Brinkerhopf v. City of Jersey City

• Decision Date: 01 May 1900
• Citation: 64 N.J.L. 225,46 A. 170
• Parties: BRINKERHOPF v. CITY OF JERSEY CITY.
• Court: New Jersey Supreme Court

46 A. 170

64 N.J.L. 225

BRINKERHOPF

v. CITY OF JERSEY CITY.

Court of Errors and Appeals of New Jersey.

May 1, 1900.

(Syllabus by the Court.)

Error to supreme court.

Action by William Brinkerhoff against the city of Jersey City. Judgment for plaintiff. Defendant brings error. Affirmed.

Allan L. McDermott, for plaintiff in error. Charles L. Corbin, for defendant in error.

MAGIE, C. J.The judgment brought here by this writ of error was rendered upon a verdict directed by the trial judge. The action of Brinkerhoff, in whose favor the verdict was directed, was brought to recover the salary or compensation for services as corporation counsel of Jersey City for January, February, and March, 1894. It appeared in evidence that on December 27, 1893, Brinkerhoff had been appointed to that office by the votes of four of the five members of the board of finance of said city. The evidence appearing in the bills of exception discloses that Brinkerhoff, after such appointment, was inducted into the office of corporation counsel, and during the period mentioned performed such of its duties as were required of him. Under the doctrine laid down by this court in Erwin v. City of Jersey City, 60 N. J. Law, 149, 37 Atl. 732, he thereby became de facto the corporation counsel of the city, and entitled to the emoluments of the office.

This conclusion would dispose of the case, but for the contention that under the provisions of the "act relating to officers in cities who now hold or hereafter shall hold their offices for a fixed period," approved February 28, 1881 (1 Gen. St. p. 571, § 542), Mr. Edwards, the previous corporation counsel of said city, whose term of office expired in April, 1893, continued to hold the office until his successor had been appointed and qualified. It is thereupon insisted that, when there is an officer de jure having a present right to the office, there cannot be an officer de facto of the same office. But this proposition is opposed to numerous adjudged cases, in which the acts of de facto officers have been held to be valid official acts, although they have been afterwards ousted from office upon the prosecution of de jure incumbents of such offices.

It is thereupon next insisted that there was evidence to go to the jury sufficient to justify the inference that during the period in question Mr. Edwards, the former corporation counsel, continued to fill the office. This contention requires the consideration of the right to office of Mr. Edwards, and whether or not Brinkerhoff had acquired, not a mere de facto, but a de jure, title thereto. This contention was not made, either in the supreme court or in this court, in Erwin v. City of Jersey City, supra. This question thus arises: If the board of finance was empowered to appoint a corporation counsel, and the act of the board in appointing required the concurring votes of four members, what title was conferred by an appointment effected by the necessary vote of one member who was only a member de facto? The supreme court, in Erwin v. City of Jersey City, 59 N. J. Law, 282, 35 Atl. 948, declared its opinion to be that a de facto appointing board could not create a de jure officer by its appointment. When that case was reviewed in this court (Erwin v. City of Jersey City, 60 X. J. Law, 141, 37 Atl. 732), it was deemed unnecessary to express any opinion on that subject; the case being disposed of on other grounds. But upon the contention now made it is considered necessary to review and decide the question of the power of de facto officers to create by appointment an officer de jure.

By the provisions of "an act concerning the appointment of municipal officers and boards in cities," passed March 11, 1893 (Laws 1893, p. 224), it was enacted that the corporation counsel in cities of the first class should be appointed by the board in such cities having charge of the financial affairs thereof and charged with the duty and power of confirming the annual tax levy, by a vote of not less than two-thirds of all the members of such board. In the litigation respecting the right of Erwin to the office of corporation attorney of Jersey City, the constitutional validity of this act was attacked. Our examination of the act has resulted in finding it not open to that objection. Its title is not restrictive or misleading, nor is the classification of cities on which it operates illusory. Kennedy v. Borough of Belmar, 61 N. J. Law, 20, 38 Atl. 756; Johnson v. Borough of Asbury Park, 58 N. J. Law, 604, 33 Atl. 850; Id., 60 N. J. Law, 427, 39 Atl. 693. By the provisions of that act the power to appoint a corporation counsel in Jersey City was vested in the board of finance, consisting of five members. The appointment, therefore, could only be made by the concurring vote of four members. Brinkerhoff's appointment was made by the votes of four members, one of which votes was cast by John D. Fraser, who sat in and was recognized by the board as a member. Fraser's title to membership in the board was afterwards questioned on quo warranto, and he was ousted from his position by the judgment of the supreme court. Edelstein v. Fraser, 56 N. J. Law, 3, 28 Atl. 434. But, before ouster, Fraser was, upon the evidence before us, a member of the board of finance de facto. Such an office existed, and Fraser was recognized by the other members of the board as the incumbent of it. There was an office de jure, and there could be an incumbent de facto. Norton v. Shelby Co., 118 U. S. 435, 6 Sup. Ct. 1121, 30 L. Ed. 178; Flancber v. City of Camden, 56 N. J. Law. 244, 28 Atl. 82.

The effect of the acts of officers de facto is thus stated by careful text writers: Mr. Mechem declares that the lawful acts of an officer de facto, so far as the rights of third persons are concerned,...