45 N.J.L. 189 | N.J. | 1883
The opinion of the court was delivered by
The relator, it is admitted in this record, was duly appointed to the office of keeper of the jail authorized by a special act to be erected and maintained in the county of Hudson, and his complaint is, that having the right to continue in that position until his official successor should have been legally appointed, the respondent ousted him under the pretence of an appointment to the post by the board of freeholders whose term expired on the 2d day of May, 1882. The information shows that the relator’s office did not terminate, so as to enable his successor to be chosen, until the 4th day of September, 1882, and it therefore appears that the respondent holds office by virtue of the authority of an outgoing board of freeholders, who undertook to fill an office that did not become vacant during the term of its own official life. Such a course was in direct opposition to the legal rule upon that subject as propounded by this court in the case of Haight v. Love, 10 Vroom 14, 476. And it seems to me that the defence of this conduct on the part of this corporate body is of the flimsiest consistence. It is to the effect that the board which put the respondent into office had the right to hold over until a new board had been legally chosen, and that no such board has as yet been constituted. It is not pretended that this old board did actually continue in possession of its office until the term of the relator had expired; but it is asserted that in law it had the right so to do, on the ground that the new board elected to succeed it in the spring of 1882 had not been chosen from legally constituted voting districts. It is not necessary to explain the situation of the statutes from which the objection thus hinted at has arisen, for it is enough
The principal argument addressed to the court in behalf of the respondent; however, was in support of the proposition that the office here in question did not belong to the class that, upon legal principles, is within the protection of a quo warranto, or of an information in the nature of such remedy. The assumption underlying this course of reasoning was that the jailer of the work-house on the county farm, in the county of Hudson, is not a public officer, but is the mere.servant of the chosen freeholders. But this assumption does not appear
By another clause the jailer, it is declared, is “ to be master of the said work-house, and, subject to the regulations of the said board, shall have the charge and custody of the person or persons sentenced there to work and labor.” A power is also given to him to punish refractory prisoners.
From these citations it will be perceived that the office in question is substantially one well known to the common law, for this officer is a keeper of a common jail. The act, in terms, says that with respect to the custody and treatment and maintenance of prisoners, both he and the chosen freeholders are to be subject to the same Taws and regulations to which sheriffs and their jailers are subject. Every power, every responsibility and every function of the office is of a public character, and it is a part of the machinery by which
When we refer to the law on this subject, we find, indeed, some looseness and- contrariety in the decisions, but none even of the most unreliable of such cases, and which, it is safe to say, would not be followed at this day, lend any color to the contention under consideration. The proceeding by information in the nature of quo warranto, has, in modern practice, superseded the ancient writ of quo warranto, and some doubts seem to have arisen in the minds of the English judges whether the substitute was not to be strictly confined to the uses and objects of the original procedure, and as the latter could be brought only to protect from invasion offices and franchises derived from the crown, the former was sometimes supposed not to be applicable to other purposes. But even under the stringency of this principle the great weight of authority was in favor of the applicability of the remedy
But the final exposition of this subject by the English courts is to be found in the authoritative case of Darley v. Reg., 12 Cl. & Fin. 530. The case is one of great consideration, as it was twice argued, and on the latter occasion in the presence of the judges, the only question debated being whether the office of treasurer of the public money of the county of the city of Dublin was an office for which an information in the nature of a quo warranto would lie. The conclusion was that the remedy was appropriate to the case,’and Chief Justice Tindall, at the conclusion of his opinion, thus carefully defines the general rule on the subject. He says: “And after a consideration of all the cases and diota on this subject, the result appears to be that this proceeding by information in the nature of a quo warranto will lie for usurping any office, whether created by charter alone or by the crown, with the consent of parliament, provided the office be of a public nature, and a substantive office, not merely the function or employment of a deputy or servant held at the will and pleasure of others.”
It is plain that this definition, which is the reasonable result from common law rules, will vindicate the use of this procedure in the present case, for the office now in question is a substantive office, having an independent existence, being
But there is another consideration affecting this topic which appears to have.escaped the attention of counsel, that is, (he regulation of this procedure established by the statutory law of this state. By the act entitled “An act for rendering the proceedings upon information in the nature of a quo warranto more speedy and effectual,” (Rev., p. 905,) the remedy was intended to be pu¿ upon a different footing from that which it occúpied at common law, as such law was then, in some cases, expounded by the courts. It may be that Judge Paterson, in the exercise of his usual sagacity, was minded, in framing this statute, to remove all doubts and difficulties which existed with respect to the scope and office of this proceeding by information. The act drawn by him is, in the main, a transcript of the statute of 9 Anne, o. 20, but that law is expressly restricted to the offices of mayors and other officers of cities and boroughs, and in this important particular the New Jersey statute is not a copy of it. Instead of giving the remedy in a limited class of cases, our act, in this respect^ is entirely unrestricted, its language being this :• “ That in case any person or persons shall usurp, intrude into or unlawfully hold or execute any office or franchise within this state, it shall and' may be lawful to and for the attorney-general, with the leave of the Supreme Court, to exhibit one or more information or informations,” &c.
If there were, therefore, any doubt upon common law rules in regard to the present topic of discussion., this statutory language, establishing so plainly a rule on the subject, would at once dispel it, for in view of • this legislative regulation it would be out of the question for this court to say that the only means by which a usurper of the office of the keeper of a public jail of a county can be ousted is by a breach of the peace. In the case in hand, the proper mode of proceeding is by information.
It remains to consider what disposition should be made of the' present case. Should the judgment be final on this de
It is the settled law of this state that usurpers of public offices may, if they receive the emoluments, retain them as their own property, and it is obvious that these profitable usurpations will be -numerous unless the ’tendency to such misconduct shall be restrained by the repressive hand of this court. There is apparently but little, if anything, in the facts of this case, as they are presented to the court, to induce a belief that this usurpation was the result of a mistaken view of the law on the part of the respondent, but before pronouncing judgment, his counsel, if he should desire it, will be heard upon the subject.