Matthews, J.c.c. (specially assigned).
This is a proceeding in lieu of prerogative writs, in which plaintiffs, as citizens and taxpayers of the City of East Orange, challenge the action taken by a bare majority of the remaining members of the city council of that city in seating the defendant Padrone as a member of such council.
At the outset, it is observed that plaintiffs are proper parties to the action herein instituted in that they do not seek to attack the existence of the office in question, but rather attack only the right of the defendant Padrone to hold such office. Goff v. Hunt , 6 N.J. 600 (1951).
The facts leading to the controversy presently before the court are not in dispute, and have been stipulated by counsel to embrace essentially the following: On January 2, 1961, the first of January falling on a Sunday, the city council of the City of East Orange, as required by law, convened and its duly elected members organized and thereupon transacted business. On January 3, 1961, Edward E. Ruhnke, Sr., who had been elected to the office of councilman from the first ward of the City of East Orange, at the general election held November 8, 1960, resigned his office as councilman. Such resignation was accepted by the city council. Mr. Ruhnke's term as councilman commenced January 1, 1961, to terminate December 31, 1962.
The City of East Orange is a municipal corporation and functions under the provisions of R.S. 40:103-5 (Acts Saved From Repeal), this charter being a compilation of a series of general laws: L. 1908, c. 250; L. 1910, c. 249;
L. 1911, c. 87; L. 1912, c. 165, 192, 249; L. 1914, c. 135; L. 915, c. 123, 153, 205; and L. 1960, c. 126.
For the purposes of local government, the city is divided into five wards, from each of which two councilmen are elected, forming a city council composed of a total number of ten councilmen.
Following the resignation of Mr. Ruhnke, the city council met in a properly convened meeting on January 9, 1961; there were present at this meeting the nine remaining members of the city council. During the course of the meeting one Norman E. Scull was nominated to fill the vacancy caused by Mr. Ruhnke's resignation. Mr. Scull's appointment was defeated by a vote of five councilmen to four. Following the rejection of Mr. Scull, the name of the defendant Padrone was placed in nomination, and upon consideration thereof a vote of five councilmen for the seating of Mr. Padrone and four against was recorded. The chairman of the council, defendant MacArt, thereupon declared the defendant Padrone to be appointed to the city council to fill the vacancy caused by the resignation of Mr. Ruhnke. An appeal from the chairman's ruling was lost by a four to four vote, in the taking of which the defendant MacArt abstained. Upon the motion appealing the ruling having been defeated, defendant Padrone was permitted to take the oath of office and assume a seat on the city council as a representative of the first ward.
The plaintiffs do not claim that defendant Padrone is not a citizen and taxpayer of the City of East Orange, or that he is not a resident of the first ward thereof. Horwitz v. Reichenstein , 15 N.J. 6 (1954); Krulish v. Evans , 16 N.J. 200 (1954).
Plaintiffs' attack on the right of defendant Padrone to hold the office of city councilman from the first ward is based upon their construction of two sections of the city charter. Insofar as is pertinent here, the essential provisions of these sections, R.S. 40:103-5(12) and R.S. 40:103-5(35), are as follows:
"12. In case a vacancy shall occur, for any reason, in any elective office the city council shall have power to fill such vacancy by the appointment of a suitable person to hold such office for the unexpired term.
In case a vacancy shall occur, for any reason, in any appointive office the same shall be filled in the same manner as the original appointment to such office was made, but only for the unexpired term. * * *"
"35. A majority of the whole number, as herein provided, of the members of the city council shall constitute a quorum for the transaction of business; and no corporate action shall be taken, except by the affirmative votes of at least a majority of the whole number, as herein provided, of the members of the city council and no ordinance shall be passed on or adopted, except at a regular meeting of the city council. * * *"
Succinctly, plaintiffs contend that proper construction of section 35, which provides that a majority of the whole number of the members of the city council shall constitute a quorum for the transaction of business, and that such majority is required for the taking of corporate action, controls the appointive power granted to the city council under section 12. Under plaintiffs' contention, an appointment to fill a vacancy on the city council would require the affirmative vote of at least six of the members of the city council, since the whole number of the council is ten. Actually, there is no dispute between plaintiffs and defendants as to what constitutes the whole number of the city council. Defendants have conceded in their brief and oral argument that proper construction of the clause, "A majority of the whole number, as herein provided, of the members of the city council shall constitute a quorum for the transaction of business," results in a determination that the whole number of the East Orange city council is ten (there being provision in the charter for the election of two councilmen from each ward) and that a majority of such whole
number is six. There are many decisions in this State which support this construction of the aforementioned clause. See Mason v. Mayor, etc., of City of Paterson , 35 N.J.L. 190 (Sup. Ct. 1871); Doughty v. Scull , 96 A. 564 (Sup. Ct. 1915) (not officially reported); Dombal v. City of Garfield , 129 N.J.L. 555 (Sup. Ct. 1943); cf. Field v. Soffe , 79 N.J.L. 12 (Sup. Ct. 1909); Day v. Lyons , 70 N.J.L. 114 (Sup. Ct. 1903); State ex rel. Hawkins v. Cook , 62 N.J.L. 84 (Sup. Ct. 1898). All of the foregoing cases construe clauses reasonably similar to the clause in question, but none construes the charter presently before this court. In any event, construction of the provision which determines that a majority of the whole number of a body requires the presence of a majority of all seats of that body, whether filled or not, has been firmly established in our common ...