Robinson v. Kreischer

• Decision Date: 27 September 1967
• Docket Number: No. C--2424,C--2424
• Citation: 234 A.2d 496,97 N.J.Super. 104
• Parties: Phillip B. ROBINSON, Mayor of Ventnor City, New Jersey, Plaintiff, v. Rodney KREISCHER, as President of the City Council of the City of Ventnor City, a Municipal Corporation of the State of New Jersey, and Raymond Stark, Municipal Magistrate of Ventnor City, New Jersey, Defendants.
• Court: New Jersey Superior Court

Page 104

97 N.J.Super. 104

234 A.2d 496

Phillip B. ROBINSON, Mayor of Ventnor City, New Jersey, Plaintiff, v. Rodney KREISCHER, as President of the City Council of the City of Ventnor City, a Municipal Corporation of the State of New Jersey, and Raymond Stark, Municipal Magistrate of Ventnor City, New Jersey, Defendants.

No. C--2424.

Superior Court of New Jersey Chancery Division.

Sept. 27, 1967.

Alexander Blatt, Atlantic City, for plaintiff (Blatt, Blatt & Consalvo, Atlantic City, attorneys).

Frank J. Ferry, Atlantic City, for defendant, Rodney Kreischer.

Chaim H. Sandler, Atlantic City, for defendant, Raymond Stark.

HORN, J.S.C.

This matter is before the court on plaintiff's motion for summary judgment.

Plaintiff is the mayor of Ventnor City and filed this action to secure a determination whether the appointment of defendant Raymond Stark as municipal court magistrate of that municipality by the acting mayor is valid and binding on him as the subsequently duly elected mayor. The other defendant is Rodney Kreischer, president of the city council of Ventnor City. Both defendants assert, by their answers, that the appointment of Stark was valid and is binding on plaintiff for the full three-year statutory term.

The then current term of Warren Titus, mayor of Ventnor City, expired on December 31, 1966. A general election was held on November 8, 1966 for the office of mayor. Titus and plaintiff were candidates. Shortly after the election was held, litigation was instituted to determine whether certain absentee ballots should be counted. It is not important in my view whether this constituted a contest of the election.

No certification as to the election having been made by January 1, 1967, the commencement of the mayor's term, Kreischer was elected by city council as president on January 2, 1967 and became acting mayor pursuant to the City Referendum Charter Act of 1897, Acts Saved from Repeal, R.S. 40:108--1 et seq., N.J.S.A. (charter). As such, on the same date he made a number of appointments of city employees. He reappointed Stark, a layman, (N.J.S. 2A:8--7, N.J.S.A.), who had been judge of the municipal court of Ventnor City for many years and whose last term had expired December 31, 1966. City council, consisting of seven members, confirmed the appointment immediately thereafter.

On January 19, 1967 Titus, having been certified as the duly elected mayor, took the oath of office and commenced to serve as such. He served until February 21, 1967, at which time he submitted his resignation. Judgment was entered on or about March 8, 1967 declaring his election invalid. A special election was thereafter held in April 1967, following which Robinson was certified as the duly elected mayor. He immediately took office and shortly thereafter instituted this action.

Although some doubt may be expressed as to whether a justiciable controversy is presented in this proceeding since plaintiff has not attempted to appoint a successor to the office involved, and it well may be that any appointment he might make may not be confirmed by the council as required by the charter provisions, nevertheless I feel that a determination should be made. N.J.S. 2A:16--53, N.J.S.A. states that a person whose rights, status or other legal relations are affected by a statute may have determined any question of construction or validity arising from the statute, and obtain a declaration of rights, status or other legal relations thereunder. Neither defendant has objected to such a determination.

R.S. 40:108--1(26) of the charter act provides as follows:

'Whenever there shall be a vacancy in the office of mayor, or whenever the mayor shall be prevented by absence from the city, sickness or other cause from attending to the duties of his office, the president of the common council, or if he is absent or disabled, the president to be elected pro tempore shall act as mayor and possess all the rights and powers of mayor during the vacancy in office caused by the absence or disability of the mayor.'

Plaintiff advances the argument that this statute governs the situation and that by virtue thereof the powers of appointment of the acting mayor cannot extend beyond the time of the vacancy in the office of mayor.

He also suggests that R.S. 40:171--20, N.J.S.A., adopted in 1912, is not applicable. This reads:

'In the event of the death, resignation, disqualification, or other disability, of the mayor of any city, the president of the board of alderman 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.'

I need not make any determination as to whether this latter statute, R.S. 40:171--20, N.J.S.A., superseded the charter provisions because I do not believe it makes any difference in this case. See, however, Heller v. Ticknor, 86 N.J.Super. 501 (App.Div.1965) footnote at p. 503, 206 A.2d 467, which holds that a charter provision verbatim with the above quoted one was superseded by R.S. 40:171--20, N.J.S.A.

Plaintiff avers that by enacting the above charter provision the Legislature intended that the powers of the acting mayor were restricted to making appointments for terms which would end when the duly elected mayor qualified as such. The plain language does not support that view. Nor do I subscribe to the thesis advanced by plaintiff that the acting mayor is a De facto officer whose appointment could not create a De jure officer. It is, of course, well settled in this State that a De facto body cannot create a De jure officer, Von Nieda v. Bennett, 117 N.J.L. 231, 187 A. 629 (E. & A. 1936), but the premise that an acting mayor is a De facto mayor appears to be without support. Harrison v. Borough of Madison, 81 N.J.L. 21, 78 A. 665 (Sup.Ct.1911), affirmed 82 N.J.L. 527, 81 A. 755 (E. & A. 1911).

The charter provision, by its plain terms, clothed the acting mayor with all the 'rights and powers' of mayor during the vacancy in office. R.S. 40:171--20, N.J.S.A. conferred upon him 'all the powers and privileges' of mayor. In neither of these statutes is there the slightest indication that the 'rights and powers' or 'powers and privileges' were delimited with respect to appointments to such time as the vacancy in the office of mayor ceased. The reasonable interpretation from this plain language is that when the vacancy ceased, the acting mayor's powers as such likewise terminated; not that the powers of the appointees or the term of office of the appointees ended. Swede v. City of Clifton, 39 N.J.Super. 366, 121 A.2d 43 (App.Div.1956), affirmed 22 N.J. 303, 125 A.2d 865 (1956).

Plaintiff also relies on N.J.S.A. 40:46--16.5. That section is a part of an act adopted in 1964 as a supplement to the Home Rule Act of 1917. The sections of this supplement provide for a situation where vacancies exist in a majority of the membership of the governing body of any municipality, or in the entire membership of the governing body, or in the entire membership thereof as well as the office of mayor, resulting from a judicial determination declaring invalid the election of persons who would otherwise have filled such offices. N.J.S.A. 40:46--16.1 to 16.4 make provision for interim appointments by the Superior Court assignment judge for the county and special elections to fill the offices, and then follows N.J.S.A. 40:46--16.5 which states:

'In the event that any such vacancies occur by reason of a judicial determination invalidating the election of all the members of the governing body, or a majority of such members, including the mayor of the municipality, all appointments to office, position, or employment in the municipality required to be made by the mayor or by a majority vote of the governing body, and which have been so made, shall terminate and shall be vacated and all appointments to office, position, or employment thereafter made by the interim or part interim governing body shall be vacated at the time the newly elected members to the governing body take office.'

Consequently this statute was never intended to cover the factual situation that is present in this case. Nor may it be accepted as some indication of a general public policy that appointments made by an acting mayor or body shall be only for the interim, because it is so restrictive in scope. This exiguity exhibits the lack of such policy.

This statute as well as R.S. 40:46--15, N.J.S.A., a part of Article IV of the Home Rule Act, point up the fact it was no mere accident that the Legislature omitted a similar provision in the charter act or R.S. 40:171--20, N.J.S.A., R.S. 40:46--15, N.J.S.A. states:

'All vacancies in office in any municipality arising from or created by any other cause than expiration of term of office shall be filled for the unexpired term only.'

Plaintiff further contends that this court should declare that the tenure of Stark's position was concluded with the taking of office of plaintiff, on the thesis that the acting mayor and common council deliberately made the appointment in order to frustrate plaintiff's right as the incoming mayor to make his own appointments, and that this action was contrary to public policy. For this argument plaintiff cites Grogan v. DeSapio, 11 N.J. 308, 94 A.2d 316 (1953); State v. Hand, 71 N.J.L. 137, 58 A. 641 (Sup.Ct.1904); Haber v. Goldberg 92 N.J.L. 367, 105 A. 874 (E. & A. 1918), and Higgins v. Denver, 85 N.J.Super. 277, 204 A.2d 597 (App.Div.1964).

None of these cases is applicable. There is no averment here that defendant Kreischer and the city council did anything more than make and confirm the appointment. There is no claim that they procured a premature...