On appeal from judgment of the Superior Court, Law Division, Mercer County.
Conford, Kolovsky and Carton. Conford, P.J.A.D. (dissenting).
The judgment on appeal is affirmed essentially for the reasons set forth in the opinion of Judge Moore. 117 N.J. Super. 379; 59 N.J. 530.
CONFORD, P.J.A.D. (dissenting). My study of the legislative history and factual background of this matter leads me to the following conclusions:
1. The Board of Freeholders had the right to fill the vacancy in the position which arose with the resignation of Mr. Naples as of September 1, 1970.
2. After the expiration of the full five-year Naples term resulting from his designation by the Freeholders on August 6, 1968 all succeeding holders of full five-year terms will be subject to designation only by the Governor, with the advice and consent of the Senate; and this will be true of appointees to all vacancies arising within any such terms.
In arriving at the foregoing conclusions, the first of which would dictate reversal in the instant matter, I follow the principle that if legislative language is clear and unambiguous, and the result so indicated is not absurd, totally unreasonable or plainly contrary to a manifest legislative plan or purpose, the judiciary should uphold it notwithstanding a different result might appear to the court more reasonable, logical, conventional or desirable.
In respect of the first conclusion, the amendatory statutory language in relation to the filling of vacancies unambiguously requires that vacancies shall be filled "in the same manner as the original appointment to such office was made * * *" (emphasis added). As is developed later in this opinion, for another purpose, "vacancies" are referable to the full term in the course of which the vacancy arises. Where, as here, the original appointment to the full term was in fact made by the Board of Freeholders, rather than by the Governor, the same body is to fill vacancies, but only during the five-year term first created and in relation to which the vacancy arose. That the legislature intended the literal import of the amendatory language quoted is supported by the contrasting content of the original act before amendment which called for filling of vacancies "in the same manner as original appointments are made" (emphasis added), i.e., in the same manner as original appointments are generally made.
The language of the amendment, moreover, is perfectly tailored to the scheme of the act in providing both a general and an alternate method of making a first appointment to the office after adoption of a resolution by the Board of Freeholders for the creation of the office in the county. The directive for filling the vacancy in the same manner "as the
original appointment * * * was made," in the light of the foregoing, cannot in my view be sensibly regarded as meaning anything other than that if the Governor made the original appointment for the very first term he fills the vacancy; if the Freeholders did, they fill it. I see nothing absurd, anomalous or plainly contrary to any general scheme or plan underlying this legislation in enforcing this plain statutory expression. Doing so merely means that the Board of Freeholders, if the original appointer, also fills all vacancies arising during the first five-year term. Thereafter all appointments, whether to regular terms or vacancies, are filled by the Governor (as is more particularly demonstrated hereinafter).
The fact that the office may be properly regarded as a state rather than a local position is not particularly significant, as against my first conclusion hereinabove. The Legislature already discounted that consideration somewhat in giving the Freeholders the original alternate appointive power. There is no greatly significant additional divergence therefrom in honoring the legislative direction to add thereto the power of ...