Salter v. Burk

The opinion of the court was delivered by Voorhees, J. The controversy in this case concerns the legality of a resolution appointing one Thompson to be city [155] clerk on and after December 1st, 1911. Walter, the prosecutor, had served under the charter of Trenton (Pampk. L. 1874, p. 331) for several years. His last election, by vote-of a majority of all the members of the council, was January 1st, 1910, and the term having been fixed by statute at three-years (Pampk. L. 1900, p. 115), his term would have expired; January 1st, 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: Thai there was no vacancy in the office at the time of Thompson’s election: that the prosecutor was protected by the Civil-. Service act, and interference with his tenure of office was unwarranted, no cause for his removal having been assigned or hearing afforded to him. The title of the Walsh act is, “An act relating to, regulating and providing for the government of cities, towns, boroughs and other municipalities within this state.” Pampk. L. 1911, p. 462. Its provisions very clearly indicate a new form of government in such municipalities as may adopt it, to take the place-of the then existing form, and as well in express terms depose those in office at the time of its adoption. The second section says that “upon the organizing of the commissioners, the city council or other governing body or bodies theretofore acting * * * shall be ipso facto abolished, and the terms of all couneilmen or aldermen, and all other officers whether elective or appointive, shall immediately cease and determine.” The fourth section gives to the commissioners “all administrative, judicial and legislative powers, and duties now had and possessed and exercised by the mayor and city council, and all other executive or legislative bodies in said city, and have complete control over the affairs of the city.” Moreover, the eighteenth section contains a repealer of all inconsistent legislation, and the eighth section vests an adopting city with “all powers necessary for its government not in conflict with the laws applicable to all cities of this state or the provisions of lho constitution.” More appropriate lan [156] guage to describe a complete obliteration of the former government and a comprehensive constitution of a new government in its stead could not have been chosen.’ The right of the legislature to abolish its agency created by it, in the form of a municipal corporation, whereby it may tire more readily administer local affairs, if not conceded, is not contested, and it is admitted that in the present ..case the term of the prosecutor as city clerk came to an end when the city began its government by commission. But the terms of the act disclose that it was not intended in anjr sense to be a charter or grant of municipal power, except in a most general way. The management of municipal ■affairs is entrusted to a board of commissioners, but it largely leaves the mechanism of the city’s government and the provisions of the charter untouched. It does not alter general laws or charter provisions relating to. the government of the city except when inconsistent with its provisions. Its effect is to impose upon tire board of commissioners the dutjr to fill existing offices, made vacant by the adoption of the act -and the organization of the board, under the laws and ■ordinances then in existence. Authority for this statement is sufficiently contained in the above noted sections of the net. That tire city clerk to be thereafter elected by the commissioners must be elected for a term of three years, must therefore be conceded, for neither the statute of 1900 above cited, nor the act of 1911 (p. 6-79), making the term three years, and until a successor shall be appointed and qualified, was legislation inconsistent with the Walsh act. Hence an unqualified election of a city clerk would have constituted the selected person such for the term then prescribed by law, namefy, three yeaxs. If there was a vacanc3r, the right to elect Thompson to the office for the legal term existed in the board of eommis-. sioners. It cannot be asserted that such occupation of the ■office by the prosecutor as may have constituted him a de facto officer, as to the public and third parties, could be offered to show that there was no vacancy. As against the municipality, there was in fact a vacanc}r unless the incum [157] bent was an officer de jure. Anderson v. Myers, 48 Vroom 186; Oliver v. Jersey City, 34 Id. 634; Loper v. Millville, 24 Id. 362; Heaviland v. Freeholders, 35 Id. 176. Unless the office was filled de jure by the omnibus resolution, or by the subsequent one of October 2d, a vacancy existed at the time of the passage of the resolution under review. Neither of these resolutions was a, legal appointment. Each attempts to fix a term less than that provided by law, which was beyond the power of ihe board. Nor could they fix an indefinite term. O’Rourke v. Newark, 37 Id. 109; affirmed, Id. 265, states: “'The fact that the common council attempted to fix a term for the positions to which the prosecutor was appointed different from that which the city charter fixes is of no consequence. Such a resolution is of no force as against the express provisions of the city charter.” The prosecutor argues that the resolutions appointing him to office were illegal, because it continued him in office during the pleasure of the commission an indefinite term; the other because it elected him to serve for a definite term less than the three year term prescribed by law. He then contends that while the appointment is in these particulars unwarranted, it is nevertheless sufficient to continue him in office for the full legal term, although contrary to the express Language of the resolutions and to the expressed intention of the appointing body. Our opinion is that if the appointment was invalid for the reasons urged by the prosecutor, it was also invalid for the legal term. Tt was not an appointment for three years which the, law prescribed, and therefore the attempt by such resolutions to fill the office must be deemed invalid, and hence a vacancy, in contemplation of law, existed in the office warranting the municipal action of October 13th, whereby the office of city clerk was filled. One complaining of the illegality of the election to office of another in his stead must first show that he himself has legal title to it. The Civil Service act has no application to this case. Tt was adopted by the city after the adoption by it of the Walsh [158] act, and. therefore the provisions of the latter act prevail •against the former. Nor could they apply to a mere de, facto officer. To construe the Civil Service act so as to keep in office ■one holding such office without right, would subvert the beneficent purposes of that legislation. It is manifest that its application must be limited to the protection of officers' ■de jure. The resolution under review will be affirmed, with costs.