Salter v. Burk

• Citation: 83 A. 973,83 N.J.L. 152
• Parties: SALTER v. BURK et al.
• Decision Date: 10 July 1912
• Court: United States State Supreme Court (New Jersey)

83 A. 973

83 N.J.L. 152

SALTER

v. BURK et al.

Supreme Court of New Jersey.

July 10, 1912.

(Syllabus by the Court.)

Certiorari prosecuted by Harry B. Salter against William F. Burk and others, Commissioners of the City of Trenton, to review a resolution, whereby Frank Thompson was elected city clerk. Affirmed.

The prosecutor, claiming to be the clerk of the city of Trenton, prosecutes this writ to bring under review a resolution of the board of commissioners of Trenton, passed October 13, 1911, whereby Frank Thompson was elected city clerk, his election to take effect December 1, 1911.

The following facts appear by stipulation and affidavits taken: On June 20, 1911, the so-called Commission Government Act (P. L. 1911, p. 462), or, as it is sometimes known, the Walsh Act, was duly adopted by the voters of the city of Trenton. On August 15, 1911, at a municipal election held therein, a board of five commissioners, pursuant to said act, were duly elected and duly qualified and organized on August 22, 1911. After organization, they duly adopted the following preamble and resolution, spoken of as the "Omnibus Resolution": "Whereas, in and by the act of the Legislature of the state of New Jersey, entitled 'An act relating to, regulating and providing for, the government of cities, towns, boroughs and other municipalities within the state,' approved April 25th, 1911, it is provided that, 'upon the organization of the commissioners in any such city, elected under this act, the city council or other governing body or bodies theretofore acting as governing body or bodies in such city and having any other functions, shall be ipso facto abolished, and the terms of all councilmen or aldermen, and all other officers, whether elective or appointive, shall immediately cease and determine; providing, however, that nothing herein contained shall be construed to affect in any way the term of office of any policeman, fireman or other employée of any police or fire department, veteran of any war or other official employe now protected by any tenure of office act; and whereas, it is deemed inexpedient and inadvisable by hasty and injudicious action to fill by immediate appointments the several offices by the above recited act made vacant; and whereas, it is essential and advisable in the judgment of this body that some provision be made, of a temporary character, for the transaction and conduct of the business of the several city departments and offices: Therefore, be it resolved, that all and singular the officers, servants and employes now in the service or employ of the city in any office or department thereof, except the mayor of said city, the common council and the members of the board of police commissioners, fire commissioners and excise commissioners, respectively be, and they are hereby, continued in their several and respective offices and employments, at the same rate of compensation as is now respectively received by each, until the further order of this commission; and be it further resolved, that nothing herein contained shall be deemed or adjudged to be an appointment to any position or office, but that all and singular the officers, servants and employes of the city aforesaid who shall continue in the city employ under the provisions of this resolution, except those now protected in the tenure of their offices or positions by any law of this state, shall hold their several and respective offices and positions at the pleasure of this commission, and shall be deemed to have waived any personal privileges or benefit respecting the periods of their respective appointments under any law of this state."

The prosecutor, who was the city clerk at the time of the adoption of the Walsh Act, continued to act as such after the passage of the Omnibus Resolution.

On October 2, 1911, the commission passed the following resolution: "On October 2d, Mr. Lee moved that the commissioners proceed to the election of a city clerk, city treasurer and city comptroller to serve until December 1, 1911. Mr. Lee nominated Harry B. Salter for city clerk, and he was elected." On November 7, 1911, at the general election, the Civil Service Act (P. L. 1908, p. 235) was adopted by the voters of the city of Trenton. The writ was allowed before the last resolution went into effect.

Argued February term, 1912, before BERGEN, VOORHEES, and KALISCH, JJ.

McCarter & English, of Newark, for prosecutor.

Charles E. Bird, of Trenton, for defendants.

VOORHEES, J. (after stating the facts as above). The controversy in this case concerns the legality of a resolution appointing one Thompson to be city clerk on and after December 1, 1911. Salter, the prosecutor, had served under the charter of Trenton (P. L. 1874, p. 331) for several years. His last election, by vote of a majority of all the members of the council, was January 1, 1910, and, the term having been fixed by statute at three years (P. L. 1900, p. 415), his term would have expired January 1, 1913, but for the adoption of the Walsh Act.

The reasons assigned by the prosecutor for setting aside the resolution brought up may be concisely stated as follows: That there was no vacancy in the office at the time of...