Matthews, Fritz and Botter. The opinion of the court was delivered by Matthews, J.A.D. Fritz, J.A.D. (dissenting).
Plaintiffs, residents and taxpayers of the Borough of Closter, Bergen County, instituted this action in lieu of prerogative writs seeking to set aside the appointment of defendant Milstein as a member of the Borough governing body. The Law Division Judge, after considering the pleadings and affidavits filed and oral argument, concluded, as a matter of law, that Milstein's appointment was invalid and entered summary judgment in favor of plaintiffs. This appeal followed.
On application of defendants, we stayed the judgment of the trial court and, because of the public nature of the question involved, we have, at the request and with the consent of all parties, accelerated the appeal and proceed to a determination of the merits on the record below and the briefs filed with us.
The Borough of Closter is organized under the provisions of the "Borough Act," Subtitle 6 of Title 40 of the Revised Statutes, N.J.S.A. 40:86-1 through 40:94-6. The act provides that each Borough created thereunder is to be governed by elective officers consisting of a mayor and six councilmen. N.J.S.A. 40:87-1.
On Novmeber 20, 1974, a regular meeting of the governing body of the Borough of Closter was convened for the transaction of business. Present were three of the six elected councilmen and the mayor. This attendance constituted a quorum for the transaction of business. N.J.S.A. 40:88-1. During the meeting a letter of resignation from the office of councilman was received from Councilman Brown and read into the record of the meeting. Thereupon,
a resolution accepting the resolution was offered, seconded and adopted by the three council members in attendance.
The mayor then submitted the name of defendant Milstein to fill the vacant council seat. The nomination was moved for confirmation by one of the council members and seconded. A roll call vote resulted in two votes for the appointment and one against. Thereupon, the mayor cast his vote in favor of the nomination. Milstein's nomination was immediately declared confirmed, and he was administered the oath of office, and thereafter participated in the meeting as a councilman.
The trial judge concluded that the filling of a vacancy in the office of councilman under the borough form of government was governed by the provisions of N.J.S.A. 40:87-12, and that since under that statute the mayor may only vote to break a tie council vote on an appointment to fill a vacancy, his vote in this instance was a nullity.
Defendants argue that the trial judge ignored the provisions of N.J.S.A. 40A:9-132 in reaching his decision. They contend that this statute impliedly repeals so much of N.J.S.A. 40:87-12 as would limit the mayor's right to vote in cases where there is a tie. N.J.S.A. 40A:9-132 reads:
In every municipality, unless otherwise provided by law, if the governing body shall fail (a) to organize and elect a president or chairman at its annual meeting held for such purpose, (b) to fill any vacancy in office or position, (c) to adopt any resolution or ordinance, or (d) to take any action whatsoever, by reason of a tie or insufficient vote among the members, the mayor shall vote in aid of said organization, the election of candidates, appointments of officers or others, adoption of resolutions or ordinances or the taking of any other action.
We fail to see how this statute can be controlling. Section 132 specifically provides that it should apply in all cases "unless otherwise provided by law." The Legislature has in fact provided otherwise by law, and has done so ...