State v. Common Council of City of Trenton

• Decision Date: 05 November 1892
• Citation: 25 A. 113,55 N.J.L. 72
• Parties: STATE ex rel. BENNETT v. COMMON COUNCIL OF CITY OF TRENTON.
• Court: New Jersey Supreme Court

25 A. 113

55 N.J.L. 72

STATE ex rel. BENNETT

v. COMMON COUNCIL OF CITY OF TRENTON.

Supreme Court of New Jersey.

Nov. 5, 1892.

(Syllabus by the Court.)

Application by the state on relation of Henry J. Bennett for a writ of mandamus to compel the common council of the city of Trenton to admit relator as a member. Writ granted.

The other facts fully appear in the following statement by Garrison, J.: .

The legislature of the state of New Jersey enacted the following law, which was approved February 18, 1892:

"(1) Be it enacted by the senate and general assembly of the state of New Jersey, that in all cities of the second class in this state in which there now are by law three members of common council, board of aldermen, or other governing body in and for each of the wards of such cities, hereafter the common council, board of aldermen, or other governing body of all such cities shall consist of two members in and for each of the wards of such cities, and each of the wards of such cities snail, at the annual city election of such cities, as hereinafter provided in this act, elect one person as a member of the common council, board of aldermen, or other governing body of such cities, who shall hold such office for a term of two years: provided, however, that the members of the present common council, board of aldermen, or other governing body of all such cities shall be and continue as members thereof for the term for which they were severally elected.

"(2) And beitenacted, that in every city of the second class in this state where there now are by law three members of the common council, board of aldermen, or other governing body in and for each of the wards of any such city, elected for the term of three years each, upon the expiration of the term of office of every member of the common council, board of aldermen, or other governing body in every such city which occurs next after the passage of this act, the office, as well as the term of office, of every such retiring member shall cease, determine, and end, and then and from thenceforth the common council, board of aldermen, or other governing body of every such city of the second class in this state shall consist of two members from each of the wards of such cities.

"(3) And be it enacted, that in all cities of the second class in this state where the office, as well as the term of office, of certain members of the common council, board of aldermen, or other governing body of such cities shall cease, determine, and end during the year one thousand eight hundred and ninety-two, according to the provisions of the last preceding section of this act, there shall not be any election held in any of the wards of such cities for members of the common council, board of aldermen, or other governing body of such cities until the city elections in such cities which shall occur in the year one thousand eight hundred and ninety-three, at which lastmentioned and all succeeding annual city elections in such cities there shall be elected in each of the wards of such cities one person as a member of the common council, board of aldermen, or other governing body of such cities, who shall hold such office for the terra of two years.

"(4) And be it enacted, that all acts and parts of acts, general, special, public, or local, inconsistent with the provisions of this act, be, and the same are hereby, repealed.

"(5) And be it enacted, that this act shall take effect immediately.

"Approved February 18, 1892."

Notwithstanding the prohibition contained in the third section of this act, one of the political parties placed the relator in nomination for city councilman, to be voted for at the annual charter election of the city of Trenton held on the 12th day of April, 1892. The canvass of the official ballots cast at said election showed the relator to be elected to the office of city councilman, if any election to that office might lawfully be held in view of the provisions of the statute above cited. A mandamus is asked for to compel city council to admit the relator to membership.

Argued June term, 1892, before Van Syckei., Magie, and Garrison, JJ.

J. Rellstab and J. R. Emery, for relator.

E. R. Walker and G. D. W. Vroom, for defendant.

GARRISON, J. (alter stating the facts.)

The contest in this case is not over the right to the possession of an office; it is over the existence of the office itself. No one claims the office as against the relator. The contention here is that no person could lawfully be elected to said office, and that, therefore, the relator is not entitled to enter. The case is therefore not one...