On appeal from the Supreme Court, whose opinion is reported in 116 N.J.L. 320.
For the appellants George E. Brunner, Frank J. Hartmann, Jr., Mary Walsh Kobus, Leo B. Rea, Firmin Michel, Grover C. Richman, Mitchell H. Cohen, Edward V. Martino, John J. Cream, Clay W. Reesman and William D. Sayrs, Walter S. Anderson, Jr. (Carl Kisselman, of counsel).
For the appellant, City of Camden, Carl Kisselman.
For the respondents, S. Rusling Leap.
The opinion of the court was delivered by
PERSKIE, J. The determinative question presented in all these cases, which were consolidated into one cause, is whether a de facto body can create a de jure officer.
The facts which give rise to this question are not in serious dispute and are substantially as follows: Camden, a second class city, operating under commission form of government, held its quadrennial election of five commissioners on May 14th, 1935. The returns of the election received that night and early the next morning indicated the election of von Nieda and Bennett, of one faction, and Brunner and Kobus, of the other faction, as commissioners. As to them there is no dispute. The tabulated votes indicated, and it was so announced, that there was a tie vote between Leonard and Hartmann, each of opposing factions for the fifth commissioner. The city clerk after canvassing the votes reported that Leonard was elected over Hartmann by a majority of three votes, and issued his certificate of election certifying that Bennett, von Nieda, Brunner, Kobus and Leonard had been elected city commissioners. Action was promptly taken by Hartmann for a recount of the votes cast, disputing Leonard's right to the office. While this dispute was pending Leonard was, on May 21st, 1935, over the protests of Brunner and Kobus, sworn in as a city commissioner. On this day the commissioners, with Leonard as a member, proceeded with the organization meeting. A resolution was introduced designating von Nieda as mayor. Before vote was taken thereon Kobus and Brunner registered protest against the making of permanent designations or appointments giving as their reason that such action should await the outcome of the dispute between Leonard and Hartmann. Despite these objections, the commissioners, by a vote of three to two, Leonard voting with the majority, designated von Nieda as mayor and six of the respondents herein to various offices (city counsel, first assistant city counsel, second assistant city counsel, police court judge, city prosecutor, overseer of the poor and deputy city clerk). On May 28th, 1935, by a like vote the said commissioners appointed the respondents Braun and Borz as city clerk and deputy city clerk.
Following the initial meeting of the commissioners the recount of the disputed election between Hartmann and Leonard determined that the former received a majority of seven votes over the latter. Accordingly Leonard's certificate
was revoked and Hartmann received a certificate of his election on or about August 1st, 1935. On August 1st, 1935, Hartmann was sworn in as a commissioner, and a reorganization of the commission ensued. By a majority vote (three to two) of the commissioners Brunner was designated as mayor. Further resolutions were adopted having for their purpose the re-allocation of various functions and bureaus in the city government among the several departments. Protest was made by the minority faction to the action.
On September 16th, 1935, the majority commissioners, Brunner, Kobus and Hartmann, passed resolutions over the protests of von Nieda and Bennett dismissing the respondents herein from the offices to which they were appointed on May 21st, 1935, and appointing the appellants herein in their stead. Respondents sued out writs of certiorari to review the action of the commissioners aforesaid. The Supreme Court ordered the resolutions set aside. Hence this appeal.
The opinion of the court below carefully points out the basic pronouncements of our courts, on the subject, in the pertinent cases of Erwin v. Jersey City, 59 N.J.L. 282; 35 A. 948; affirmed, 60 N.J.L. 141; 37 A. 732, and Brinkerhoff v. Jersey City, 64 N.J.L. 225; 46 A. 170. Although each case "directly involved merely the right to salary," nevertheless, the pronouncements therein, on the issue before us, are not in harmony; they are, in fact, directly opposite. In the former case Chief Justice Beasley, for the Supreme Court, squarely held that a de facto board cannot create a de jure officer. This court, on appeal from a nonsuit resulting from a second trial of that case, held (expressly passing the question here presented) that plaintiff who became a public officer de facto, without dishonesty or fraud on his part, and who actually rendered the services required of him as such public officer was entitled to recover the ...