On appeal from the Supreme Court, whose opinion is reported in 131 N.J.L. 491. See, also, 130 N.J.L. 3; Ibid. 490.
For the appellant, Maurice C. Brigadier.
For the respondent, Walter D. Van Riper, Attorney-General, and Joseph Lanigan, Assistant Deputy Attorney-General.
The opinion of the court was delivered by
HEHER, J. The Hudson County Board of Taxation found appellant guilty of eleven specifications of neglect of duty and misconduct as secretary of the board, and removed him from office under R.S. 54:3-10.
The Supreme Court on certiorari concluded, inter alia, that the charges were sufficiently specific, and that the board's statutory removal authority "was lawfully exercised."
Appellant was suspended from the office in question pending the presentment of the charges of misbehavior. The resolution of suspension was adopted by the respondent board on August 5th, 1942; the accusations were reduced to writing and served upon appellant, with notice of a hearing on the ensuing September 26th; and the judgment of ouster was rendered on the following December 10th, after a hearing pursuant to the notice. As to the suspension, the Supreme Court expressed the opinion that the board had thereby exceeded its authority, but that there was no resultant injury to appellant, since he had abandoned the office and therefore
"the subsequent action of the board in suspending and dismissing him became entirely unnecessary."
There is an utter lack of evidence to sustain the conclusion of abandonment. It rests solely upon the finding that appellant failed to recognize the authority of the board appointed by Governor Edison until the old board was enjoined in mandamus proceedings to turn over to the newly appointed body all official books, records, documents, insignia and appliances. Vide In re Hudson County Board of Taxation, 128 N.J.L. 574. But that course of conduct did not evince an intention to abandon the office; quite the contrary. The new board was appointed on July 23d, 1942. The old board continued to function until the issuance of the writ of mandamus; and appellant, confronted with the conflicting claims of title, apparently withheld recognition of the new board, but continued to perform his secretarial functions under the law. His failure to acknowledge the authority of the new board did not continue after the writ of mandamus issued. The first act of the new board thereafter was to suspend appellant from office, although he was present, ready to perform his official duties. Mr. Justice Bodine's opinion in the mandamus proceedings was filed on August 4th, 1942; and, as noted, the resolution of suspension was adopted on the following day, immediately after the new board was given possession of the official quarters and records. And the specifications of misconduct are at variance with the hypothesis of abandonment of the office. They are in considerable part based upon appellant's adherence to the old board as against the new until the writ of mandamus was awarded.
The acts relied upon to show abandonment and nonuser of a public office are to be assayed in the light of the principle that such an office is a public trust which imposes upon the incumbent the performance of certain duties for the common good. It is requisite that the abandonment be intentional, although the intention may be inferred from the officer's conduct and overt acts. The relinquishment must be total and absolute. Temporary nonuser or neglect of duty is not ordinarily sufficient to sustain the inference of abandonment. People v. Bradford, 267 Ill. 486; 108 N.E. Rep. 732; State v.
Harmon, 115 Me. 268; 98 A. 804. Such is the general rule. 46 C.J. 980, et seq.; ...