Oliver v. Daly

• Decision Date: 27 October 1926
• Citation: 134 A. 870
• Parties: OLIVER et al. v. DALY et al., Board of Com'rs of City of Bayonne.
• Court: New Jersey Supreme Court

134 A. 870

OLIVER et al.

v. DALY et al., Board of Com'rs of City of Bayonne.

Court of Errors and Appeals of New Jersey.

Oct. 27, 1926.

White and Black, JJ., dissenting.

Appeal from Supreme Court.

Certiorari by Augusta Oliver and others against Bert Daly and others, as Board of Commissioners of City of Bayonne, to review validity of certain resolutions of the board. The resolutions were set aside as illegal by the Supreme Court (131 A. 678), and defendants appeal. Modified.

James Benny, of Bayonne, and Robert H. McCarter, of Newark, for appellants.

Isaac Gross, of Jersey City, and Merritt Lane, of Newark, for respondents.

GUMMERE, C. J. The legal voters of the city of Bayonne, at an election held on March 9, 1915, adopted as the municipal charter of the city the statute of April 25, 1911, generally referred to as the "Walsh Act" (Supp. to Comp. Stat. p. 1087). That statute provides for government by commission, such commission to consist—in cities having as large a population as Bayonne—of a board of five members, who are to hold office for a term of four years each.

The fourth section of that act distributes the executive, administrative, judicial, and legislative powers, authority, and duties of the city of Bayonne into and among five departments, as follows:

"(1) Department of public affairs. (2) Department of revenue and finance. (3) Department of public safety. (4) Department of streets and public improvements. (5) Department of parks and public property."

The present board of commissioners, consisting of Messrs. Talbot, Hosford, O'Connell, Axford, and Daly, was elected on May 8> 1923; and, pursuant to the requirement of the statute, designated by a majority vote Talbot as mayor of the municipality, and, ipso facto, as director of the department of public affairs, Hosford as director of the department of revenue and finance, O'Connell as the director of the department of public safety, Axford as the director of streets and public improvements, and Daly as the director of the department of parks and public property.

During the latter part of the year 1924 the board passed a series of resolutions—seven in number—by a majority vote of three to two; Messrs. Hosford, Axford, and Daly voting in the affirmative, and Messrs. Talbot and O'Connell in the negative. The first of these resolutions was adopted on October 7th, and the other six on December 2d. Shortly after this latter date Talbot and O'Connell, together with a taxpayer of the city, Mrs. Oliver, sued out a writ of certiorari to test the validity of these resolutions, charging that each one of them was adopted, not with intent to benefit the people of the municipality, whose official servants the majority members of the board were, but in betrayal of the trust imposed upon them by the acceptance of their respective offices, and solely for the purpose of punishing the minority members for conduct in their respective departments that was in defiance of the wishes of political friends of the members constituting the majority.

The Supreme Court, upon the hearing had upon the return of the certiorari, considered that this charge, made by the prosecutors in support of their contention that these resolutions were invalid, was sufficiently supported by the proofs submitted, and for that reason ordered the entry of judgment annulling each of them. From that judgment the present appeal is taken.

We are not able to concur with the Supreme Court in its view that the charge laid against the majority members of the board was supported by evidence sufficiently cogent and convincing to justify a conviction of the offense embraced in the charge, which, to put it mildly, savors of criminality. The evidence, although sufficiently strong to create a suspicion of the truth of the charge, falls far short of the measure of proof required to justify the conclusion that the majority members were guilty of the offense charged against them. Reaching this conclusion, and assuming that the majority of the members voted for these resolutions in good faith, and in the belief that their adoption would be for the public benefit, we proceed to the consideration of the question whether any of them are unauthorized, under the provisions of the Walsh Act.

On the 7th of October, 1024, as has already been stated, the board met, and adopted the first of the resolutions under review, which, after reciting that, in the opinion of the board, the public service would be benefited by its provisions, appointed and designated Daly as director of public safety in the place of O'Connell, and O'Connell as the director of parks and public property in the place of Daly; in other words, shifted these two heads of departments, one taking the place of the other.

Section 4 of the statute, after authorizing and directing the board of commissioners, at its first regular meeting after the election of its members, to designate by majority vote one commissioner to be the head of each of the several departments already named, then provides that such designation may be changed by the board whenever it appears that the public service will be benefited thereby. The purpose of this provision of the statute, as we see it, is that normally the head of a department, when once designated by the board, shall hold that position during his term of office, subject, however, to be transferred to another department as its head whenever, in the opinion of the board of commissioners, the public service would be benefited by such transfer. In the present case the board, by the resolution now being considered, expressly declared that such transfer would be for the public benefit, and, as we have already stated, the proofs submitted do not justify a judicial declaration that the majority membership of the board, in adopting this resolution, were not honestly...