State v. Bd. of Health of City of Trenton

• Citation: 49 N.J.L. 849,8 A. 509
• Parties: STATE ex rel. CLARKE v. BOARD OF HEALTH OF CITY OF TRENTON.
• Decision Date: 21 February 1887
• Court: United States State Supreme Court (New Jersey)

8 A. 509

49 N.J.L. 849

STATE ex rel. CLARKE

v. BOARD OF HEALTH OF CITY OF TRENTON.

Supreme Court of New Jersey.

February 21, 1887.

(Syllabus by the Court.)

Andrew M. Clarke was allowed a rule to show cause why the board of health of the city of Trenton should not admit him as a member. The rule has been brought to hearing on affidavits, etc., from which the following facts appear: The board of health is organized under an ordinance passed July 11, 1882. The ordinance prescribes that it shall be composed of seven members, nominated by the mayor and approved by the common council, of whom some are to serve for three and some for four years. It provides that, in all cases, members are to serve until their successors are appointed and qualified. On July 19, 1882, William Cloke was appointed a member to serve for four years. On July 20, 1886, Cloke was renominated by the mayor, but was not confirmed. On August 6, 1886, the city clerk gave the following to John W. Brooke, president of the common council:

"OFFICE OF CITY CLERK, CITY HALL, TRENTON, N. J., August 6, 1886.

"Hon. John W. Brooke, President of Common Council—Dear Sir: His honor, Mayor Woolverton, having left the city for a short period, desires me to inform you of that fact, and to take charge of the business pertaining to the office during his absence.

"Respectfully yours, ECKFORD MOORE, City Clerk."

On the same day, Brooke laid before the common council, at a special meeting, which had been called on August 3d, the following:

"Mayor's Office, Trenton, N. J., August 6, 1886.

"To the Honorable the Common Council—Gentlemen: In the absence from the city of his honor, Mayor Woolverton, and at his request that I take charge of the business pertaining to the office during his absence, of which I have been this day duly advised by the city clerk, I hereby, in accordance with the provisions of the fifth section of 'An ordinance establishing and concerning a board of health,' approved July 12, 1882, nominate Andrew M. Clarke as a member of the board of health, to fill the vacancy caused by the expiration of the term of William Cloke.

"Respectfully, John W. Brooke,

"President of Council, acting as Mayor."

The nomination so made was confirmed, and Clarke qualified. On August 17th, the board of health met; Cloke being present, and acting as a member. Clarke then presented to the board the following:

"This certifies that Andrew M. Clarke was on the sixth day of August, 1886, elected by the common council a member of the board of health of the city of Trenton.

"Witness my hand this sixth day of August, 1886.

[L. S.] "ECKFORD MOORE, City Clerk."

—And asked the board to admit him as a member. He testifies that the president of the board told him that the certificate was no evidence, and he then asked if he could produce the minutes of the council, but the president refused to receive them. The board voted against his admission.

By section 34 of the charter of Trenton (Laws 1874, p. 331) it is provided "that 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 shall act as mayor, and possess all the rights and powers of the mayor, during the vacancy in office caused by the absence or disability of the mayor."

The city clerk and others present at an interview between him and the mayor on the morning of August 6th testified that the mayor said he intended to leave Trenton about noon for an absence of some days. The mayor denies having said so. The mayor testifies, and others corroborate him, that he was not in fact out of the city of Trenton, or disabled from any cause from performing the duties of his office, on the day and at the time the nomination was made.

W. Y. Johnson, for the rule.

J. Buchanan, contra.

MAGIE, J. The first question presented relates to the propriety of issuing a mandamus under the circumstances disclosed. Although the four years for which Cloke was appointed have expired, it is clear, in my judgment, that he remains a member of the board, de facto et de jure, until his successor has been appointed and qualified. If the act of February 28, 1881, (Laws 1881, p. 47,) which provides that certain city officers shall continue to hold their offices, although the time for which they were appointed has expired until their successors have been appointed and qualified, does not apply to such an office, yet the terms of the ordinance under which Clarke claims expressly provide for the same continuance in office, and there seems to be no ground for contending that, if the ordinance is within the power of the council, this mode of holding office may not be prescribed. There is therefore no vacancy in the office, (Stilsing v. Davis, 45 N. J. Law, 390,) but a contest between Clarke, who claims to have been duly appointed, and Cloke, who claims that Clarke has not been duly appointed, and therefore that he remains in office.

Under such circumstances, I find a great preponderance of authority against the issuing of this writ. Opinions have been expressed in this court to that effect, but in cases where the opinion was not necessary to the decision. Bradshaw v. Camden, 39 N. J. Law, 417; O'Bonnel v. Busman, Id. 677. The text-books on the subject approve this view. It is clear that to issue the writ is to try and to determine the title to an office without affording an opportunity to one of the claimants to be heard in defense of his right. But this court has enunciated a contrary doctrine, and has held that members of a public body holding over until their successors are elected and qualified are not officers de facto in such a sense that a mandamus should not be allowed. State v. Freeholders of Hudson Co., 35 N. J. Law, 269. We are" of course bound by that authority, and the writ may issue if a proper case has been made.

The claim on behalf of Clarke is that the mandamus asked for must issue because he has shown a nomination by the president of council, claiming to be acting mayor, and a confirmation by council. It is insisted that he thus shows a prima facie title which must be conclusive on...