Civil action in lieu of prerogative writs.
This controversy is on a legal level. There are no facts in dispute. Defendant Ticknor was elected councilman at large of the City of Englewood, Bergen County, for a two-year term in November 1963. He qualified as such and was chosen president of the common council. The elected mayor, Francis J. Donovan, resigned from that office effective December 16, 1964. Thereupon Ticknor qualified as acting mayor. He has since continued in that capacity, contending that he is entitled also to exercise all of his prerogatives as a member of the common council.
The question of law now before the court is whether by his assumption of the duties of acting mayor, defendant should forfeit the office to which he was elected, or whether, at least, he should meanwhile be barred from exercising its powers and fulfilling its duties. The citizen-taxpayer plaintiffs say he cannot serve in both capacities because there is an incompatible duality of function contravening statutory and common law.
Ticknor was forced into his present status as acting mayor by the resignation of Mayor Donovan. The parties stipulate that the compulsion was generated by the terms of R.S. 40:171-20 as follows:
"In the event of the death, resignation, disqualification, or other disability, of the mayor of any city, the president of the * * * common council shall act as mayor until the next general election; shall be known as acting mayor; shall have all the powers and privileges; be entitled to the same salary, and be chargeable with the same duties and obligations as the mayor of such city; * * *."
It is noticed, at the outset, that this language does not expressly deprive defendant of his office or suspend his activity therein. It speaks only of his "powers and privileges" and his "duties and obligations" in the capacity of "acting mayor." Nevertheless, a prohibition against continuing to act as councilman is "clearly implicit" according to plaintiffs.
The first ground for this conclusion is derived from the architecture of government in Englewood, as it was designed by the provisions of the charter act (Acts Saved from Repeal, R.S. 40:109-1(1), et seq.). This organic law delineates a sharp separation of executive and legislative power. That deliberate division is implemented by interacting checks and balances. Without doubt, the exercise by one person of powers belonging to both departments would be out of joint with the statutory scheme. Plaintiffs cite hypothetical instances which serve to show how the legislative purpose could thus be thwarted.
Assuming that defendant's present position as an actor in both governmental spheres does not accord with the prescribed ideal, it will be actionable only if it is violative of the legislative will. I cannot find that his standing is untenable simply because he could, in a special set of circumstances, act distinctively in each wing of the structure. Such overlapping of function has expressly been approved in principle by the charter act itself. In R.S. 40:109-3(26) the following provision appears:
"Whenever there shall be a vacancy in the office of mayor, or whenever the mayor shall be prevented by absence from the city, sickness or other cause from attending to the duties of his office, the president of the common council, * * * shall act as mayor and possess all the rights and powers of mayor during the vacancy in office caused by the absence or disability of the mayor."
A dual function is therein countenanced, at least during the mayor's "absence from the city" or "sickness." In a case where the incumbent mayor temporarily cannot attend to his duties for such reasons, the president of the common council is directed to act as mayor in his place. It could not persuasively be argued that the president would have to obey the mandate in every instance at the expense of his elected position. Indeed, the decision in Freint v. Borough of Dumont, 108 N.J.L. 245 (Sup. Ct. 1931), is to the ...