Leonard, Conklin and Pashman. The opinion of the court was delivered by Pashman, J.s.c. (temporarily assigned).
[85 NJSuper Page 159] This is an action to construe and determine the relative powers of the
mayor and common council of the Town of Morristown in the appointments of a town attorney and committees of the council. The common council consists of the mayor (defendant Manahan) and eight councilmen. Five of the councilmen are the plaintiffs in this action and defendants Noonan, Noncarrow and Cattano are the remaining three.
Defendant Stirone was appointed town attorney for a one-year term commencing January 1, 1963. The annual organizational meeting of the common council was held on January 1, 1964. At that meeting plaintiff Woodhull moved for the appointment of plaintiff Harold Watson as town attorney for a one-year term commencing January 1, 1964. The "motion" was carried by a 5-4 vote. Mayor Manahan filed a written veto of the appointment pursuant to R.S. 40:133-2.
On January 4, 1964 Watson took the oath of office as town attorney. On January 7, 1964 plaintiffs filed an action in lieu of prerogative writs to declare Watson the town attorney and to remove defendant Stirone from holding over as town attorney. At a subsequent meeting Woodhull moved to override the mayor's veto. The motion was carried 5-4, but Mayor Manahan stated that in the absence of a two-thirds vote his decision would stand.
In the second count of the complaint plaintiffs sought relief against defendant Manahan concerning his committee appointments made at the January 1 meeting. Plaintiff Woodhull was recognized at the meeting and moved that Manahan's appointments be rescinded and another slate of committees be appointed. The mayor declared Woodhull out of order. Plaintiffs seek judgment directing Manahan to entertain Woodhull's motion and to declare that in the event a majority of the board approves the motion, the persons named in the motion shall be considered the duly appointed committee members.
The trial court granted plaintiffs' motion for summary judgment and held that the mayor did not have the power to veto Watson's appointment. It also held that the mayor should have entertained the motion concerning committee
appointments and that a vote of the majority of the board could override the mayor's selection.
The Town of Morristown is organized under a charter enacted by the Legislature in 1865 (L. 1865, c. 455, p. 819). It has been modified by various amendments and by general statutes of the State. The charter never contained a provision for veto power in the mayor. A veto was first given to the mayor in 1932 by virtue of R.S. 40:133-1 et seq.
The starting point for discussion must be the statutory scheme relating to towns. R.S. 40:125-30 provides that a town attorney "shall be appointed by the council for the term of one year, and shall perform such duties as the council shall by ordinance prescribe." The statute relating to the mayor's veto power is as follows:
"Every ordinance or resolution adopted by the common council shall, before it takes effect, be presented to the mayor duly certified by the town clerk."
"If the mayor approves the ordinance or resolution he shall sign it. If he does not approve it he shall, within ten days after its receipt by him, return it to and file it with the clerk, together with his objections, and the council shall at its next meeting thereafter enter the objections at length on its minutes and proceed to reconsider the ordinance or resolution."
"If two-thirds of all the members of the council agree to pass the ordinance or resolution it shall take effect, but in such case the vote shall be taken by yeas and nays and entered in full on the minutes of the council."
"If the ordinance or resolution shall not be returned within ten days, as provided in section 40:133-2 of this title, it shall take effect in like manner as if the mayor had signed it."
There is little question that the mayor has a veto power over ordinances and resolutions under this statutory scheme. See Brookes v. Jones , 13 N.J. Misc. 780, 781, 180 A.
550 (Sup. Ct. 1935). The question is whether the intent of the 1932 act is to give the mayor the power to veto the appointment of a town attorney and whether such appointment constitutes a "resolution" within the meaning of that act.
The trial court relied principally on three cases: Haight v. Love , 39 N.J.L. 14 (Sup. Ct. 1876), affirmed 39 N.J.L. 476 (E. & A. 1877); McDermott v. Miller , 45 N.J.L. 251 (Sup. Ct. 1883), and ...