Gulnac v. Bd. of Chosen Freeholders of Bergen County

• Decision Date: 03 July 1906
• Citation: 64 A. 998,74 N.J.L. 543
• Parties: GULNAC v. BOARD OF CHOSEN FREEHOLDERS OF BERGEN COUNTY.
• Court: New Jersey Supreme Court

64 A. 998

74 N.J.L. 543

GULNAC

v. BOARD OF CHOSEN FREEHOLDERS OF BERGEN COUNTY.

Court of Errors and Appeals of New Jersey.

July 3, 1906.

(Syllabus by the Court.)

Error to Supreme Court

Certiorari by James M. Gulnac against the board of chosen freeholders of the county of Bergen. From an order, rescinding a resolution of such board, it brings error. Affirmed.

Peter W. Stagg, for plaintiff in error. W. J. Knight (Ernest Koester and Edmund W. Wakelee on the brief), for defendant in error.

SWAYZE, J. The defendant in error brought up by certiorari a resolution of the freeholders of Bergen adopted January 1 1906, rescinding a resolution adopted by the former board on December 4, 1905. declaring that the county buildings were inadequate, and that new buildings were necessary. The Supreme Court set aside the rescinding resolution. The only question presented by this writ of error is the validity of the action of the freeholders on January 1, 1906. The original resolution of December 4, 1905, was adopted in pursuance of the act of April 3, 1902 (P. L. 1902, p. 369). The act provides that upon the adoption of such a resolution, a county building committee shall be constituted, and by the act of 1901 (P. L. 1901, p. 79) this committee is empowered to erect and furnish county buildings. Such a committee was appointed, pursuant to the statute immediately upon the passage of the resolution of December 4th, and the resolution of January 1st, if valid, has the effect of abolishing the offices of members of this committee. We think it unnecessary to pass upon the general question of the power of a board of freeholders to reconsider action which is judicial or quasi judicial in its nature. This question has been recently before the Supreme Court, and the power to reconsider an appointment at the same or an adjourned meeting has been affirmed. Stiles v. Lambertville (N. J. Sup.) 62 Atl. 288. The present ease is distinguished by the fact that the resolution of January 1st was adopted by a different board from that which adopted the prior resolution. The terms of 14 members of the board of 1905, a majority of the whole, expired at noon on January 1st. The resolution in question was adopted by 12 members of the new board, who met at noon on that day, in the absence of their 11 associates.

It has been held in the Supreme Court that the right of a deliberative body to reconsider its vote in matters of this kind, ceases when a final determination has been reached. Whitney v. Van Buskirk, 40 N. J. Law, 463. With this view we agree. We think further that the determination reached is final as soon at least as the existence of the body, to which the law entrusts the decision, ends. Subsequent adverse action by a different body is repeal rather than reconsideration. The Legislature in the present ease has entrusted the decision of the question of fact to one board of freeholders. It has not required the concurrent action of two successive boards. Although only a portion of the board of freeholders goes out of office each year, the body itself is not a continuous body. The reasons which led to the decision that the Senate of New Jersey is not a continuous body, are quite as cogent in the case of a board of chosen freeholders. State v. Rogers, 56 N. J. Law, 480, 28 Atl. 726, 29 Atl. 173. The fact that the board of 1905 had a rule which authorized a reconsideration at the next regular meeting, is not important. That was a mere rule of procedure, and affected the action of the board of 1905 only. The regular meeting referred to in the rule could only be a regular meeting of the board which was governed by the rule. Even if the same rule were adopted by the new board, the effect could not be to require more than the Legislature had seen fit to exact it was argued that because the municipal corporation created by the Legislature to administer the affairs of counties is perpetual, the body which actually exercises those powers is also perpetual; but the distinction is as clear as the distinction between a private corporation and its board of directors, and was recognized in the very case cited by counsel upon the argument. Allen v. Freeholders of Hunterdon, 71 N. J. Law, 247, 58 Atl. 346. In that case, although no new corporation had been established, the Supreme Court directed that notice should be given to the new board of freeholders, evidently for the reason that the persons charged with the defense of the county's interests had changed, although the corporation which had already been made a party to the writ, remained the same.

The judgment under review must be affirmed, with costs.

GREEN, J. (concurring). I file this brief memorandum of my views, because, although I concur in the affirmance of the judgment reviewed, I do not reach this result by a line of reasoning exactly the same as that pursued in the prevailing opinion. The proceedings taken up to the Supreme Court by the writ of certiorari in this case were, in particular, these: "Moved by Kruger, seconded by Alyea, That the vote by which the resolution declaring the courthouse and public buildings in use for public offices to be inadequate, passed at the last meeting, be reconsidered. Upon roll call, 12 members present voted in the affirmative. The resolution was declared carried unanimously. The director then announced that the original resolution was before the board for action. A vote upon the same being called for, resulted as follows: (all voting 'No.') The original resolution was declared lost." The original resolution (or resolutions) referred to was in these words: "Resolved that the county buildings, including the courthouse, sheriff's office, jail, county clerk's office, and other offices now in use for public offices are inadequate for the needs and uses of the county, and that new buildings for such purposes are necessary; and be it further resolved, for the purpose of acquiring necessary land and the construction of a building, that the county building committee be constituted in the manner provided by the statute in such case...