85 N.J.L. 617 | N.J. | 1914
The opinion of the court was delivered by
On the 15th day of April, 1913, an election was held in the city of Jersey City for the purpose of determining whether the commission form of government provided by chapter 221 of the laws of 1911, commonly known as the “Walsh act,” should be substituted in that
The second section of the “Walsh act” provides that upon the organizing of the commissioners elected under it the terms of all city officers, whether elective or appointive, shall immediately cease and determine. The fourth section of the act requires the board of commissioners after it is organized to appoint such officers as it may deem necessary for the proper conduct of the affairs of the city, and authorizes it to prescribe their powers and duties. Pursuant to the authority conferred by this latter provision the newly elected board of commissioners appointed the respondent, Michael I. Fagan, as one of the officers of the city, under the title of “city clerk,” and he shortly afterwards entered upon the duties of his office.
At the time of the election held for the purpose of determining whether or not the “Walsh act” should be adopted by Jersey City the relator, John H. Morris, was the incumbent of the office of city clerk of that municipality; an office created by, and the powers and duties of which were specified in the city charter. He seeks by the information filed in the present ease to oust the respondent from the office to which he was appointed b}'' the board of commissioners, and to have himself adjudged to be legally entitled to hold that office.
The judgment of the Supreme Court was in favor of the respondent.
The single ground upon which the relator bases his contention that he, and not the respondent, is entitled to the office which the latter holds is that the “Walsh act,” although
Assuming the fact to he as the relator contends, and that it is one of which the court, in a proceeding like the present will take cognizance, we fail to perceive that it has any hearing upon his claim to the office held by the respondent. That office, although the incumbent thereof is designated the city clerk, is an entirely different one from that which was held by the relator, under a similar designation, prior to the organization of the board of commissioners. As has already been pointed out the relator’s office was one the duties, powers and privileges of which were specifically provided by the Jersey City charter, while that now held by the respondent carries with it only those powers, privileges, obligations and duties which the board of commissioners see fit from time to time to impose upon the incumbent. Manifestly, therefore, the fact that the “Walsh act” failed of adoption at the special election could not operate to entitle the relator to an office to which he never had been appointed and which depended for its existence upon the adoption, by the voters of Jersey City, of the act which created it.
We might well leave the case without further discussion except for the fact that we might he considered to hold the view that it is open to a private relator in a quo warranto
The judgment under review will be affirmed.
For affirmance' — The Chancellor, Chief Justice, Thenctiard, Parker, Bergen, Minturn, Kalis ch, Bogert, Yredenburgh, Congdon, White, JJ. 11.
For reversal — None.