In November 1975 an election was held for two at-large positions on the Garwood Borough Council. Two of the four candidates were incumbents, one from the Democratic Party and one from the Republican Party. Two challengers, one from each party, also ran for these positions.
Upon counting the votes cast it was determined that the Democratic incumbent received the highest number of votes, while the Republican incumbent (Jones) and the Democratic challenger (Renaud) tied for second place. The county clerk then issued a statement declaring that, because of the tie vote, a vacancy existed.
On January 13, 1976, at the annual reorganizational meeting of the borough council, Jones was requested to remain as a holdover pending action by that body in regard to the
appointment of his successor. At the next regularly scheduled meeting of the borough council on January 27, 1976 the council adopted a resolution appointing Renaud to fill the vacancy which then existed.
On January 30, 1976 the Republican Committee of Garwood and several individual citizens and taxpayers of that borough joined as plaintiffs and filed an action in lieu of prerogative writs against the borough council and Renaud individually. The first count of the complaint alleged that the borough council violated the Municipal Governing Body Vacancy Law, N.J.S.A. 40:45B-1 et seq. (L. 1975, c. 213), by appointing a Democrat to fill the vacancy in the office of councilman, and sought temporary restraints as well as final judgment ousting Renaud from office, and such other relief as the court deemed proper.
In the second count plaintiffs alleged that the failure of the borough council to publish an agenda of the meeting at which the appointment was made violated the Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. (L. 1975, c. 231), and that said violation constituted a separate grounds for voiding the actions of the borough council.
The court issued temporary restraints enjoining Renaud from exercising any duties or receiving any salary for the office of councilman. On February 4, 1976 an application by defendants to lift the restraints was denied. Subsequently, plaintiffs moved for summary judgment on the return date of the order to show cause.
The Municipal Governing Body Vacancy Law, supra , provides the procedure to be followed in the filling of vacancies which occur in offices on the municipal level. N.J.S.A. 40:45B-6 sets forth a number of conditions under which an office shall be deemed vacant. This statute explicitly incorporates the provisions of N.J.S.A. 19:3-25 as one of those conditions. The latter statute, in pertinent part, provides as follows:
When an equal number of votes shall have been given to two or more persons to fill any office for which they shall by law be qualified, the office shall be deemed to be vacant.
It is apparent that in the factual situation presently before the court, a vacancy within the scope of the Municipal ...