This is a suit brought by plaintiff to establish his right to the position of deputy surrogate of Union County. The plaintiff had been appointed to that position on November 6, 1963, effective November 7, 1963, by the outgoing surrogate, Eugene J. Kirk. Notice of the appointment was duly given to defendant board of freeholders and a bond in the amount of $15,000 was entered into, as required by N.J.S. 2A:5-11. The oaths of office required by N.J.S.A. 41:1-3 and 41:2A-6 were administered by the afore-mentioned surrogate before his term expired.
On November 18, 1963, upon assuming office, the new surrogate, defendant Mary C. Kanane, immediately notified plaintiff that she considered his appointment as deputy surrogate invalid and ineffective. Since that time defendant Kanane has disputed plaintiff's title to the office and refuses to include plaintiff in the payroll as deputy surrogate. Defendant board of freeholders has likewise refused to process the papers relating to plaintiff's appointment or to include him on the payroll as deputy surrogate. Plaintiff demands judgment declaring him to be deputy surrogate and directing defendants to include him on the payroll as deputy surrogate
at an annual salary of $11,250. The case is presently before this court on cross-motions for summary judgment.
The most important question presented in this suit is whether plaintiff had acquired tenure as deputy surrogate, as provided by N.J.S.A. 40:38-25.1, thereby prohibiting his removal except for just and sufficient cause. Other questions presented are whether the oath taken by plaintiff was sufficient and whether the bond to the county was defective. These issues are treated below in the reverse of their order above.
It is defendants' contention that the bond required to be given by N.J.S. 40A:5-34 was defective by reason of the fact that it did not contain plaintiff's signature as principal (although it was signed by the surety) and, further, that it was not submitted until November 20, 1963, after plaintiff's appointment had been revoked by the incoming surrogate. Since the filing of the bond is a condition precedent to the investiture of a particular office, Manahan v. Watts , 64 N.J.L. 465, 473 (Sup. Ct. 1900), defendants would conclude that plaintiff never assumed the disputed office before being notified by them that his appointment was revoked. On this point plaintiff has pointed out that N.J.S. 2A:5-11 provides that the "deputy surrogate * * * shall enter into a bond to the county." By the use of such wording he contends that the appointee holds the position of deputy surrogate before filing the bond and that he cannot be divested of such position by the action of an incoming surrogate in revoking his appointment before the bond has been filed. The court agrees with the latter interpretation. If defendants' contention were correct, then the question of title to the office hinges on the outcome of a race between the parties -- the incoming surrogate seeking to revoke the appointment, and the appointee seeking to file his bond. Moreover, there has been no showing that the failure to furnish a bond, as required by N.J.S. 2A:5-11, must necessarily result in a divestiture of
the office involved. In fact, this very idea was summarily dispatched in Bachmeier & Co., Inc. v. Semel , 10 N.J. Misc. 1172, 1174, 163 A. 126, 127 (C.P. 1932), in which the court held:
"While these statutes seem quite definite, the rule has long been accepted in New Jersey and elsewhere throughout the United States on the grounds of public policy that the mere failure to file an official bond does not work a forfeiture ipso facto , nor vacate the office * * *."
Furthermore, N.J.S.A. 40:38-2, applicable to the situation of a county clerk performing any of his duties before giving a bond, provides that if he so acts he shall be subject to a forfeiture of $100 for the use of the State, but interestingly enough, does not require forfeiture of the office.
The fact that the bond submitted by plaintiff lacked his signature was obviously a technical oversight on his part which has not operated to harm the public interest which the giving of a bond is designed to protect. Although there is no New Jersey law on point, there is divided authority throughout the country on whether the surety would be liable when the principal has failed to sign the bond. The great weight of modern authority holds the surety liable nevertheless. 110 A.L.R. 959, 960. Again, it should be remembered that the crux of this case is plaintiff's right to office and not the liability of his surety on the bond. If he has substantially complied with ...