Miller v. Inhabitants of Washington

67 N.J.L. 167 | N.J. | 1901

The opinion of the court was delivered by

Gummere, J.

This writ is sued out for the purpose of

reviewing the action of the common council of the borough of Washington in electing one John B. Scott treasurer, on the 24th day of May, 1901.

The proceeding is brought by the prosecutor, who was elected collector of the borough at the annual spring election held in 1901; and his contention is that the section of the charter of Washington which provides for the election of a treasurer by common council has been repealed by the General Borough act of 1897 (Pamph. L., p. 285), and the powers and duties of the treasurer vested in the borough collector.

It appears from the facts submitted that, after the election of Scott as treasurer, he presented the bond required by the charter to common council for its approval; that this bond was approved and accepted by council, and that ho was sworn into office as treasurer. It is apparent, therefore, that the real object of this writ is to test the right of Scott to hold the office into which he has been inducted, although he is not a party to the proceeding.

It is settled by repeated decisions that certiorari is not the proper remedy for contesting the legality of an incumbent’s title to a public office, and that, where the appointee has entered upon the office, the only method by which to test his right to continue to occupy .it is by an information against him in the nature of a quo warranto. Haines v. Freeholders of Camden, 18 Vroom 454; Simon v. Hoboken, 23 Id. 367; Bilderback v. Freeholders of Salem, 34 Id. 55.

The motive which prompted the institution of this proceeding, as stated by counsel for both parties, was the desire to obtain .a decision from this court whether, under existing laws, Washington is a borough, or a town, and, if a borough, whether it is governed by its original charter or by the General Borough law of 1897. In order that such a decision may be obtained, all objections to the proceedings, both in form and in substance, have been waived by the parties by a stipulation in writing. This stipulation, however, will not-justify the court in deciding the question actually raised — that is, the right of Scott to hold his office as borough treasurer. He is neither a party to the record nor to the stipulation, and he has a right to be heard and to be afforded an opportunity to defend his title before it is adjudicated upon.

The certiorari must be dismissed.