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Kohler v. Cobb

Decided: January 25, 1960.

ALBERT W. KOHLER, DAVID L. HILLMAN, AND ARTHUR J. CHANDLER, PLAINTIFFS-APPELLANTS,
v.
CHESTER L. COBB, JR., MAXWELL MOORE, FRANK GIAMPA, W. RUSSELL EPLER, AND THE BOROUGH OF AVALON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS



For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor and Schettino. For reversal -- None. The opinion of the court was delivered by Schettino, J. Burling, J., concurring in result. Burling, J. (concurring).

Schettino

Plaintiffs appealed from a Superior Court, Law Division, judgment dismissing plaintiffs' action in lieu of prerogative writs which sought a declaration that plaintiffs were members of the Avalon Sewerage Authority. Prior to argument in the Appellate Division, we certified the cause on our own motion.

Pursuant to R.R. 1:6-2 the appeal record contains an agreed statement in lieu of a record. The Avalon Sewerage Authority is a body corporate and politic created under the provisions of N.J.S.A. 40:14 A -1 et seq. by ordinance passed on September 11, 1954 by the Borough of Avalon, a municipal corporation governed by a board of commissioners under the provisions of the Walsh Act, R.S. 40:70-1 et seq.

In January 1955 by resolution of the Board of Commissioners of Avalon plaintiff Chandler was appointed a member

of the Authority for a term of four years commencing February 1, 1955. On January 15, 1959 he was reappointed for a term of five years commencing February 1, 1959. On July 9, 1957 plaintiff Kohler was appointed to the Authority for a term expiring February 1, 1962. On April 24, 1959 plaintiff Hillman was appointed to the Authority to fill an unexpired term of one year. Certified copies of the resolutions appointing plaintiffs were filed with the Secretary of State. None of the plaintiffs has taken, subscribed to or filed with the Clerk of the Borough of Avalon an oath of office or any other oath. All the plaintiffs served as members of the Authority until the filing of this action. At oral argument we were informed that plaintiff Kohler had resigned and was no longer interested in the outcome of the appeal.

At a meeting held on July 22, 1959 defendant municipality adopted certain resolutions which declared the positions of plaintiffs as members of the Avalon Sewerage Authority vacant because of their failure to take an oath in accordance with Chapter 140 of the 1884 Laws of the State of New Jersey (R.S. 40:46-19). By separate resolutions, defendants Moore, Cobb and Giampa were designated members of the Avalon Sewerage Authority to fill the positions to which plaintiffs had been appointed.

Plaintiffs on the 24th day of July 1959 filed a complaint in lieu of prerogative writs to establish their title as members of the Authority and to declare the resolutions passed on July 22, 1959 null and void. At that time they obtained an order to show cause with temporary restraints expiring August 4, 1959. On the return day, plaintiffs and defendants, through their respective attorneys, agreed to submit the cause on the pleadings and affidavits as if cross motions for summary judgment were made.

The trial court found that plaintiffs "failed to take and subscribe the oaths required by Chapter 1 of the title Oaths and Affidavits (41:1-1 et seq.); and * * * that such oaths were not filed with the Clerk of the Borough of Avalon as required by N.J.S.A. 40:46-19; * * *" and on

August 7, 1959 entered judgment dismissing the complaint with prejudice and dissolving the restraints.

At argument, counsel were requested to submit their views on whether the oath provisions were directory or mandatory. Subsequent to argument, memoranda were submitted by them.

The basic question involves the applicability of R.S. 40:46-19 (requiring the taking of an oath within a certain time) to members of a sewerage authority created by a municipality pursuant to N.J.S.A. ...


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