On rule to show cause why a peremptory or alternative writ of mandamus should not issue.
For the relator, Charles S. Silberman.
For the respondents, John C. Barbour.
Before Justice Heher, at the Passaic Circuit.
HEHER, J. Relator seeks a peremptory or alternative writ of mandamus, commanding respondents to "declare" relator "duly, legally appointed and elected to the municipal council of the city of Clifton," and to administer to him the customary oath of office.
Passing the question of the propriety, in the circumstances here presented, of the remedy thus invoked, it is clear that relator's title to the office in question has not been established; and, that being so, he has not made out a case for relief in any form.
These are the essential facts: The city of Clifton exercises its governmental functions under the provisions of chapter 113 of the laws of 1923, termed the "Municipal Manager Form of Government act." Pamph. L. 1923, p. 217. It is in the class of municipalities for which a municipal council of seven members is provided therein. The requisite number were duly elected. On February 5th, 1935, there were two vacancies, created by death, in the council membership. At a meeting of the council held on that day, attended by the five remaining members, three nominations were made to fill the vacancies -- Messrs. Shershin, Sigler and the relator. Shershin received the votes of all five members of the council; and he was thereupon declared elected to fill one of the vacancies. Relator polled three votes, and Sigler two votes; but neither was accorded membership in the body, upon the theory, presumably, that the concurrence of a majority of the entire membership of the council prescribed by law was requisite to appointment. On the hypothesis that a majority of the councilmanic body as then constituted was empowered to fill a vacancy, relator, through counsel, at a meeting of the body held on February 27th, 1935, demanded that he be declared elected to membership, and sworn. This demand was refused; hence, this application for a mandamus to compel such action.
The decisive question, therefore, is whether a vacancy can be legally filled by a majority of the existing membership. This is a question of statutory construction; and it must be resolved against relator.
Section 713 of the act ordains that "vacancies in the
municipal council, excepting such as are created by recall, shall be filled temporarily by the municipal council by appointing a properly qualified citizen thereto, who shall serve until a successor can be elected at the next election at which members of the general assembly are elected." Pamph. L. 1923, p. 228. There is no requirement in this or any other section as to the number of members of the body whose concurrence is essential to fill a vacancy. Section 711 of the act (page 227) provides that " a majority of all the members of the municipal council shall constitute a quorum, and the affirmative vote of a majority of all the members shall be necessary to take any action or pass any measure, except as otherwise provided in this act."
The reason and spirit of a statute control in its interpretation. In the ascertainment of the legislative purpose, the old law upon the subject is to be considered. In a leading English case, it was declared that, in general, these four things were to be taken into consideration: "(1) What was the common law before the making of the act? (2) What was the mischief and defect for which the common law did not provide? (3) What remedy the parliament hath resolved and appointed to cure the disease of the commonwealth? And (4) the true reason of the remedy." Heydon's Case, 3 Coke 7a; 14 Eng. Rul. Cas. 816. It is, of course, to be presumed that the legislature is familiar with the common law. And there is a presumption, also, that a word or phrase is used in the same sense throughout the statute. Lewis' Sutherland Statutory Construction, § 399.
At common law, a majority of all the members of a municipal governing body constituted a quorum; and in the event of a vacancy a quorum consisted of a majority of the remaining members. Hutchinson v. Belmar, 61 N.J.L. 443; affirmed, 62 Id. 450; Tappan v. Long Branch, &c., Commission, 59 Id. 371; Mueller v. Egg Harbor City, 55 Id. 245; Cadmus v. Farr, 47 Id. 208. And it was likewise the rule at common law that a majority of a quorum was empowered to fill a vacancy, or take any ...