Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
This action in lieu of prerogative writ was brought in the Superior Court, Law Division, by four members of the Board of Freeholders of Hudson County. They seek a judgment ousting the defendant Joseph T. Connors from the office of freeholder. Plaintiffs and defendant made counter-motions for summary judgment; defendant's motion was granted. Plaintiffs appeal.
The four plaintiffs were elected to the board of freeholders at the general election on November 6, 1956, taking office on January 2, 1957. Four other members of the present board were in office prior to October 1, 1956. Mr. Connors, who claims to be the ninth member (the board has a constituency of nine members), was appointed freeholder by resolution of the board on October 25, 1956, to fill a vacancy created on October 8, 1956 by the death of the freeholder William V. O'Driscoll. If Mr. O'Driscoll had lived, he would have been entitled to hold office until the annual stated meeting of the board in January 1958 and until his successor was elected and qualified. N.J.S.A. 40:20-2. Mr. Connors contends, and Judge McGeehan for the Law Division held, that he (Connors) may, by virtue of the resolution of the board, hold office until a successor to Mr. O'Driscoll can be elected and qualified, namely, until the annual stated meeting of the board in January 1958. Plaintiffs claim that Mr. Connors' right to hold office expired January 2, 1957.
The parties have stipulated that on May 28, 1912, Hudson County, by referendum, adopted the provisions of L. 1912, c. 158, now N.J.S.A. 40:20-2 to 40:20-19, inclusive. The question before us turns largely on N.J.S.A. 40:20-4 (as amended by L. 1945, c. 121):
"Vacancies in the board of chosen freeholders caused by death, resignation or inability to serve in office shall be filled by the remaining members of the board until the annual stated meeting of the board next after the vacancy occurs, and at the first general election held after the vacancy occurs a person shall be elected to fill the office for the unexpired term only."
Since the vacancy in the office, caused by Mr. O'Driscoll's death, occurred only 29 days before the general election on November 6, 1956, it could not, as the law stands, have been filled "at the first general election held after the vacancy occurs," pursuant to N.J.S.A. 40:20-4. See N.J.S.A. 19:27-11; cf. Kilmurray v. Gilfert , 10 N.J. 435 (1952).
However the second clause of N.J.S.A. 40:20-4 (commencing with the word "and") is modified by N.J.S.A. 19:3-29, which provides:
"A vacancy happening in a public office other than that of United States Senator, Member of Congress, State Senator, or member of the House of Assembly, shall be filled at the general election next succeeding the happening thereof, unless such vacancy shall happen within thirty-seven days next preceding such election, in which case it shall be filled at the second succeeding general election."
Cf. corresponding modifications in L. 1912, c. 158, § 4 (from which N.J.S.A. 40:20-4 was derived) that were effected by L. 1920, c. 349, p. 628; L. 1922, c. 242, p. 425; L. 1930, c. 187, p. 685 (cf. L. 1898, c. 139, p. 304). Indeed, one jurisdiction, as a matter of inference, has reached a result similar to that achieved in New Jersey by N.J.S.A. 19:3-29. State ex rel. Halbach v. Claussen , 216 Iowa 1079, 250 N.W. 195, 200 (Sup. Ct. 1933). The Iowa constitution provided that "all persons appointed to fill vacancies in office, shall hold until the next general election, and until their successors are elected and qualified." I.C.A. Const.
Art. II, § 6. In the cited case a vacancy occurred less than 30 days before a general election, which under the Iowa statutes, did not leave sufficient time to have the name of a successor placed on the ballot. The court held:
"The next general election means the next general election at which, in pursuance of law, a vacancy may legally be filled. Under all of the authorities called to our attention dealing with the subject, it is held that this does not necessarily mean the next ensuing general election, but the election at which the vacancy can be legally filled. State [ex rel. Ferguson] v. Superior Court , 140 Wash. 636, 250 P. 66; State [ex rel. Everding] v. Simon , 20 Or. 365, 26 P. 170; Sawyer v. Haydon , 1 ...