Prezlak v. Padrone

• Decision Date: 29 March 1961
• Docket Number: No. L--8257,L--8257
• Citation: 67 N.J.Super. 95,169 A.2d 852
• Parties: Maurice G. PREZLAK and Marie Prezlak, his wife, Plaintiffs, v. Carl A. PADRONE and Donald F. MacArt, Defendants.
• Court: New Jersey Superior Court

Page 95

67 N.J.Super. 95

169 A.2d 852

Maurice G. PREZLAK and Marie Prezlak, his wife, Plaintiffs, v. Carl A. PADRONE and Donald F. MacArt, Defendants.

No. L--8257.

Superior Court of New Jersey

Law Division.

March 29, 1961.

Julius Fielo, East Orange, for plaintiffs.

Russel E. Greco, Harrison, for defendants.

MATTHEWS, J.C.C. (specially assigned).

This is a proceeding in lieu of prerogative writs, in which plaintiffs, as citizens and taxpayers of the City of East Orange, challenge the action taken by a bare majority of the remaining members of the city council of that city in seating the defendant Padrone as a member of such council.

At the outset, it is observed that plaintiffs are proper parties to the action herein instituted in that they do not seek to attack the existence of the office in question, but rather attack only the right of the defendant Padrone to hold such office. Goff v. Hunt, 6 N.J. 600, 80 A.2d 104 (1951).

The facts leading to the controversy presently before the court are not in dispute, and have been stipulated by counsel to embrace essentially the following: On January 2, 1961, the first of January falling on a Sunday, the city council of the City of East Orange, as required by law, convened and its duly elected members organized and thereupon transacted business. On January 3, 1961, Edward E. Ruhnke, Sr., who had been elected to the office of councilman from the first ward of the City of East Orange, at the general election held November 8, 1960, resigned his office as councilman. Such resignation was accepted by the city council. Mr. Ruhnke's term as councilman commenced January 1, 1961, to terminate December 31, 1962.

The City of East Orange is a municipal corporation and functions under the provisions of R.S. 40:103--5, N.J.S.A. (Acts Saved From Repeal), this charter being a compilation of a series of general laws: L.1908, c. 250; L.1910, c. 249; L.1911, c. 87; L.1912, c. 165, 192, 249; L.1914, c. 135; L.1915, c. 123, 153, 205; and L.1960, c. 126.

For the purposes of local government, the city is divided into five wards, from each of which two councilmen are elected, forming a city council composed of a total number of ten councilmen.

Following the resignation of Mr. Ruhnke, the city council met in a properly convened meeting on January 9, 1961; there were present at this meeting the nine remaining members of the city council. During the course of the meeting one Norman E. Scull was nominated to fill the vacancy caused by Mr. Ruhnke's resignation. Mr. Scull's appointment was defeated by a vote of five councilmen to four. Following the rejection of Mr. Scull, the name of the defendant Padrone was placed in nomination, and upon consideration thereof a vote of five councilmen for the seating of Mr. Padrone and four against was recorded. The chairman of the council, defendant MacArt, thereupon declared the defendant Padrone to be appointed to the city council to fill the vacancy caused by the resignation of Mr. Ruhnke. An appeal from the chairman's ruling was lost by a four to four vote, in the taking of which the defendant MacArt abstained. Upon the motion appealing the ruling having been defeated, defendant Padrone was permitted to take the oath of office and assume a seat on the city council as a representative of the first ward.

The plaintiffs do not claim that defendant Padrone is not a citizen and taxpayer of the City of East Orange, or that he is not a resident of the first ward thereof. Horwitz v. Reichenstein, 15 N.J. 6, 103 A.2d 881 (1954); Krulish v. Evans, 16 N.J. 200, 108 A.2d 177 (1954).

Plaintiffs' attack on the right of defendant Padrone to hold the office of city councilman from the first ward is based upon their construction of two sections of the city charter. Insofar as is pertinent here, the essential provisions of these sections, R.S. 40:103--5(12), N.J.S.A., and R.S. 40:103--5(35), N.J.S.A., are as follows 40:103--5(12)

'12. In case a vacancy shall occur, for any reason, in any elective office the city council shall have power to fill such vacancy by the appointment of a suitable person to hold such office for the unexpired term.

'In case a vacancy shall occur, for any reason, in any appointive office the same shall be filled in the same manner as the original appointment to such office was made, but only for the unexpired term. * * *'

40:103--5(35)

'35. A majority of the whole number, as herein provided, of the members of the city council shall constitute a quorum for the transaction of business; and no corporate action shall be taken, except by the affirmative votes of at least a majority of the whole number, as herein provided, of the members of the city council and no ordinance shall be passed on or adopted, except at a regular meeting of the city council. * * *'

Succinctly, plaintiffs contend that proper construction of section 35, which provides that a majority of the whole number of the members of the city council shall constitute a quorum for the transaction of business, and that such majority is required for the taking of corporate action, controls the appointive power granted to the city council under section 12. Under plaintiffs' contention, an appointment to fill a vacancy on the city council would require the affirmative vote of at least six of the members of the city council, since the whole number of the council is ten. Actually, there is no dispute between plaintiffs and defendants as to what constitutes the whole number of the city council. Defendants have conceded in their brief and oral argument that proper construction of the clause, 'A majority of the whole number, as herein provided, of the members of the city council shall constitute a quorum for the transaction of business,' results in a determination that the whole number of the East Orange city council is ten (there being provision in the charter for the election of two councilmen from each ward) and that a majority of such whole number is six. There are many decisions in this State which support this construction of the aforementioned clause. See Mason v. Mayor, etc., of City of Paterson, 35 N.J.L. 190 (Sup.Ct.1871); Doughty v. Scull, 96 A. 564 (Sup.Ct.1915) (not officially reported); Dombal v. City of Garfield, 129 N.J.L. 555, 30 A.2d 579 (Sup.Ct.1943); cf. Field v. Soffe, 79 N.J.L. 12, 74 A. 265 (Sup.Ct.1909); Day v. Lyons, 70 N.J.L. 114, 56 A. 153 (Sup.Ct.1903); State ex rel. Hawkins v. Cook, 62 N.J.L. 84, 40 A. 781 (Sup.Ct.1898). All of the foregoing cases construe clauses reasonably similar to the clause in question, but none construes the charter presently before this court. In any event, construction of the provision which determines that a majority of the whole number of a body requires the presence of a majority of all seats of that body, whether filled or not, has been firmly established in our common law. See Hascard v. Somany, 1 Freem. 504, 89 E.R. 380 (K.B.1693); Rex v. Bellringer, 4 T.R. 810, 100 E.R. 1315 (K.B.1792); Cadmus v. Farr, 47 N.J.L. 208 (Sup.Ct.1885); Ross v. Miller, 115 N.J.L. 61, 178 A. 771 (Sup.Ct.1935).

Defendants argue that while section 35 of the East Orange charter requires a majority of the whole number of the East Orange city council, or six thereof, to be present to constitute a valid meeting for the transaction of business, only the affirmative vote of the bare majority of such quorum is necessary for the purpose of filling a vacancy which exists on the council. Defendants contend that proper construction of section 35 of the charter limits the requirement that no action be taken except by the affirmative votes of at least a majority of the whole number to corporate acts of the municipality; that since the filling of a vacancy on the council is not a corporate act the common law rule, that a majority of a quorum may act, must be read into section 12 of the charter providing for the appointive power of a council to fill such vacancies.

Plaintiffs concede that section 12 of the charter does not in itself contain any direction from the Legislature as to the requisite vote required to exercise the appointive power of the council. They contend, however, that section 12 must be read with section 35, and that the acts taken by the council under section 12, in filling vacancies, constitute corporate action. The issue for decision is accordingly narrowed to the question of proper construction of the phrase 'corporate action' as used in section 35 of the charter.

No case has been found decided by the courts of this State which construe the phrase 'corporate action.' A review of the various corporate charters contained in the revised statutes discloses no other charter containing a like phrase. No judicial review, upon which there has been a reported decision, has ever been sought to construe sections 12 or 35 of the East Orange charter.

In arguing that defendant Padrone was improperly seated as a member of the East Orange council, plaintiffs rely heavily upon the case of Ross v. Miller, 115 N.J.L. 61, 178 A. 771, 772 (Sup.Ct.1935). Ross v. Miller involved the attempt to fill vacancies in the council governing the City of Clifton under the provisions of L.1923, c. 113 (R.S. 40:81--18 and 20, N.J.S.A.). A municipal council of seven members was established under the charter. The requisite number were duly elected. Subsequently there were two vacancies created by death, in the council membership. At a meeting held and attended by the five remaining members of the council, three nominations were made to fill the vacancy. One nominee received five votes, plaintiff three votes, and the other nominee two votes. The nominee receiving five votes was thereupon declared elected to fill one of the vacancies. Neither plaintiff nor the other nominee was accorded membership on the council. Under the charter covering the City of Clifton, power was given to the municipal council in such a case to appoint properly qualified citizens to fill vacancies in...