Fryer v. Norton

• Decision Date: 16 June 1902
• Citation: 52 A. 476,67 N.J.L. 537
• Parties: FRYER v. NORTON, Mayor, et al.
• Court: New Jersey Supreme Court

52 A. 476

67 N.J.L. 537

FRYER

v. NORTON, Mayor, et al.

Court of Errors and Appeals of New Jersey.

June 16, 1902.

(Syllabus by the Court.)

Error to supreme court.

Action by Samuel Fryer against Richard D. Norton, mayor, etc., and others. Judgment for plaintiff (50 Atl. 661), and defendants bring error. Affirmed.

Linton Satterthwaite, for plaintiffs in error.

Aaron V. Dawes, for defendant in error.

MAGIE, Ch. The record brought up by this writ of error discloses a judgment of the supreme court annulling a ruling and decision of Norton, mayor of the borough of Hightstown, declaring the seat of Fryer in the council of that borough to be vacant. the action of the supreme court had been invoked by Fryer, on whose prosecution a certiorari was allowed, which brought into that court the ruling and decision which was vacated by the judgment complained of. It was made to appear in the supreme court that on August 14, 1901, Fryer, who was then a member of the council of the borough of Hightstown, whose term of office would not expire until March, 1904, wrote a letter addressed to the "Honorable Mayor and Councilmen" of the borough, tendering his resignation "as a member of your body." This letter was delivered to the mayor during a meeting of the council over which he was presiding in the manner prescribed by "A general act relating to boroughs" (Revision 1897; P. L. 1897, p. 285). It was given by the mayor to the clerk of the council, and was read to the council by the latter. Thereupon a motion not to accept the resignation was made and carried. It further appeared that on September 30th following, Norton, the mayor, gave Fryer written notice that he accepted the resignation previously tendered by the letter of August 14th. On October 1st, at a meeting of the council (Fryer being present), the mayor announced that he had accepted the resignation, and he nominated a person to fill the vacancy. Council refused to confirm the nomination. Thereupon the mayor made the decision complained of, against which Fryer protested.

From the opinion of the supreme court, it appears that its determination was deemed to be supported upon two grounds. The first ground upon which the decision was put in the opinion below was thus stated: The supreme court recognized as a general rule applicable to all public officers that a resignation of their office does not become complete until it is presented to the proper authority and accepted by it, and that, in the absence of any special rule prescribing to what authority a resignation should be presented, the proper authority to accept a resignation is that which has power to fill the vacancy. In this exposition of the law we entirely concur; and deem it to be founded on reason and supported by the better authority. Reeves v. Ferguson, 31 N. J. Law, 107; Whitney v. Van Buskirk, 40 N. J. Law, 463; Bird v. Johnson, 59 N. J. Law, 59, 34 Atl. 929; Townsend v. Trustees, 41 N. J. Law, 312; Throop, Pub. Off. § 408 et seq.; Mechem, Pub. Off. § 418 et seq.; Edwards v. U. S., 103 U. S. 471, 26 L. Ed. 314. It was then held that by the construction of the pertinent provision of the borough act of 1897, ubi supra, which was applicable to this municipality, the power to fill a vacancy in the office of councilman was vested in the mayor and council of the borough. It was thence concluded that Fryer, on October 1st, remained a councilman, and entitled to act as such, because he had presented his resignation to the mayor and council, and it had not been accepted, and therefore the office was not vacant, and Fryer remained its incumbent. In my judgment, this conclusion is also correct. By a clause in section 3 of the borough act under consideration it is enacted that "the mayor shall nominate and with the advice and consent of the council shall appoint, all officers in this act directed to be appointed, including the filling of vacancies in elective offices." The office of councilman is an elective office. To fill a vacancy in that office it is required that the mayor shall appoint, but the appointment made by him is not effective except by the consent of council. To appoint requires the nomination of the mayor and the concurrence of the council. By article 2, § 2, of the constitution of the United States, there is conferred on the president the power to fill vacancies (in offices to which he may appoint with the advice and consent of the senate) occurring during the recess of the senate, and he may give commissions to officers so appointed by him, to expire at the end of the next session of the...