McGeehan, Proctor and Lloyd. The opinion of the court was delivered by Lloyd, J.s.c. (temporarily assigned).
The issue is the validity of the appointment of petitioner-appellant as super-intendent of the schools of the Township of North Bergen for the term of five years.
On January 13, 1952 the office of superintendent of schools for the Township of North Bergen became vacant by reason of the death of the incumbent Madden. The defendant-respondent consisted of five members, who appointed a secretary. The board consisted of Stephen H. Magnus, president; Edith Beck, vice-president; John Halligan, George Eichler and Edward H. Marck. James J. Goodman was secretary.
On January 16, 1952 all the members of the board, with the exception of Eichler, went to luncheon. In addition to said members, Goodman and two school principals accompanied them. At said luncheon the four board members present, after some discussion, agreed that they should observe a 30-day period of mourning after which time the board would begin the task of selecting a new superintendent; and George Eichler, the absent member, was later informed of this agreement and acquiesced therein. Applicants for the office, other than petitioner-appellant, who asked board members about filing applications were told not to file an application until the 30-day period of mourning had expired.
About January 20, 1952 Marck and Halligan contacted Magnus and Eichler for the purpose of discussing the appointment of a superintendent, but they refused because of the mourning period.
Marck had been a member of the board about nine months; his term would expire on January 31, 1952, and a few days after January 16 it became known that he was not being reappointed by the appointing power, the mayor of the Township of North Bergen.
On January 23, 1952 one Harry Buesser, a North Bergen Township commissioner, asked Secretary Goodman "to have
a letter prepared calling a special meeting for next Monday night," but Goodman informed him the request could not be complied with because under the resolution adopted by the board of education the secretary could call a special meeting only if ordered by the president or if he received a request in writing from three members of the board.
On January 24, 1952 there is evidence that Buesser met Mrs. Beck and asked her whether she would sign the notice of such meeting. Upon her telling him she would not do so, he stated: "O.K., if you don't sign, your husband will be fired from his job in the morning."
On the afternoon of January 28, 1952 Marck went to the office of the defendant-respondent and examined the records and resolution concerning the requirements for calling a special meeting. As he was leaving Goodman entered the office, said "Hello," and Marck nodded. Up to this time no request was made of Goodman to call a special meeting. A little while thereafter Goodman, because of illness, went to Atlantic City, where he remained until about February 2, 1952.
On January 29, 1952 Halligan, Marck and Beck signed two notices which were served on the other members of the board, Magnus and Eichler, one by registered mail and the other personally. The same day they served a notice on Goodman by leaving it at his office as he was out of town, directing him to call a meeting of the board. Said notices called for a meeting of the board to be held on January 31, 1952 at 8:00 P.M., for the purpose of considering the appointment of a superintendent of schools and for such other business as might come before the meeting.
The meeting was held at said time, Marck, Halligan and Beck being present. These three passed a resolution, which had been prepared and signed previously, appointing petitioner-appellant superintendent of schools of the Township of ...