40 N.J.L. 463 | N.J. | 1878
The opinion of the court was delivered by
The first question for determination is whether the office was vacated by the relator, or a period put to his term by the transactions which took place, as set out in the information.
Under the charter of Bayonne, the term of office of the chief of police is not for any given period of time. His term ends only by removal for cause, accepting another and incompatible office, an accepted resignation, or his death.
Appointment to the office is upon a nomination by the mayor, and a confirmation of his nominee by the common council. §§ 3, 10, Revised Charter 1872.
There can be no question of the right of such officer to tender a resignation of his office, and upon the acceptance of the tender his holding ceases. Dil. on Mun. Corp., § 163 ; State v. Newark, 3 Dutcher 185; State v. Ferguson, 2 Vroom 107.
The information shows that, on the 3d of December, 1877, a communication was presented by the relator, and signed by him, to the mayor, addressed to the mayor and council of the city, in these words—“I respectfully tender my resignation of the office of chief of police of the city of Bayonne, to take effect upon the first day of January, 1878.” The mayor presented this to the
It is clear that while the matter of acceptance was under consideration by the board of councilmen, it was the right of that body to reconsider its vote, and vote as often as it saw fit upon the question, up to the time when, by a conclusive vote, accepted as such’by itself, a determination was reached. State v. Foster, 2 Halst. 101; State v. Justice, 4 Zab. 413; State, Shreve, pros., v. Crosley, 7 Vroom 428. Such final determination may be evinced by a public promulgation of the result, or by subsequent action inconsistent with the purpose of further review. Here the resignation presented by the mayor’s message was voted upon and accepted, and afterward the nomination by the mayor of the defendant to fill the vacancy which would occur by this resignation was taken up by the board, and by its deliberate vote confirmed.
This latter action was entirely inconsistent with the idea that the matter of resignation still remained open for further deliberation. Without any further action on the part of the board, its meeting formally adjourned. Its proceedings, public in their character and binding upon interested parties and the public, were required to be, and presumably were, published to the world in the official newspapers. Under this state of facts can it, with any fairness, be contended that the matter was still in abeyance, and that a conclusive determination had not then been reached? The mayor, who had necessarily joined with them in the act of acceptance, the defendant, who had been appointed, as well as the relator, had the right to consider that final action had been taken, and a settled conclusion reached. We have, then, a resignation tendered, the approval of the mayor, the vote of acceptance by the board of councilmen, the appointment of a successor, the adjournment of the board without an attempt to further revise their action, and the public announcement of their proceedings. It seems to me that the matter then was put beyond
A body having the power, and accepting a resignation, may, after such acceptance, revoke their action and consent to a withdrawal, if other rights have not arisen to be affected by such revocation. Dil. on Mun. Corp., § 163.
But this position of the relator assumes the board of councilmen to be clothed with the entire authority to dispose of the matter; a power which cannot be claimed for it, in my judgment. If it be conceded that the defendant, by his-nomination and confirmation, acquired no rights to hinder a revocation of the act accepting this resignation, the vote of the-board was of itself insufficient to accomplish it. The consent of the mayor as a part of the appointing power was as-necessary to this as it was to accept the nomination, and this-consent of the mayor was never obtained. If Yan Buskirk acquired conflicting rights, (a point which is to be considered,)' those rights were not to be disposed of in this way.
My conclusion is, that the proceedings of December 11th did not change the state of things existing at the adjournment of the board on the 4th, and their action accepting the-relator’s resignation must stand as a finality.
The termination of the relator’s term, on the 1st of January, being ascertained, the next question is, was Yan Buskirk properly appointed to the office? On December 4th, 1878, as the case shows, he was nominated by the mayor and confirmed by the board of councilmen, after relator’s resignation was accepted. The objection urged against this proceeding is
The question then presented is, whether a body having,.as then organized, power to appoint to office when it shall fall vacant, may anticipate the vacancy and fill the office by a prospective appointment, in the absence of any statutory regulation to the contrary. The almost uniform course of practice for years in this state, without question or objection, 'Strongly implies the legality of an appointment thus made; besides, it seems to me that the question is no longer open to controversy in the courts of this state. In the case of Haight v. Love, 10 Vroom 14, 476, by adjudication of this court, as well as by the Court of Errors, on review, an appointment so made was supported. In that case, it is true that the occurring vacancy was anticipated by but a few days, but the principle upon which that appointment was validated is unchanged by the circumstance that as many weeks intervene. The cases cited by the relator in support of an opposite view .are not applicable to this case. The case of Biddle v. Willard, already mentioned, went off, as I have already shown, upon the construction of local statutes. The same is true of ithe case of People v. Wetherell, 14 Mich. 48, and Nove v. Bradley et al., 3 Blackf. 158. This ground of objection, therefore, must be denied any force.
The defendant’s appointment is assailed through the reconsideration proceedings of December 11th. It is claimed that, as to this appointment, the proceedings of the board in confirmation were not a finality. The circumstances attending this appointment and reconsideration are substantially the same as those touching the resignation, and the same rules
My conclusion, then, upon this case is, that the relator’s resignation, to take effect on a future day, was legally admissible, and, when accepted by the mayor and council, (the power competent to receive it,) took effect according to its terms. After resignation formally accepted, the same power may revoke its action, and permit the officer to withdraw his resignation, but this must be with the consent of such officer, and. must be before new rights have intervened. Here no consent was given, and the attempted action was intercepted.