85 N.J.L. 487 | N.J. | 1914
The opinion of the court was delivered by
The controversy is over the office of assessor, in the city of Yew Brunswick, and the pertinent statute is the act of 1905 (Pamph. L., p. 75; Comp. Stat., p. 5163, pl. 151, &c.), providing in substance that in cities of a population between fifteen thousand and thirty-five thousand the council may appoint three assessors to hold office for three years from January 1st next preceding the date of their appointment and until their successors are appointed and qualify; vacancies for any cause to be filled for the unexpired
The facts as set up in the information and plea and admitted by the demurrer are that in April, 1905, assessors were, appointed under the above act for a term expiring January 1st, 1908; their successors were then appointed for a term expiring January 1st, 1911; that no new appointment was then made, and the old assessors continued to serve until January 8th, 1912, when the council declared a vacancy to exist and appointed relator, Mount, for a term of three years and assigned him to the first district; that he thereupon took the required oath and entered on his duties and continued to perform the same until January 1st, 1913, when council again declared a vacancy and appointed the respondent, Howell, fox the “term prescribed by law, and that he on the same day took the oath and entered on the performance of his duties as assessor, and continues to perform the same.”
Upon this state of facts we conclude that the relator is entitled to judgment of ouster. It is argued for respondent, first, that the appointment of Mount for a full term on January 8th, 1912, was entirely void because a year of the term had already elapsed and the appointment should have been for only the remaining tw» years. We think that, apart from other considerations, the appointment was .at least good until January 1st, 1914; but it is unnecessary to decide this, because the statute in express terms provides that appointees serve not only for three years but until their successors are appointed and qualify; and the appointments for unexpired terms are only in cases of a vacancy. But there is no vacancy where the council fails to act at the end of a three years’ term, for the assessors in office hold over by the express terms of the act until their successors are appointed and qualify. It follows, therefore, that the council in 1912 lawfully appointed assessors for a full three years’ term.
Next, it is argued that tire title of the act is defective as failing to express its object in a constitutional sense. It is
It is argued further that the grouping of cities between fifteen thousand and thirty-five thousand population creates an unconstitutional class. But Attorney-General v. McKelvey, supra, is only one of a. number of decisions which negative this proposition, so far as relates to acts apptying to the structure and machinery of government of cities, of which acts that under examination is clearly one.
Finally, it is urged that it appears in fact that relator is still iii office and therefore cannot bring quo warranto because he is not ousted or disturbed. The answer is that if there is only a partial intrusion quo warranto will lie; and where two persons each claim, as in this case, to be exercising in part at least, the duties of the same office, it is plain that one or the other is intruding. This was precisely the situation in State v. Rogers, 27 Vroom 480. It is true that in form the action was by the governor as relator against both claimants to the office of president of the senate; but the fourth section of the Quo Warranto act (Pamph. L. 1903, p. 375) enabling any citizen believing himself lawfully entitled to a municipal office to file as relator an information against any person “usurping, intruding into nr unlawfully holding or executing” such office, appears plainly to cover such a case as the present. Respondent says in his plea that he took the oath of office, entered upon the performance of his duties and is still performing them. We fail to see how he can say that and at the same time assert that the relator is in no legal 'sense ousted.
Let judgment be entered for the relator, with costs.