This matter is before the court on plaintiff's motion for summary judgment.
Plaintiff is the mayor of Ventnor City and filed this action to secure a determination whether the appointment of defendant Raymond Stark as municipal court magistrate of that municipality by the acting mayor is valid and binding on him as the subsequently duly elected mayor. The other defendant is Rodney Kreischer, president of the city council of Ventnor City. Both defendants assert, by their answers, that the appointment of Stark was valid and is binding on plaintiff for the full three-year statutory term.
The then current term of Warren Titus, mayor of Ventnor City, expired on December 31, 1966. A general election
was held on November 8, 1966 for the office of mayor. Titus and plaintiff were candidates. Shortly after the election was held, litigation was instituted to determine whether certain absentee ballots should be counted. It is not important in my view whether this constituted a contest of the election.
No certification as to the election having been made by January 1, 1967, the commencement of the mayor's term, Kreischer was elected by city council as president on January 2, 1967 and became acting mayor pursuant to the City Referendum Charter Act of 1897, Acts Saved from Repeal, R.S. 40:108-1 et seq. (charter). As such, on the same date he made a number of appointments of city employees. He reappointed Stark, a layman, (N.J.S. 2A:8-7), who had been judge of the municipal court of Ventnor City for many years and whose last term had expired December 31, 1966. City council, consisting of seven members, confirmed the appointment immediately thereafter.
On January 19, 1967 Titus, having been certified as the duly elected mayor, took the oath of office and commenced to serve as such. He served until February 21, 1967, at which time he submitted his resignation. Judgment was entered on or about March 8, 1967 declaring his election invalid. A special election was thereafter held in April 1967, following which Robinson was certified as the duly elected mayor. He immediately took office and shortly thereafter instituted this action.
Although some doubt may be expressed as to whether a justiciable controversy is presented in this proceeding since plaintiff has not attempted to appoint a successor to the office involved, and it well may be that any appointment he might make may not be confirmed by the council as required by the charter provisions, nevertheless I feel that a determination should be made. N.J.S. 2A:16-53 states that a person whose rights, status or other legal relations are affected by a statute may have determined any question of construction or validity arising from the statute, and
obtain a declaration of rights, status or other legal relations thereunder. Neither defendant has objected to such a determination.
R.S. 40:108-1(26) of the charter act provides as follows:
"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, or if he is absent or disabled, the president to be elected pro tempore 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."
Plaintiff advances the argument that this statute governs the situation and that by virtue thereof the powers of appointment of the acting mayor cannot extend beyond the time of the vacancy in the office of mayor.
He also suggests that R.S. 40:171-20, adopted in 1912, is not applicable. This reads:
"In the event of the death, resignation, disqualification, or other disability, of the mayor of any city, the president of the board of alderman 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."
I need not make any determination as to whether this latter statute, R.S. 40:171-20, superseded the charter provisions because I do not believe it makes any difference in this case. See, however, Heller v. Ticknor, 86 N.J. Super. 501 (App. Div. 1965) footnote at p. 503, which holds that a charter ...