86 N.J.L. 442 | N.J. | 1914
We think the prosecutor’s interest is sufficient to justify his prosecuting the writ. We also think that certiorari is a proper remedy to review resolutions which created the new positions. Even if the positions could he regarded as offices, quo warranto would not he the effective remedy; it would only oust the incumbents; what the prosecutor seeks is to abolish the office.
We pass to the merits. Mr. Ferris’ resignation was to take effect on May 4th, 1914. The law does not regard fractions of a day and the resignation was as effective at the stroke of midnight on May 3d as at any hour. To hold that he continued in office after the beginning of the day of Marr 4th would be equivalent to holding that lie continued during the whole day; if so, his resignation would not take effect until the stroke of midnight of May 4th, or, in other words, not until May 5th. This result seems to be conceded by counsel’s argument likening Hie case to Hie payment of a debt where the debtor has the whole day. The case to which counsel for the prosecutor referred us is an authority in point, State, ex rel. Farrer, v. McIntosh,, 122 N. W. Rep. 462. In fac^ counsel for the defendant, in effect, conceded the weakness of the claim and rested in the main on the claim that Mr. Ferris was a de facto officer. He acted as a commissioner on May 4th; was recognized by his colleagues and took part in other proceedings besides the vote on Hie ordinance now in question. Perhaps if, in the other cases, as in this, his voto had been essential to make a majority, the question might have been raised sooner. One of the important points of difference between a de facto officer and a mere intruder is that the former acts under color of right. Dugan v. Farrier, 47 N. J. L. 383; affirmed on opinion, 48 Id. 613; Erwin v. Jersey City, 60 Id. 141; Oliver v. Jersey City, 63 Id. 634. The Erwin case is especially instructive, since it was there claimed that Mr. Erwin’s predecessor was also a de facto officer. What determined the court against Mr. Weart was the fact that he had laid down the work and himself described his action as taking it up. 60 Id. 148. So, in this case, Mr. Ferris had laid down