64 N.J.L. 465 | N.J. | 1900
The opinion of the court was delivered by
This is a contest over the office of membership of the board of chosen freeholders of the county of Middlesex, from the borough of South River in that county.
The defendant answers by setting out the incorporation of-the borough, the statute which entitles it to a member of the board of chosen freeholders, the general statutes relating to the election of borough officers, including the member of such board, the act of the legislature of the state, entitled “An act relating to newly-created municipalities,” approved February 24th, 1898 (Pamph. L., p. 28), and that under the provisions of this act the first election in said borough was held on March 22d, 1898, at which the respondent was .duly elected a chosen freeholder; that said election was held in due conformity with the act and the general statutes regulating elections, and that he became entitled by such election to the office; that he took, subscribed and filed his oath of office according to the provisions of an act entitled “A further supplement to an act entitled ‘An act to incorporate the board of chosen freeholders of the said state/ approved April sixteenth,
The plea further avers that the clerk of the borough failed, as required by the statute in such ease, to give notice of an election of a member of the board of chosen freeholders at the annual municipal election held on the first Tuesday of March, 1899; that the relator was elected to such office by reason of the failure of such notice, and that such election was not legal because of the want of such notice.
The information further avers in distinct paragraphs thereof that the relator, whilst claiming to be so elected to such office, has, up to the time of the filing of the information and at all times hitherto, wholly neglected and absolutely refused to take,, subscribe or file the official oath required by law; and further that he has publicly declared and given out that he did not intend to take and file the official oath of a chosen freeholder, and that he did not intend to serve as such ; that he has not since his election claimed to be a member of such board, or made any demand either upon said board, or the respondent, for the office, and that, therefore, he is debarred therefrom and from exercising its duties and privileges.
The respondent claims to be entitled to hold such office and discharge its duties during the term provided by law, and prays that he may be discharged of the premises.
To this plea the relator has filed a general demurrer with a specification of causes upon which such demurrer rests. This demurrer admits the facts set up in the plea, and the case is so considered.
The information in this case is filed without leave of the court, under a supplement to the Quo Warranto act, approved May 9th, 1884 (Gen. Stat., p. 2633), which authorizes any citizen of this state who believes himself lawfully entitled to
By the act entitled “An act in relation to the writ of quo warranto,” approved February 18th, .1895 (Gen. Stat., p. 2635), it is provided, “ That in all actions of quo ivarranto, the Supreme Court may, if the writ, return and pleadings are properly framed for the purpose, determine by its judgment not only the title of the respondent to the office or franchise in question, but also the title of the relator or relators to the same office or franchise, and shall have power, by appropriate process or orders, to enforce its said judgment.”
At the common law and under our former statutes (Gen. Stat., p. 2632), after leave to file the information, it was only the title of the respondent that was inquired into, and if that was found bad, judgment of ouster passed against him without necessarily determining the title of the relator. It commanded the respondent to show by what' right—quo warranto —he exercised the office, not having a grant of it or having forfeited it. The judgment of ouster which followed only affected the status of the incumbent. The prosecutor was not bound to prove his title in order to put the respondent on his defence, and if the respondent failed in his proof of title or right, judgment of ouster followed without regard to the question of whether the relator was entitled or not; his title, if he claimed one, was not material to the judgment. His right to prosecute was adjudged in the leave given him to call upon the respondent to plead his title, and his right was not thereafter to be called in question, for he was not directly affected by the result of the proceeding, save in the matter of costs. And this principle still operates wherever the information is instituted in the name of the state through the attorney-general, or when the leave is granted by the court, to prosecute in the interest solely of the public. 19 Am. & Eng. Encycl. L. 660, and cases cited; City of Hoboken v. Gear, 3 Dutcher 265 ; Lore v. Jersey City, 11 Vroom 456 ; High Extr. Rem., § 712; Com. Dig. Quo War., tit. “Plea;'” State v.
In the case of Davis et al. v. Davis, supra, which was an information filed under the statute of May 9th, 1884, and in which the statute of 1895 was construed and made applicable, Mr. Justice Reed in his opinion said: “It is perceived that the statute strips the court of its discretionary power over the allowance of the information in one instance only, namely, where the relator himself claims the office. In all other cases, although the relator’s interest, by reason of his citizenship, or his liability for taxes or other causes, may entitle him to stand as relator, the discretionary power of the court over the
“ It could not have been the legislative intent to permit a person who files an information as a claimant of office to recover judgment of ouster, although it may be that such claimant has no title whatever, and the public interest will be injuriously affected by such ouster.
“ In this class of informations I think the respondent may challenge the right of the relator to file his information. Whether the method of interposing this objection be by motion to quash the writ, or by a plea in abatement of the writ, need not now be decided.” See, also, High Extr. Rem., §§ 630, 652, 700; State v. Boal, 46 Mo. 528; Shortt Inf. 179, 180.
Previous to the passage of the act of 1884, when it was necessary to obtain leave of the court tó file the information,, in cases when the dispute arose exclusively between two persons over the title to an office of this character, and when the granting of such leave rested in the discretion of the court,, these principles were generally applicable, and the leave would be refused unless the applicant showed a prima fade case of right or title to the office, and on the rule to show cause why an information in the nature of quo warranto should not be allowed, the respondent had the right to challenge the title of the relator, and if the challenge was successful leave was denied, unless the application was to preserve the public from injury. The ease of Bolton v. Good, 12 Vroom 296, is a familiar illustration of the application of this principle. In that case Bolton, the relator, claimed to have been elected city judge of Plainfield, to fill a vacancy in that office caused by the expiration of the term of Good in the same office. There was a dispute as to whether his term had expired. The relator was elected at an election for which no notice had been given by the city clerk, for an election to fill such office under the statute; there were no candidates nominated for such office, and the officers of election knew of no votes cast for such office until they were canvassed. The respondent on the rule challenged the right of the relator, and it was held
The relator has contended that his title to the office was not the subject of attack, but that the respondent must plead and show his title, and, if that be found to be bad, then judgment of ouster should be entered. But manifestly under the statute, and according to the authorities, this proposition is untenable.
The relator in this information has attempted to specify • his title to the office, as well as to specifically assail the title of the respondent. Upon a demurrer to this information .there are several serious questions as to the interpretation of the statutes relating to the election of members of the board •of chosen freeholders from the borough, the time of their election and the term of office, but it has not been considered that resort on this demurrer to the plea need be had to the information, and therefore these questions are not discussed or determined.
The determination will be confined to the plea itself, to •which the demurrer is filed, and the facts so far as the averment is concerned which alleges that the relator has refused to take, subscribe and file the oath of office as a member of the board of chosen freeholders, and the respondent contends that this failure or refusal leaves the relator without any right to the possession and enjoyment of the office.
Section 8 of the General Borough act provides that all officers of such borough shall within ten days after their election or appointment, and before entering upon the discharge ‘of the duties of their office, take and subscribe an official oath or affirmation and file such oath or affirmation with the clerk of said borough, and upon failing to do so the said office shall be deemed to be vacant.
This section of the Borough act, it is considered, can have no effect in this case whatever as it applies only to the ordinary borough officers.
It will be perceived that under this statute the act of taking, subscribing and filing this oath, taken in the manner prescribed, becomes necessary before he can enter upon the possession of the office under his election or appointment. The act becomes a condition precedent to the complete investiture of the office, and in contemplation of law just as much a requisite to its enjoyment as the election itself. It becomes an essential part of the title to the office. The member of the board of chosen freeholders is a creature of the statute, and he must comply with its requirements in order to be vested with the right to the enjoyment of the office.
The plea therefore shows that the relator did not have complete title to the office to which he was elected. This direct attack upon his title being made by the plea, and it being successful by reason of the' admission of the facts in the plea upon demurrer, it follows that his information must fail.
Whenever certain acts shall be done by an appointee (oath of office and giving bond) before he shall enter on the possession of the office under his appointment, such an act becomes a condition precedent to the complete investiture of his office. United States v. Le Baron, 19 How. 73.
Where an officer is acting without having been sworn into
The relator has neglected and refused to take his oath of office as required by the statute, as admitted by his demurrer to the plea, and, therefore, at the time of the filing of the information he had no title to the office in question, and no authority or right to enter upon the discharge of the duties thereof; and, therefore, in this case it has not become necessary to determine the title of the respondent incumbent. Bolton v. Good, 12 Vroom 82.
The demurrer is overruled and the judgment on the information must be for the respondent, with costs.