Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Sullivan, J.A.D.
This appeal involves the issue whether the acting mayor of the City of Englewood, who assumed the duties of that office upon the resignation of the mayor, may continue to hold the office of councilman at large and exercise the powers and duties of councilman at large.
The facts are not in dispute and are as follows. The City of Englewood was incorporated by chapter 40 of the Laws of 1899, which act took effect in March of 1899. On April 11, 1899 the newly incorporated City of Englewood, at a referendum election, by a majority of the qualified voters adopted chapter 52 of the Laws of 1899, (R.S. 40:109-1(1) et seq. (Acts Saved from Repeal)). The city has been governed ever since under the provisions of that act and its amendments and supplements.
The City of Englewood is divided into four wards. One councilman is elected from each ward, and one councilman is elected at large by the entire electorate of the city. The Common
Council of the City of Englewood therefore is composed of five councilmen.
At the general election in November 1963 Francis J. Donovan was elected mayor for a term of two years. He duly qualified for that office and entered upon and performed the duties thereof. At the same election William D. Ticknor, Jr., was elected councilman at large for a term of two years. He duly qualified for that office and has since performed the duties as a member of the common council. At the organization meeting held on January 1, 1964, Ticknor was elected president of the common council.
In December 1964 Mayor Donovan tendered his resignation as mayor, which was accepted to take effect December 16, 1964.
A vacancy in the office of mayor is admittedly governed by R.S. 40:171-20,*fn1 applicable to cities generally, which provides:
"In the event of the death, resignation, disqualification, or other disability, of the mayor of any city, the president of the board of aldermen or 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; provided, however, this act shall not affect any proceedings already instituted nor any act heretofore signed by any officer as acting mayor."
Pursuant to the foregoing statute, defendant Ticknor, as president of the common council, assumed the powers and duties of mayor, and took and filed an oath of office as acting mayor.
The city solicitor of Englewood rendered a formal opinion that Ticknor, while acting as mayor, ...