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Hayes v. Hudson County Board of Chosen Freeholders

Decided: August 9, 1971.

FRANCIS X. HAYES, PLAINTIFF-APPELLANT,
v.
HUDSON COUNTY BOARD OF CHOSEN FREEHOLDERS AND CLERK OF HUDSON COUNTY, DEFENDANTS-RESPONDENTS, AND CHESTER J. WOJTYCHA, INTERVENOR



Conford, Leonard and Matthews. The opinion of the court was delivered by Conford, P.J.A.D.

Conford

The questions before us are: (a) whether there is a vacancy in the Board of Chosen Freeholders of Hudson County resulting from the conviction, on April 22, 1971, of Chester J. Wojtycha, an elected member of that body, for violation of N.J.S.A. 2A:135-8(c) (being personally interested in sale of goods to the county); (b) if there is such a vacancy should it be filled in accordance with whatever law governs the filling of vacancies on such a body notwithstanding the fact that Wojtycha has filed an appeal from the conviction which is pending in this court, and (c) is there such a law?

The trial court held that no vacancy existed because N.J.S.A. 2A:135-9, although declaring a forfeiture of office on such conviction, provides for restoration of the office in the event of reversal of the conviction.

Wojtycha was elected to the board of freeholders on November 3, 1969 for a term of three years to expire January 1, 1973. He filed his appeal from the conviction referred to on June 29, 1971. It is pending, undetermined, in this court.

N.J.S.A. 2A:135-9 reads:

Any person holding an office or position, elective or appointive, under the government of this state or of any agency or political subdivision thereof, who is convicted upon, or pleads guilty, non vult or nolo contendere to, an indictment, accusation or complaint charging him with the commission of a misdemeanor or high misdemeanor touching the administration of his office or position, or which involves

moral turpitude, shall forfeit his office or position and cease to hold it from the date of his conviction or entry of plea.

If the conviction of such officer be reversed, he shall be restored to his office or position with all the rights and emoluments thereof from the date of the forfeiture.

All parties herein agree that a violation of N.J.S.A. 2A:135-8(c), which constitutes a misdemeanor, is an offense "touching the administration of his office" by the person convicted thereof, for purposes of N.J.S.A. 2A:135-9.

Also material to the disposition of this appeal are the provisions of N.J.S.A. 40:20-4 (applicable to first class counties, of which Hudson is one).*fn1 That section reads:

Vacancies in the board of chosen freeholders caused by death, resignation or inability to serve in office shall be filled by the remaining members of the board until the annual stated meeting of the board next after the vacancy occurs, and at the first general election held after the vacancy occurs a person shall be elected to fill the office for the unexpired term only.

Plaintiff, a citizen-taxpayer of Hudson County, argues that N.J.S.A. 2A:135-9 should be applied literally; that it expressly declares a forfeiture of office as of the date of the conviction, and that a forfeiture to the incumbent necessarily works a vacancy in the office forthwith which, in the ordinary course and consonant with sound public policy, should be filled by the processes of law. He further contends that the foregoing conclusions are not negated by the ...


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