State v. Mayor

• Decision Date: 20 November 1899
• Citation: 63 N.J.L. 634,44 A. 709
• Parties: STATE (OLIVER, Prosecutor) v. MAYOR, ETC., OF JERSEY CITY et al.
• Court: New Jersey Supreme Court

44 A. 709

63 N.J.L. 634

STATE (OLIVER, Prosecutor)

v. MAYOR, ETC., OF JERSEY CITY et al.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1899.

(Syllabus by the Court.)

Error to supreme court.

Certiorari by the state, on the prosecution of David W. Oliver, against the mayor and aldermen of Jersey City and the Greenville & Hudson Railway Company, to review an ordinance of the board of street and water commissioners of Jersey City. Ordinance set aside (42 Atl. 782), and defendants bring error. Reversed.

Charles L. Corbin and William D. Edwards, for plaintiffs in error.

Charles D. Thompson and R. V. Lindabury, for defendant in error.

NIXON, J. On September 19, 1898, the board of street and water commissioners of Jersey City passed "An ordinance granting to the Greenville and Hudson Railway Company permission to cross Communipaw avenue with its tracks at grade, and regulating such crossing." The ordinance was vetoed by the mayor, but was passed again, notwithstanding the objections of the mayor, on the 3d of October, 1898. The defendant in error, a resident and taxpayer of Jersey City, was allowed a writ of certiorari, and a judgment of the supreme court was afterwards obtained setting aside the ordinance, and this writ of error brings that judgment before us for review.

While numerous reasons are assigned in the record, they all center around two propositions: First, whether the defendant in error has such an interest in the subject-matter of the writ as to give him a legal standing to prosecute it. The court below adjudged that he had, and we concur in the conclusion reached by that court, and find no occasion to add anything to the reasoning and authority by which it is supported. The second proposition relates to the validity of the ordinance itself. It is contended that the board of street and water commissioners has no power to authorize grade crossings. The court below sustained the right of the board, and in that conclusion, also, we agree. Such authority is given by 1 Gen. St. pp. 471, 472, §§ 50, 51.

But the ordinance is assailed principally upon the ground that it was not legally adopted. The board of street and water commissioners is the governing body of Jersey City, and it enacts all the local laws of that city respecting streets and water. It consists of five members, and the ordinances passed are subject to the mayor's approval, and, if vetoed by him, may be again passed, notwithstanding his objections, by four votes of the board. 1 Gen. St. p. 466. The ordinance in question was adopted at a regular meeting held September 19, 1898, there being four votes for and one against it. It was vetoed by the mayor on September 28th, and finally passed, over his veto, on the 3d of October, 1898, receiving the same number of votes. But the contention is that one of them was not such as could give efficacy to the ordinance. It was cast by Robert G. Smith, who had been mustered into the United States service as colonel of the 4th regiment of New Jersey volunteers, on July 18, 1898. The statute creating the board of street and water commissioners provides (1 Gen. St. p. 465) that "no such commissioner shall accept or hold any other place of public trust or emolument within the elective franchise, nor any appointment to public office, unless he shall first resign his said office, and if he shall accept such other office without having resigned his office of such commissioner, upon his acceptance of such place of appointment, his office shall thereupon become vacant." While there has not been furnished the best proof that Smith actually accepted the office of colonel, yet, in the absence of any rebuttal, we shall hold, as did the court below, that it is sufficient, and that he did accept such office. It is also insisted by the plaintiffs in error that Smith should be made a party in this proceeding; but we think that where an action is instituted, the object of which is only to determine the validity of the act or thing done by an officer, and not involving his personal integrity or want of good faith, the officer himself is not a necessary party. No allegation or proof of bad faith on the part of any one appears in the record.

The question at issue is thus narrowed down to the efficacy of Smith's vote in the adoption of the ordinance. Without his vote, it could not have been passed over the veto, neither could it without every other vote it received, and it is not strictly accurate to say that his vote had any more potency than any other. After his appointment, Smith continued to discharge the duties of his office as commissioner, and was present and voted when the ordinance was adopted, as the official minutes show. It would therefore be a pure solecism to call the office vacant at that time, except in the strictly legal sense of having no occupant with a de jure title. The acts done by Smith in respect to the adoption of the ordinance were neither more nor less than he would have done had the 4th regiment never been organized. It is therefore manifest that the words of the statute (1 Gen. St. p. 465) already quoted, declaring that when a commissioner accepts another office his former office shall become "vacant," cannot mean, in a situation like this, that it is corporeally vacant; for the person lawfully elected to fill it remained in possession discharging its duties. Mere words in a statute cannot alone make an office unoccupied which in fact is occupied. The legal meaning of the words, in such circumstances, is that the office has no occupant who holds by a good title in law, and that the appointing power may at once be exercised to fill it, or, if it is an elective office, the people may elect, and no adjudication is required to declare the vacancy, although the newly appointed or elected officer may find it necessary afterwards to resort to quo warranto proceedings to obtain actual possession of the office. Under the old rule of common law, upon accepting another and incompatible office, the first became vacant, and, if the occupant refused to abandon it, a writ of quo warranto to determine the question of incompatibility was the remedy; and where the common law has been superseded by statutes declaring a vacancy under like circumstances, and the occupant remains, a similar course must be pursued to obtain possession, or such other steps as the facts may warrant. There are familiar precedents in our own state which illustrate the rules here stated. In Clark v. Ennis, 45 N. J. Law, 69, the court said: "It is clear, both upon reason and authority, that a statute declaring an office vacant, for some act or omission of the incumbent after he enters upon his duties, does not execute itself." Also Clawson v. Thompson, 20 N. J. Law, 689. Also State v. Parkhurst, 9 N. J. Law, 427, with a difference only in the attitude of the parties. The governor having appointed Parkhurst in Ogden's absence, the new officer took possession, and Ogden became the prosecutor to regain possession. Had Ogden remained, the title of the case would have been State v. Ogden, with the same result. The same practice prevails in other states, and the rule is clearly stated in State v. Jones, 19 Ind. 356. where it is said: "Where it appears, prima facie, that acts or events have occurred subjecting an office to a judicial declaration of being vacant, the authority authorized to fill such vacancy, supposing the office to be vacant, may proceed before procuring a judicial declaration of the vacancy, and appoint or elect, according to the forms of law, a person to fill such office; but if, when such person attempts to take possession of the office, he is resisted by the previous incumbent, he will be compelled to try the right, and oust the incumbent, or fail to oust him, in some mode prescribed by law."

Smith, then, being in the office under color of a legal title ab origine, and no other person claiming a right to it, was he a commissioner de facto? Lord Ellenborough, in 1805, in Rex v. Bedford Level, 6 East, 356, said: "An officer de facto is one who has a reputation of being an officer; who assumes to be, and yet is not, a good officer in point of law." This definition has never been questioned, and all those given by the text writers since are little more than variations of this one. Tested by this...