Civil action in lieu of prerogative writs.
This is an action in lieu of prerogative writs. Plaintiff demands judgment that the special meeting of the township council of the Township of Clark on August 22, 1961 be declared illegal and void; that the resolution adopted at that meeting rejecting the dismissal of defendant Joseph J. Smith by the mayor be declared illegal and void, and that the part of the resolution rejecting all charges made by the mayor against defendant Smith be vacated.
Defendants move to dismiss the complaint on the grounds that the action was not brought within the time limited by R.R. 4:88-15, and further, that the complaint failed to state a claim upon which relief can be granted pursuant to R.R. 4:12-2. After hearing oral argument on the motion this court decided that in the interest of justice the suit should not be dismissed; that there was sufficient basis for the commencement of the suit three days beyond the time limit. See R.R. 4:88-15(a). This court at that time also determined that under the provisions of the statutes and the ordinance of Clark Township, the members
of council were entitled to service of a written notice of the special meeting of August 22, 1961, which notice should have included the purpose for which this special meeting was called. See N.J.S.A. 40:69A-179, 40:69A-43(c), 40:69A-180(b); R.S. 40:49-1; section 3 of ordinance No. 61-2 of Clark Township; Bohan v. Township of Weehawken , 65 N.J.L. 490 (Sup. Ct. 1900); Hicks v. Long Branch Commission , 69 N.J.L. 300 (E. & A. 1903).
This court reserved decision as to whether the actual attendance and participation of the plaintiff and the other members of council, except one, at this special meeting of August 22, 1961 constituted a waiver of the requirement of written notice. This was considered as a motion for summary judgment in accordance with R.R. 4:12-3. Affidavits were filed and testimony taken in court in lieu of depositions.
It was conceded that no written notice of the special meeting of August 22, 1961 was served on the members of council. The minutes reveal that the meeting was called to order at 10:40 P.M.; that Councilman Connor was the only one absent; that the other six councilmen were present, including plaintiff; that plaintiff questioned the legality of the meeting and protested against the same; that the resolution rejecting all charges brought against Joseph J. Smith, Director of Public Works and Engineering, by the mayor was adopted by a vote of 6-1, and that the plaintiff was the only one who voted against the same.
The affidavits and testimony revealed that plaintiff, Councilman Warren Crook, was in the municipal building on the night of August 22, 1961 attending a caucus meeting; that at 10:39 P.M. defendant Edward R. Padusniak, the township clerk, entered the conference room and told defendant Harold Harris, president of the township council, that he had one minute to make the meeting which was a special meeting. Plaintiff stated that this was the first indication he had of this meeting; that he attended the special meeting but was not aware of the business to be
transacted until the resolution in question was read; that he then challenged the legality of the meeting, and that no other business was discussed at this particular meeting, which lasted only a short time. Plaintiff further stated that he was not prepared to intelligently discuss the subject matter of the meeting; that the attorney was not present to consult with; that he did not intend to waive his rights although he knew that the council had until midnight of August 22, 1961 to act on the resolution. He further said that he was aware of the "Joe Smith incident"; that he attended the entire hearing before the mayor and was familiar with the entire case; that the matter was discussed at a caucus prior to August 22; that he knew that the resolution was passed reinstating Smith and that he voted "no"; that no one forced him to go to the meeting; that no one forced him to remain and cast his vote, and that he was not given the time or opportunity to persuade other councilmen.
The evidence also revealed that Padusniak, the township clerk, was in the municipal building on August 22, 1961 to continue a previous caucus meeting, and that at 10:35 P.M. he delivered a letter to Harris, president of township council, requesting the special meeting, which was signed by a majority of council members, and that plaintiff was present when the letter was delivered and that those who were in the conference room went into the council chamber for the meeting; that President Harris announced that a special meeting was to be called on Joe Smith; that plaintiff, who was on the dais, objected to the meeting after the "Smith" resolution was read; that plaintiff did not sign the letter requesting a special meeting, but went into the council chamber with the others. Councilman Cordone testified that he requested a hearing on Joseph Smith at several previous ...