This is an action in lieu of prerogative writs to determine whether defendant holds the office of borough councilman.
In the November 1970 general election defendant was elected to the office of borough councilman for a term of three years, which term would commence on January 1,
1971. Previous to this election he had been elected as a councilman, the term of which would have expired on December 31, 1970.
On December 10, 1970 he resigned from the borough Council and was appointed by the council to fill a vacancy which had occurred in the office of mayor. On the same day defendant, as mayor, proposed one Peter Evert to fill the vacancy in council occasioned by his resignation, which appointment was confirmed by the council. Defendant, as mayor, and Evert, as councilman, continued in these offices until March 4, 1971 when a court decision ruled that both offices were illegally filled and the offices were declared vacant. On the same day of the court decision defendant took the oath of office as councilman, which office he had been elected to in the election held in November 1970 to commence January 1, 1971.
The question to be decided is whether defendant, by assuming the office of mayor and serving in that office until March 4, 1971, when that appointment was declared invalid, has forfeited his right to the office of councilman.
The offices of mayor and councilman are not compatible. Our cases support the view that a mayor is not to be counted as a member of council except in the situations mentioned in the statute, among which are to constitute a quorum for the transaction of business and to break a tie. See N.J.S.A. 40:88-1; also Grimes v. Miller , 113 N.J.L. 553 (Sup. Ct. 1934); Freint v. Dumont , 108 N.J.L. 245 (Sup. Ct. 1931).
When defendant was selected to fill the office of mayor on December 10, 1970 he vacated the office of councilman, to which office he had been elected to serve for the balance of that year. The office of mayor to which he was appointed and confirmed on December 10, 1970 was for the unexpired term, which would continue to December 31, 1971. He did not exhibit any interest in the office to which he was elected, i.e. councilman, until the office of mayor was declared vacant because of his illegal appointment thereto.
Defendant selected Evert to his vacated position on December 10, 1970, at which time Evert's selection was confirmed by the borough council. Defendant knew or should have known that this appointment, when confirmed, would expire on December 31, 1971. See N.J.S.A. 40:87-13.
Plaintiffs claim that defendant's acts clearly indicate his abandonment of the office of councilman to which he was elected for the term commencing January 1, 1971, ...