89 N.J.L. 239 | N.J. | 1916
The opinion of the court was delivered by
Much difficulty has been caused by the manner in which the jnúnted case is made up. We have only the information in the nature of a quo warranto, a demurrer by the defendant Cerrata, a separate demurrer by the defendant Moses, and a joint- judgment against both. The other defendants are not Shown to have been brought into court. The practice is set forth in Attorney-General v. Delaware and Bound Brook Railroad Co., 38 N. J. L. 282. It is unfortunate that in this state of the record we can deal only with the cases of Cerrata and Moses.
The real question is whether a group of nine trustees of a cemetery association, who may be called the Prank partjq or a group of fifteen who may be called the Bonynge partjq are entitled to the office. The Prank party claim under an elec
The pleadings are unusual. The information recites that it was exhibited with leave of the court in the name of tire attorney-general, and although no rule to' show cause or order granting leave is printed in the ease, the defendants do not dispute the fact, if, indeed, they could dispute it in the face of their own demurrer. We must assume, therefore, that the question of the. propriety of the information was adjudicated by the justice who gave leave to exhibit it in the Supreme Court. The change in the statnie since the decision of State v. Utter, 14 N. J. L. 84, by virtue of which leave may be by a single justice instead of by the court, makes the language of Chief Justice Hornblower inapplicable. The demurrer does not under present practice in effect seek to review a point already adjudicated by the 'court; and we do not doubt that the action of the justice may be thus reviewed. The demurrer admits the truth of the facts that are well pleaded. Among these are the averments that the term of office of but five members of the board of trustees expired; that Frank arbitrarily refused to permit any of certain-named person, lotowners and creditors, to participate in the meeting, and refused to permit them to vote; that he declared a resolution adopted reducing the number of trustees from fifteen to nine; and nominated nine persons for trustees, although the terms of office of ten existing trustees, including the relator, had not expired; that he refused to permit votes to be cast by persons representing seventeen lots; that the nine directors constituting the Frank party usurp, intrude info and unlawfully hold and exercise the office of trustees. These averments suffice to entitle the relator to judgment against Cerrada. Tbe demurrer admits the fact that the demurrant usurps, intrudes into and unlawfully holds and exercises the office. Davis v. Davis, 57 Id. 203,
The defendants argue that the relator is not shown to have any right to exhibit the information. The point is that although the demurrer admits that the relator is one of the hold-over trustees, his title to the office is not fully set out in the information. The demurrants have conceived the notion that under our present act an information in the nature of quo warranto is no longer what it was, a public proceeding to determine a public right, but rather a mere civil suit inter partes to determine which is entitled to' an office. The error has arisen froan the failure to observe the three different species of information—-first, an information by the attorney-general alone without leave of the court at his own discretion; second, an information under section 1 of the act (Comp. Stat., p. 4210) in the name of the attorney-general by leave of the court at the instance of any person desiring to prosecute; third, an information under section 4 of the act (Comp. Stat., p. 4212) where the question is of usurpation or intrusion into a municipal office or franchise by a citizen who believes himself lawfully entitled to such office or franchise. The rights of the attorney-general on his own initiative' come from the common law; the right of any person desiring to prosecute in the name of the attorney-general comes from section 1 of the act of 1795 (Pat. L., p. 177), as amended in 1903 (Pamph. L., p. 375; Comp. Stat., p. 4210); the right of the claimant of a municipal office to proceed in his own name comes from the act of 1884. Pamph. L., p. 320; Comp. Stat., p. 4212. It is only the third class that resembles a civil suit inter partes. Even in eases of that class, under the act as originally passed, the title
It is further urged that an information will not lie against several persons claiming to be a boar-d of trustees. The theory seems to be that each trustee holds an independent position which must be made the subject of a several suit. We do not doubt that each trustee holds his own office, and that an information could be maintained against each alone; but that is too narrow a view to take of the case. The real question is whether the Frank party constitute the board of trustees, or whether as a board they are usurpers. This can best be determined by bringing all the individual members into court in the same suit. In that suit can be determined any fundamental question that affects the title of all, and at the sarnfe time any question that affects the title of one only. The point arose in the King’s Bench as long ago as 1116. An information was filed against six different persons for usurping three different offices, affecting the legality of the membership of the freemen and free burgesses and common councilmen of a town. The point was distinctly taken and overruled by Lord Mansfield and his associates. Symmers v. The King, Cowp. 489. A precedent of an information against
The suggestion that the effect of a judgment for the relator would be to oust (he corporation itself of its franchise hardly merits discussion. The last cases cited are sufficient. The information is not an attack upon the existence of the corporation, or even an attempt to oust all the trustees. The only controversy is as to the personnel of the board. If the Prank parly are ousted, the association still has trustees. The judgment against Oerrata is therefore affirmed, with costs.
We have said enough to dispose of the case. It may gratify counsel to know that we have considered the fundamental question and agree with the Supreme Court that creditors had no right to vote. Section 1 of the act of 1848, as amended in 1879 (Comp. Stat., p. 372), is obviously inconsistent with the act of 1899 (Comp. Stat., p. 391), which regulates the right to vote, as well as the number, qualifications and terms of office of trustees. By the later act, proprietors of lots who are of full age are made the electors and the number of trustees may be as many as fifteen. The West Eidgelawn Cemetery, which is the one now involved, had evi
For affirmance as to Cerrata—The Chancellor, Ciixee Justice, Garrison, Swayze, Parker, Bergen, Kaltsch, Black, White, Terhune, Beppenheimer, Williams, Gardner, JJ. 13.
For reversal—Bone.
For affirmance as to Moses—Bone.
For reversal—The Chancellor, Chief Justice, Garrison, Swayze, Parker, Bergen, Kaliscii, Black, White, Terhune, Hepphnheimer, Williams, Gardner, JJ. 13.