In this matter the Court is asked to interpret and determine the intent and meaning of N.J.S.A. 19:32-26 as it applies to the appointment of a person to fill a vacancy for an unexpired term in the office of Superintendent fo Elections for Mercer County, a second class county.
Under the authority of N.J.S.A. 19:32-26 Mercer County created the office of Superintendent of Elections on April 16, 1968. The resolution creating such office was filed
in the Secretary of State's office April 22, 1968 and the resolution took effect on July 4, 1968 under the above statute. The Governor of the State of New Jersey made no appointment to the office within 30 days following the effective date of the resolution, and subsequently on August 6, 1968 the Board of Freeholders of the County of Mercer adopted a resolution wherein they appointed Samuel A. Naples to the office of Superintendent of Elections for a term of five years from said date, the five-year term being from August 7, 1968 to August 7, 1973. The resolution of appointment was filed with the Secretary of State's office August 8, 1968. Mr. Naples resigned from the office and submitted his resignation to the Secretary of State effective September 1, 1970.
Subsequent to the resignation of Mr. Naples, the Board of Freeholders provided on their agenda for their regular meeting of September 1, 1970 to take up the matter of the appointment to fill the vacancy created by Mr. Naples' resignation. Prior to the commencement of the Freeholder's meeting on September 1, 1970, an order to show cause was issued by this Court restraining the Board of Freeholders from acting on said appointment. The said restraint remains in effect. Also subsequent to Mr. Naples' resignation the Governor of the State of New Jersey submitted the name of an appointee to the New Jersey State Senate for its advice and consent.
A hearing on the order to show cause was held on September 4, 1970 at which time the Attorney General of the State of New Jersey was granted the right to appear in this matter as amicus curiae. The argument on the order to show cause was adjourned from September 4, 1970 and fully heard with all parties present on September 15, 1970.
N.J.S.A. 19:32-26 was first adopted under the L. 1947, c. 167 and the provisions for appointment under the statute at that time provided as follows:
The office so established shall be filled by some suitable person who shall be nominated by the Governor with the advice and consent of the
Senate for a term of five years from the date of his appointment and until his successor is appointed and shall have qualified.
As to vacancies the statute at that time provided:
Vacancies shall be filled, for the unexpired terms only, in the same manner as original appointments are made.
The said section of Title 19 was first amended by L. 1949 c. 188. The amendment did not affect the above quoted sections of the law involving appointment or vacancies. The amendment limited the effect of the statute as to certain specified second class counties.
In 1953 there were a series of three amendments adopted and signed into law affecting this section of Title 19. The first 1953 amendment was adopted on April 15, 1953 (L. 1953 c. 84). The amendment provided authorization for certain fifth class counties to appoint a Superintendent of Elections but did not change the above quoted sections of the law. On July 20, 1953 (L. 1953 c. 246) an amendment was adopted which again made no change in the above quoted sections but provided that the population classification of the various counties would be governed by the 1950 census.
The third and last amendment made during the year 1953 was adopted on December 30, 1953 (L. 1953 c. 444) during a special session of the Legislature. There were major changes to the above quoted sections of the statute and those amendments as adopted read as follows:
The office so established shall be filled by some suitable person who shall be nominated by the Governor with the advice and consent of the Senate for a term of 5 years from the date of his appointment and until his successor is appointed and shall have qualified. In the event that no such appointment to such office is made within 30 days following the taking effect of the resolution, heretofore or hereafter adopted, of the board of chosen freeholders of the county, as herein provided, then the said board of chosen freeholders of the county shall appoint some suitable person to fill such office ...