Heller v. Ticknor, A--363

• Decision Date: 19 February 1965
• Docket Number: No. A--363,A--363
• Parties: Jack HELLER, O'Brien Boldt and David Oxman, Plaintiffs-Appellants, v. William D. TICKNOR, Jr. and The Common Council of the City of Englewood, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 501

86 N.J.Super. 501

207 A.2d 336

Jack HELLER, O'Brien Boldt and David Oxman, Plaintiffs-Appellants, v. William D. TICKNOR, Jr. and The Common Council of the City

of Englewood, Defendants-Respondents.

No. A--363.

Superior Court of New Jersey

Appellate Division.

Argued Feb. 8, 1965.

Decided Feb. 19, 1965.

Sylvia B. Pressler, Englewood, for appellants.

William V. Breslin, Englewood, for respondents.

Before Judges GOLDMANN, SULLIVAN and LABRECQUE.

The opinion of the court was delivered by

SULLIVAN, J.A.D.

This appeal involves the issue whether the acting mayor of the city of Englewood, who assumed the duties of that office upon the resignation of the mayor, may continue to hold the office of councilman at large and exercise the powers and duties of councilman at large.

The facts are not in dispute and are as follows. The City of Englewood was incorporated by chapter 40 of the Laws of 1899, which act took effect in March of 1899. On April 11, 1899 the newly incorporated City of Englewood, at a referendum election, by a majority of the qualified voters adopted chapter 52 of the Laws of 1899, (R.S. 40:109--1(1) et seq. (Acts Saved from Repeal)) N.J.S.A. The city has been governed ever since under the provisions of that act and its amendments and supplements.

The City of Englewood is divided into four wards. One councilman is elected from each ward, and one councilman is elected at large by the entire electorate of the city. The Common Council of the City of Englewood therefore is composed of five councilmen.

At the general election in November 1963 Francis J. Donovan was elected mayor for a term of two years. He duly qualified for that office and entered upon and performed the duties thereof. At the same election William D. Ticknor, Jr., was elected councilman at large for a term of two years. He duly qualified for that office and has since performed the duties as a member of the common council. At the organization meeting held on January 1, 1964, Ticknor was elected president of the common coluncil.

In December 1964 Mayor Donovan tendered his resignation as mayor, which was accepted to take effect December 16, 1964.

A vacancy in the office of mayor is admittedly governed by R.S. 40:171--20, N.J.S.A., ¹ applicable to cities generally, which provides:

'In the event of the death, resignation, disqualification, or other disability, of the mayor of any city, the president of the board of aldermen or common council shall act as mayor until the next general election; shall be known as acting mayor; shall have all the powers and privileges; be entitled to the same salary, and be chargeable with the same duties and obligations as the mayor of such city; provided, however, this act shall not affect any proceedings already instituted nor any act heretofore signed by any officer as acting mayor.

Pursuant to the foregoing statute, defendant Ticknor, as president of the common council, assumed the powers and duties of mayor, and took and filed an oath of office as acting mayor.

The city solicitor of Englewood rendered a formal opinion that Ticknor, while acting as mayor, also can continue to exercise the powers and duties of councilman at large. Since then, Ticknor has exercised the functions of both offices.

Plaintiffs, as residents, citizens and taxpayers, have filed the instant suit charging that the offices of mayor and councilman are incompatible and inconsistent, and that their simultaneous exercise by the same person is violative of the principle of separation of the executive and legislative functions. Specifically, plaintiffs contend that Ticknor, upon assuming the duties of acting mayor, created a vacancy in the office of councilman at large which must now be filled by the council in accordance with R.S. 40:109--3(9) (Acts Saved from Repeal) N.J.S.A. In the alternative, plaintiffs contend that even if it be determined that Ticknor retains his office of councilman while acting as mayor, he should not be permitted to exercise his councilmanic powers and duties.

Plaintiffs have not charged that any specific situation has occurred where Ticknor's performance of his duties as acting mayor has actually conflicted with his continuing to serve as councilman. Rather, their position is that the potentiality for conflict is real; therefore Ticknor should be barred from occupying or, at least, functioning in both capacities.

The trial court (86 N.J.Super. 200, 206 A.2d 467 (Law Div.1965)) ruled that the legislative intent, as expressed in R.S. 40:171--20, N.J.S.A., was that Ticknor, while acting as mayor, did not vacate his office as councilman at large and could continue to exercise the powers and duties of his councilmanic office. Judgment was entered in favor of defendants.

We conclude that Ticknor's assumption of the duties of acting mayor did not result in his vacation of the office of councilman at large. The statute does not provide that the president of the council shall succeed to the office of mayor and become the mayor. It does not confer upon him the title of the office. It empowers him only to serve as acting mayor. The legislative plan is that temporarily, until the next general election, the powers and duties of the office merely devolve upon the president of the council. Indeed, under R.S. 40:171--20, N.J.S.A. it seems clear that Ticknor can continue to act as mayor only so long as he remains president of the counsil; i.e., his status as council president, which in turn depends on his continuing in office as councilman, is a statutory requisite to his acting as mayor.

In Clifford v. Heller, 63 N.J.L. 105, 42 A. 155, 57 L.R.A. 312 (Sup.Ct.1899), which dealt, Inter alia, with the right of the president of the State Senate, upon the resignation of the Governor from office, to exercise the powers and duties of that office under the constitutional provision, it was held that he could continue to exercise such powers only as long as he remained a senator and president of the Senate, and that upon his resignation as senator he could no longer exercise the functions of the Executive Department.

The situation presented by Mayor Donovan's resignation is a temporary one. The vacancy in that office is required to be filled at the next general election. In the interim the statute assures continuity of government by providing that until a new mayor is elected, the...