63 N.J.L. 634 | N.J. | 1899
The opinion of the court was delivered by
On September 19th, 1898, the board of street and water commissioners of Jersey City passed “An ordi
The defendant in error, a resident and taxpayer of Jersey City, was allowed a writ of certiorari, and a judgment of the Supreme Court was afterwards obtained setting aside the ordinance, and this writ of error brings that judgment before us for review.
While numerous reasons are assigned in the record, they all centre around two propositions — first, whether the defendant in error has such an interest in the subject-matter of the writ as to give him a legal standing to prosecute it. The court below adjudged that he had, and'we concur in the conclusion reached by that court and find no occasion to add anything to the reasoning and authority by which it is supported. The second proposition relates to the validity of the ordinance itself. It is contended that the board of street and water commissioners has no power to authorize grade crossings. The court below sustained the right of the board, and in that conclusion also we agree. Such authority is given by Gen. Stat., pp. 471, 472, §§ 50, 51.
But the ordinance is assailed principally upon the ground that it was not legally adopted. The board of street and water commissioners is the governing body .of Jersey City, and it enacts all the local laws of that city respecting streets and water. It consists of five members, and the ordinances passed are subject to the mayor’s approval, and if vetoed by him may be again passed, notwithstanding his objections, by four votes of the board. Gen. Stat., p. 465. The ordinance in question was adopted at a regular meeting held September 19th, 1898, there being four votes for and one against it. It was vetoed by the mayor on September 28th, and finally passed over his veto on the 3d of October, 1898, receiving the same number of votes. But the contention is that one of them was not such as could give efficacy to the ordinance. It
While there has not been furnished the best proof that Smith actually accepted the office of colonel, yet in the absence of any rebuttal we shall hold, as did the court below, that it is sufficient'and that he did accept such office.
It is also insisted by the plaintiffs in error that Smith should be made a party in this proceeding, but we think that where an action is instituted the object of which is only to determine the validity of. the act or thing done by an officer, and not involving his personal integrity or want of good faith, the officer himself is not a necessary party. No allegation or proof of bad faith on the part of any one appears in the record.
The question at issue is thus narrowed down to the efficacy of Smith’s vote in the adoption of the ordinance. Without his vote it could not have been passed over the veto; neither could it without every other vote it received ; and it is not strictly accurate to say that his vote had any more potency than any other. After his appointment Smith continued to discharge the duties of his office as commissioner and was present and voted when the ordinance was adopted, as the official minutes show. It would therefore be a pure solecism to call the office vacant at that time except in the strictly legal sense of having no occupant with a de jure title. The acts done by Smith in respect to the adoption of the ordinance were neither more nor less than he would have done had the Fourth regiment never been organized. It is there
Smith, then, being in the office under color of a legal title ah origine, and no other person claiming a right' to it, was he a commissioner de facto ? Lord Ellenborough, in. 1805, in Rex v. Bedford Level, 6 East 356, said : “An officer defacto is one who has a reputation of being an officer, who assumes to be and yet is not a good officer in point of law.” This definition has never been questioned, and all those given by the text-writers since are little more than variations of- this one. Tested by this ancient or any modern definition, Smith, must be held to have been such an officer when this ordinance was passed. He certainly had color of title and reputation, for the legal voters of Jersey City elected him in the spring of 1898 a member of the board for the term of three years, and he duly qualified as such and entered upon his duties with the full knowledge and acquiescence of-the public. He had never resigned. The board had not been abolished and his term had not expired. It has been argued and the record shows that he had been:absent from seyeral meetings of the board, but it cannot be held that a vacant chair in itself makes a vacant office. Such a rule would work bad results in most of our legislative or governing bodies. The question in a case like this is not whether a member has been frequently absent but whether he was present and voted when the ordinance was adopted. He did not assert a right which any other person claimed, or perform any official duties that any one else pretended to have any right to perform in his stead, but only those duties which belonged to the office he was elected to fill and which the law contemplated should be done
But this legal protection is not afforded where the defects in the title of the officer are notorious and such as to make those relying on his acts chargeable with such knowledge. What, then, may be considered notice sufficient to warn third persons and the public? The expiration of the term of an officer and the appointment or election and qualification of his successor, the resignation of a public officer, the abolition of the office itself by an act of the legislature, the refusal of the board or legislative body of which the officer is a member to recognize him, or the judgment of a court against the title of the officer, are such facts as third persons and the public are, as a general rule, required to take notice of. But in this ease none of these facts existed, but just the contrary were known to every citizen of Jersey City. All knew that Smith had been legally elected; that he had not resigned ; that his term had not expired; that no court had questioned his right to serve; that no one claimed a right to his seat; that the board had not been abolished; that the members recognized him as one of their number, and that he took part in their proceedings. All of these things were enough to confirm the belief of third persons and the public in Smith’s right to serve them. If it was publicly known that he was colonel of the Fourth regiment, it was quite as publicly known on the 3d of October, when the ordinance was adopted, that the war with Spain had ended and only the terms of a formal treaty of peace were being considered. Whether he had in fact accepted the office of colonel, and what the nice distinctions are between de jure and defacto officers, they could not jbe expected to know, nor were they bound to know, before accepting the benefits of any ordinance he might by his vote assist in passing. Another significant proof of the general acquiescence of the public in Smith’s exercise of the office appears in the fact that the mayor of the city whose veto, as printed in the record, manifests great hostility to the ordinance, well knew that the four votes that first passed it could
There are no facts in this case to justify us in relaxing the -wise and ancient rule so deeply rooted in public policy, that ^ the acts of defacto officers holding under color of a title originally lawful, when acting in good faith, will protect third ;• persons and the public in their dealings with them, whether serving alone or as members of a governing or legislative .body.
The learned counsel for the prosecutor have invited our attention to many cases, but we fail to discover their applicability to the facts in the record before 11s. There can be no difference of opinion as to all such as'hold that when a person filling one office accepts another and incompatible one, his de jure title to the first ceases, and his successor may at once be appointed or elected, or that the acts of an officer whose term has ended and his successor has qualified and taken possession in his stead are void, or that the official acts of a city council done after the term for which it was elected, has expired are illegal; also the acts of a board after it lias been abolished by the legislature, or that the acts of one who has not, and never had, any color of title to the office, are void.
But this case rests entirely upon the question whether Smith when he voted for the ordinance in dispute was a commissioner de facto, and his acts, therefore, valid as far as the rights of third parties and the public are concerned. We hold that he was such an officer, and that the ordinance is valid. This conclusion results in a reversal of the judgment of the Supreme Court setting aside the ordinance. '
For affirmance — Gummere. 1.
For reversal — The Chief Justice, Dixon, Garrison, Ludlow, Bogert, Nixon, Hendrickson, Adams, Vee-DENBURGH. 9.