Convery v. Conger

• Decision Date: 30 June 1891
• Citation: 24 A. 1002,53 N.J.L. 658
• Parties: CONVERY v. CONGER.
• Court: New Jersey Supreme Court

24 A. 1002

53 N.J.L. 658

CONVERY

v. CONGER.

Court of Errors and Appeals of New Jersey.

June Term, 1891.

Error to supreme court.

Petition of John H. Conger, contestant, against Patrick Convery, incumbent, to determine who is entitled to the office of clerk of Middlesex county.Contestant had judgment, which was affirmed by the supreme court, (22 Atl. Rep. 43,) and defendant brings error.Reversed.For further statement of facts, see20 Atl. Rep. 166, and 22 Atl. Rep. 43, 549.

Robert Admin and Allan L. McDermott, for plaintiff in error.

Alan H. Strong and Abraham V. Schenck, for defendant in error.

PER CURIAM.Three questions were presented and decided in this caseFirst, whether the statute(Revision, p. 355, § 100 et seq.) invested the circuit court with the jurisdiction it assumed to exercise; second, whether the judge of the circuit court erred in permitting one Louis Weil to give his opinion, as an expert, upon the question whether certain ballot-box machines made the marks which appeared upon ballots produced in court; and, third, whether the judge erred in directing that the ballot boxes and ballots, which were called for by the petitioner and examined and testified about in the case, should be considered as in evidence upon the part of the petitioner.

The first of these questions, upon a case certified from the circuit court, after testimony upon the trial had been closed, was decided by the supreme court in the affirmative, (52 N. J. Law, 417, 20 Atl. Rep. 166;) and the second and third questions were decided by the same court, upon error assigned on exceptions taken in the circuit, in the negative, (53 N. J. Law, 468, 22 Atl. Rep. 43,549,) the chief justice dissenting.The majority vote in this court upon each question is induced by the reasons stated in the opinions of the chief justice in the supreme court.

The Chancellor, (dissenting.) I feel constrained to shortly state my reasons for dissenting from the conclusion of the majority of the court upon the first, and, as I deem it, the most important, question submitted in this case.The election in dispute was had on the 5th of November, 1889.On the 12th of the same month this suit was instituted in the circuit court of Middlesex county, and, on the 9th of June, 1890, the judgment of that court, now reviewed, was rendered.That judgment is "that the contestant, John H. Conger, was duly elected to the office of clerk of said county of Middlesex at the election held in said county on the 5th day of November, A.D. 1889, and the certificate of election heretofore granted to said incumbent, Patrick Convery, is hereby annulled and declared to be void and of no effect.And * * * that an order be issued, signed by said judge and under the seal of this court, commanding the sheriff of said county to put the said contestant into possession of said office without delay, and deliver to him all books, papers, and effects belonging to the same, pursuant to the statute in such case made and provided."It is perceived that this judgment contemplates as existing facts that the votes cast at the election have been canvassed; that the election of the plaintiff in error has been duly certified, and, inferentially, that the previous term in the office in question has expired, for, until that term expires, the defendant in error cannot lawfully be put in possession of the office.It is the duty of the executive to "grant" a commission to one who has been elected to the office of county clerk.Const, art. 5, par. 6.He ascertains that person by the official return of the proper board of canvassers, which must be made within a specified time, in order that the public service may not suffer by a vacancy in office.Presuming, as the law warrants me, in absence of direct proof, that the governor has performed his duty, I assume that, at the rendition of the judgment reviewed, the plaintiff in error held a commission for the office in question from the executive, under the great seal of the state, and that in virtue of such commission, pursuant to his duty, he had actually taken possession of that office.Under this assumption, it is perceived that the judgment of the circuit court, in effect, contemplates the eviction from an office, recognized and adopted by the constitution, of one who holds a commission to that office, issued in pursuance of the provisions of the constitution.In other words, that it proposes the seizure of the office and the annihilation of the commission.In this state, sovereignty rests with the people.Their law, the constitution, prescribes the channels through which the sovereign power shall be exercised.In providing for the issuance of a commission by the executive, under the great seal of the state, this law expressly directs an act of sovereignty, and he who receives the commission holds under the sovereign.The constitution also establishes an agency by which the valid icy of title to office, and right to commission from the executive, may be inquired into.The machinery in England, by which the title to office was questioned, was the writ of quo warranto, the use of which was delegated by the crown to the court of king's bench, in which the sovereign was supposed to be personally...