Gaulkin, Foley and Collester. The opinion of the court was delivered by Gaulkin, S.j.a.d.
In this action in lieu of prerogative writs the Law Division held that plaintiff Thomas F. Higgins is entitled to the office of magistrate of the Municipal Court of Gloucester Township. Samuel W. Strauss, who claims the office, and the township appeal.
The case was presented to the Law Division upon a stipulation of facts which sets forth, in part, that:
"Since January 1, 1959, the Township Committee of the Township of Gloucester was composed of a Democrat majority, with a Republican minority. On January 6, 1961, the said Democrat majority appointed one, Clarence Reberkenny, as Municipal Judge of said Township for a three year term to expire January 6, 1964. At the General Election held on November 5, 1963 two of the incumbent Democrat majority members were defeated by two Republican candidates, thereby causing a change in the political complexion to Republican control as of January 1, 1964, with three Republicans and two Democrats. Immediately before December 27, 1963, the said Clarence Reberkenny was asked to resign so that the said Democrat majority could perpetuate the position of Municipal Magistrate for its own political designee, and an appointment be made of Thomas S. Higgins for a three year term from said date; that the said Clarence Reberkenny accordingly submitted a resignation, effective as of December 27, 1963, which the then Democrat majority accepted and an appointment was then made of Thomas S. Higgins, effective as of December 27, 1963, for a term of three years. The said Clarence Reberkenny had received his salary to the end of his term and had made no refund for the unserved portion of his term; and the said Thomas S. Higgins assumed the duties of said office on December 30, 1963." (Emphasis ours)
Higgins was appointed by a vote of 4 to 1, the sole Republican (Field) voting "No."
The stipulation continues:
"George J. Denver and Ronald C. Smith took office as members of the Township Committee on January 1, 1964. On January 3, 1964, the Township Committee introduced a resolution revoking and rescinding the appointment of Thomas S. Higgins as Magistrate for the Township of Gloucester for three years; said resolution was adopted by a three to two vote, with George J. Denver, Ronald C. Smith and Arthur Field voting to revoke and rescind the appointment of said Thomas S. Higgins. Said resolution provides as follows:
WHEREAS, the appointment by resolution on December 27, 1963, by the Township Committee of the Township of Gloucester, of Thomas S. Higgins, as Municipal Judge, for period of three (3) years from said date, constituted an encroachment on the right of the public in the selection of its own officials, was improperly motivated, is without legal authority in law, and is, therefore, void;
BE IT RESOLVED * * * that the resolution * * * passed December 27, 1963, appointing Thomas S. Higgins as Municipal Judge of the Township of Gloucester, for the period of three (3) years from said date, be and the same is hereby rescinded."
On January 3, 1964 the township committee appointed Strauss as magistrate for a period of three years, ...