigning as councilman * * * and being appointed to a position required to be filled by the governing body of a municipality during the time for which he was elected such councilman * * *; provided, further, that said position shall have been in existence and continuously filled for 5 years or more prior to the passage of this act or was created by statute; provided, said position was not created during said term of office; and provided further, that the salary of said office shall not be increased during the term for which said councilman * * * was elected.

The courts were again called upon to answer the question presented in Doughty (and here), but this time under N.J.S.A. 40:46--5, as amended. The result was the same: the statute was held to prohibit the resignation of a councilman to accept a different councilmanic seat. Bernstein v. Krom, 108 N.J.Super. 176, 260 A.2d 269 (Law Div.1969). ^* Because of the amendment to the statute which was to occur shortly after Bernstein v. Krom, it is notable that this opinion construed the statute as it did because the amended statute spoke in terms of appointment to a 'position' and the court distinguished the council seat as an 'office.' It is true that the judge in Bernstein v. Krom then said that had the Legislature intended to include 'office' in the use of the word 'position,' he still would have found that public policy precluded the resignation and reappointment proposed in the circumstances of the cases before him, but the circumstances of that particular case were sufficiently unique that in his determination in this latter respect he italicized 'on the facts of this case.'

It is assumed that the Legislature is 'thoroughly conversant with its own legislation and the judicial construction of its statutes.' Brewer v. Porch, 53 N.J. 167, 174, 249 A.2d 388, 391 (1969). It must therefore be presumed to have known of the foregoing legislative history and of Bernstein v. Krom when the present statute, N.J.S.A. 40A:9--155, was enacted.

This present statute, which controls the case before us, is significantly different from its predecessors. In the first place, it is affirmative and permissive in character, whereas the previous statutes all prohibited something. Secondly, the Only prohibition presently attaching is against appointing a resigning councilman for the filling of an 'office or position * * * created by ordinance adopted during the term of office of the member so resigning.' Finally, and considering Bernstein v. Krom, dispositively, the statute is no longer expressed solely in terms of a 'position,' but the affirmatively expressed competencies of a resigned member are set forth in crecise terms of appointment 'to an office or position.' We have no doubt that the Legislature, presumed to know the case law, clearly intended to express its displeasure with and correct the result of Bernstein v. Krom, decided less than four months before the introduction of chapter 200 of the Laws of 1971.

As against the suggestion of plaintiffs here that the reference in the statute to the creation of an office or position by ordinance and the reference...