Byrnes v. Boulevard Com'rs of Hudson County

• Citation: 197 A. 667
• Parties: BYRNES et al. v. BOULEVARD COM'RS OF HUDSON COUNTY et al.
• Decision Date: 09 March 1938
• Court: New Jersey Circuit Court

197 A. 667

BYRNES et al.

v. BOULEVARD COM'RS OF HUDSON COUNTY et al.

Circuit Court of New Jersey, Hudson. County.

March 9, 1938.

Action by Peter Byrnes and others against the Boulevard Commissioners of the County of Hudson and the County of Hudson to recover salaries from the time of the alleged illegal discharge of the plaintiffs by the Hudson County Park Commission to the time of their reinstatement by the Boulevard Commissioners of Hudson County.

Judgment for defendant.

Frank H. Eggers, of Jersey City, for plaintiffs. J. Emil Walscheid, of Jersey City, for defendants.

BROWN, Judge.

The above-entitled cause was tried before the court without a jury upon the pleadings and an agreed state of facts. The plaintiffs are fifty-eight in number, fifty-seven of whom were within the classified service of the Civil Service Act, Laws 1908, c. 156, § 11 et seq., 3 Comp.St.1910, p. 3799 et seq., § 67 et seq., as amended and supplemented R.S.1937, 11:22-3 et seq., Comp.St.Supp.1924, § 144 —67 et seq., Comp.St.Supp.1930, § 144 —68, and one, the head of the Police Department of the Hudson County Boulevard Commission, in the unclassified service as defined in that act, R.S.1937, 11:22-2, Comp.St.Supp.1924, § 144 —67. The suit is brought to recover salaries from the time of the alleged illegal discharge of the plaintiffs by the Hudson County Park Commission to the time of their reinstatement by the defendant Boulevard Commissioners of Hudson County. The law under which the Hudson County Park Commissioners assumed office was declared constitutional by the New Jersey Supreme Court and that decision was reversed by the New Jersey Court of Errors and Appeals. The offices and positions held by the plaintiffs were abolished and the plaintiffs discharged on the ground of economy by the Hudson County Park Commission while that body assumed jurisdiction over the offices and positions of the plaintiffs, as well as other matters, theretofore controlled by the defendant commissioners.

According to the facts stipulated, it is agreed that on April 22, 1930, the defendant commissioners had as its members Theodore A. Kleffman, John G. Meister, and Frank B. Chapman. On that date the Legislature passed a law, chapter 261, P.L.1930, p. 1092, Comp.St.Supp.1930, § § 48 —*2000G et seq., wherein it was enacted that the office of the defendant Boulevard Commissioners was abolished and all the duties and powers vested by law in such commissioners were thereafter to be exercised and performed by the Hudson County Park Commission. On the date last mentioned the Legislature passed an act, chapter 262, P.L.1930, p. 1093, Comp.St.Supp.1930, § § 165 —5j3, 165 —60, amending chapter 277, P.L.1902, p. 811, by which amendment the government and control of Hudson County Parks were intended to be vested in the Hudson County Park Commission, the members of which were to be appointed by the Governor instead of the judges of the court of common pleas. The amendment provided the Park Commission was a body politic, with power to sue and be sued and exercise the usual powers of passing by-laws and completing other organization matters. The Governor, pursuant to the law enacted, appointed James W. McCarthy and four others to be known as the Hudson County Park Commission. Those appointees organized and thereupon demanded of Theodore A. Kleffman and his associates a surrender of the franchises, books, papers, and the like of the Boulevard Commissioners. The demand was refused, and on April 29, 1930, McCarthy and his associates filed in the New Jersey Supreme Court an information in the nature of a writ of quo warranto against Kleffman and his associates. On November 18, 1930, a judgment of ouster was entered in the quo. warranto proceedings in favor of McCarthy and his fellow appointees. See McCarthy et al. v. Kleffman et al., 107 N.J.L. 223, 152 A. 175. Kleffman and the other Boidevard Commissioners in compliance with the judgment of ouster did surrender all the insignia of their office and immediately ceased to function as Boulevard Commissioners and those functions were transferred to and assumed by the Hudson County Park Commission. The defendant Boulevard Commissioners thereupon appealed the judgment of ouster to the New Jersey Court of Errors and Appeals, which Court reversed the judgment of the New Jersey Supreme Court on October 20, 1931, and decided that chapters 260, 261, and 262, P.L.1930, Comp.St. Supp.1930, § § 48 —*2000G et seq., 165 —58 165 —58a, 165 —60, were unconstitutional and void. See McCarthy et al. v. Kleffman et al, 108 N.J.L. 282, 156 A. 772. McCarthy and his associates while functioning as the Hudson County Park Commission did discharge the plaintiffs from their respective positions and did abolish their positions "as useless and unnecessary to the efficient and economical conduct of the administration of, the affairs of said Hudson County Park Commission." Group No. 1 of plaintiffs as set forth in the facts stipulated were discharged by resolution adopted December 1st, 1930; Group No. 2 by resolution adopted February 3, 1931; and Group No. 3 by resolution adopted September 14, 1931. The defendant Boulevard Commissioners restored all the plaintiffs to their positions by a resolution adopted by those commissioners on December 1, 1931.

The claims of the plaintiffs cover the period from the date of discharge to the date of reinstatement. Though the plaintiffs were promptly notified of their discharge by the Hudson County Park Commission, no appeal or complaint was lodged with the Civil Service Commission nor any other action taken to test the legality of their discharge. The plaintiffs did not render any services from the time of their discharge to the date of their reinstatement though they claim to have been ready, able, and willing to do so; no offer was made in that direction. The agreed state of facts contains the Civil Service Classification of the plaintiffs, as hereinbefore stated; a description of their positions and the amount of salaries claimed due amounting in all to $115,724.43. The plaintiffs contend the action of the Hudson County Park Commission in discharging the plaintiffs was void and of no effect ab initio because the legislation creating that commission was declared unconstitutional and therefore the plaintiffs were illegally discharged from their positions. The plaintiffs argue the members of the Park Commission were not de facto officers for they claim there was no office de jure for them to occupy; that they had no apparent authority to act; that the law creating them was void from the beginning and continued to be without legal effect and afforded neither apparent power or color of title. In support of these contentions reference is made to the cases of Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178; Flaucher v. Camden, 56 N.J.L. 244, 28 A. 82; Toomey v. McCaffrey, 116 N.J.L. 364, 184 A. 835; and particularly Hyman v. Long Branch Kennel Club, Inc., 115 N.J.L. 123, 179 A. 105. The defendants contend that the decision of the New Jersey Supreme Court upholding the legislation under which the Boulevard Commissioners were ousted from their offices and the Park Commission having assumed the powers and duties of the Boulevard Commissioners constituted the law of the state until reversed by the Court of Errors and Appeals, and all acts done by the Park Commission in pursuance of the law thus declared prior to such reversal are valid so far as they involve the interests of the public or third persons. The action of the commission in abolishing the employment of the plaintiffs on the ground of economy in the public service was not void but legal and binding upon the plaintiffs. It is also contended the plaintiffs have no right to bring their- suit because the resolutions discharging them have not been passed upon by the Civil Service Commission and reviewed in certiorari proceedings.

The passage of time has not clarified, in the reported decisions, the dispute that has existed for many years as to the protection to be afforded to acts done under an unconstitutional law. In our state the case of Lang v. Bayonne, 74 N.J.L. 455, 68 A. 90, 93, 15 L.R.A.,N.S., 93, 122 Am. St.Rep. 391, 12 Ann.Cas. 961, decided the course to be followed in this State. Evidently the reason for the conclusion arrived at in that case was to keep disorder and chaos out of governmental affairs and establish a rule to that end. The rule is that: "An officer appointed under authority of a statute to fill an office created by that statute is a de facto officer, and that acts done by him antecedent to a judicial declaration that the statute is unconstitutional are valid, so far as they involve the interests of the public and third persons." This determination in the Lang Case does not appear to have been overruled in later decisions in our state. In Hyman v. Long Branch Kennel Club, Inc., 115 N.J.L. 123, 179 A. 105, 107 (a Court of Errors and Appeals decision), the court expressly stated that it did not reverse the above quoted finding in the Lang Case when in referring to that determination said: "With that we have no present quarrel, as it is not involved in this case." In a later case, Toomey v. McCaffrey, 116 N.J.L. 364, 184 A. 835, 836 (a Supreme Court decision), reference is made to the question of what constitutes a de facto officer, but the question was not decided in that case as plainly appears from the language used which is in part: "The question might arise in the mind of some, though it is not raised in the briefs of either side, whether the relator might not, as a de facto officer, have acquired rights to this office. That consideration immediately raises the query as to whether there can be a de facto officer when a de-jure office does not exist. It has been held that there cannot legally be a de facto officer unless there is an office de jure. Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 1127, 30 L.Ed. 178...