In 1947 the defendant Herman Blank was appointed a member of the Passaic Valley Sewerage Commission for a term of five years pursuant to the provisions of R.S. 58:14-3. He was reappointed in 1952 for a similar term.
At the time of his first appointment and until March 1956 Mr. Blank resided at 831 South Eleventh Street in the City of Newark. Since that time he and his family have lived at 23 Stonehill Road in the Village of South Orange, New Jersey. Although Mr. Blank lived within the Passaic Valley Sewerage District from the time of his first appointment in 1947 until March 1956, it is conceded that his present residence is outside the boundaries of that district. R.S. 58:14-1 and R.S. 58:14-1.1.
The Attorney-General of New Jersey, in an action in lieu of prerogative writ, seeks the removal of defendant from office, or alternatively, a declaration that the office is vacant. Such relief is sought on the ground that the defendant vacated and forfeited his office by his change of residence. Defendant denies that moving to South Orange has effected this result and maintains that he properly remains in office.
I now have before me cross-motions for summary judgment. Each party, alleging the absence of genuine issues of material fact, claims the right to judgment as a matter of law. Since the only material fact in this case is not disputed, i.e. , the present place of residence of the defendant, it is apparent that this case is a most appropriate one for summary disposition.
The single question of law involved is the proper construction of R.S. 58:14-3 which reads as follows:
"The board shall consist of five members who are residents of the district. Upon the expiration of the term of office of a commissioner, his successor shall be appointed by the Governor, by
and with the advice and consent of the Senate, for a term of five years. The Governor may remove any commissioner from office for cause.
Each commissioner shall hold his office until his successor has been appointed, and any vacancy in the membership of the commission because of death, resignation or removal, shall be filled for the unexpired term in the manner provided for on original appointment. In making any appointment hereunder, either for a full term or to fill a vacancy, regard shall be had to ability and fitness, and also locality, so that each section of the district may be represented as far as practicable."
The Attorney-General contends that under this statute, continued residence within the district is a prerequisite for eligibility to remain as a member of the commission. Defendant contends that residence within the district is a condition of appointment, but not a condition of tenure. The defendant further contends that even should continued residence be deemed a condition of tenure, the plain legislative intent of the second paragraph of R.S. 58:14-3 directs that a member shall nonetheless hold his office until his successor has been appointed and has assumed the office.
A short history of the statute involved is helpful to a solution of this controversy. The Passaic Valley Sewerage District was created by the Legislature in 1902. L. 1902, c. 48, p. 190. The office of commissioner was provided for in that same legislative session. L. 1902, c. 49, p. 195. The pertinent section of that enactment is as follows:
"1. Upon the creation and incorporation by the legislature of any sewerage and drainage district for the purpose mentioned in the title of this act, it shall be the duty of the governor of this state forthwith to appoint therein and therefor five able and discreet men, residents within such district (having regard in making such appointments to locality, so that each section of the district may be represented, as far as practicable), who, when so appointed, commissioned and sworn, shall constitute a board of commissioners, * * * any vacancy occurring in the said board by death, resignation or otherwise, shall be filled in the same manner as the original appointment for the balance of the term * * * the governor of this state shall have power to remove such commissioners from office for cause, during their term of office, and upon removal to fill the vacancy thus occasioned for the unexpired term in the manner herein provided for filling vacancies."
During the next year, a special session of the Legislature was convened, and at that time amended the existing law relative to this commission. L. 1903, Sp. Sess., c. 1, p. 778:
"1. The commissioners heretofore appointed by the governor of this state in and for the Passaic valley sewerage district shall continue in their respective offices for the terms for which they were severally appointed, and said terms are hereby extended to the first Tuesday of May succeeding the date when their terms under said appointments would respectively expire; and hereafter one commissioner shall be appointed by the governor by and with the advice and consent of the senate in each year for a term of five years, beginning on the first Tuesday of May next following the date of his appointment; any vacancy occurring in the office of commissioner by death, resignation or otherwise, shall be filled by the governor, but for the unexpired term only; * * * the governor of this state shall have power to remove any commissioner from office for cause during his term of office, and upon removal to fill the vacancy thus occasioned for the unexpired term; in making appointments, either for full terms or to fill vacancies, regard shall be had by the governor both to ability and fitness, and also to locality, so that each section of the district may be represented as far as practicable * * *."
The statute was again amended in 1927, but as to this discussion the amendments are not material. The portion of language in the 1927 amendment with which we are concerned is the same as the language ...