WHITE v. LAKEWOOD TOWNSHIP, 131 N.J.L. 249 (1944)

36 A.2d 66

CHARLES WHITE, PROSECUTOR, v. THE TOWNSHIP OF LAKEWOOD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.

Supreme Court of New Jersey.Argued October 5, 1943 —
Decided March 2, 1944.

There is a presumption in favor of the good faith of a governing body and the proof to establish the contrary must be clear and convincing.

On certiorari.

Before BROGAN, CHIEF JUSTICE, and Justices BODINE and COLIE.

For the prosecutor, Milton Miller.

For the respondent, J. Elmer Matthews.

The opinion of the court was delivered by COLIE, J.

Certiorari was allowed to review the action of the township committee of Lakewood in repealing two ordinances, one creating the office of recorder in the Township of Lakewood, the other amending an ordinance fixing the compensation to be paid the recorder. Eight reasons for reversal were filed but, as prosecutor states in his brief, “the meritorious question is whether or not the action of the township committee was taken in bad faith.”

Charles White, the prosecutor, was appointed to the office of recorder on June 25th, 1942, for a term of three years. At the general election in November, 1942, Dr. Luke Johnson and Mr. Charles E. Miller were elected to the township committee, replacing two former committeemen. On February 4th, 1943, the repealing ordinances were passed by the affirmative vote of three committeemen, the fourth member not voting.

To establish that the ordinances abolishing the office were passed in bad faith, the prosecutor produced one Thomas

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Malone who testified to a conversation with Mr. Curtis, one of the committeemen, in which the latter said that the recorder would be removed because he had worked against him (Mr. Curtis) in the election. Mr. Curtis denied that the abolition of the office of recorder was motivated by political reasons and gave as his reason for voting to abolish the office the defeat, in 1938, by a two to one vote, of a proposal to establish a recorder’s court in Lakewood at an annual salary of $1,200.

Prosecutor testified to a conversation with Dr. Johnson in which the latter is alleged to have said, “You went out and worked against us and you must go. We have our own friends to take care of.” Dr. Johnson denied having made such a statement and stated that his reason for voting to repeal the ordinance creating the office of recorder was because of the vote at the general election in 1938 and because he knew that public opinion was against having a recorder’s court.

There is a presumption in favor of the good faith of a governing body and the proof to establish the contrary must be clear and convincing. Buckley v. Guttenberg, 87 N.J.L. 434. The proof in the instant case falls short of the required standard. The writ is dismissed, with costs.