Donohue v. Campbell
| Decision Date | 18 June 1923 |
| Docket Number | No. 75.,75. |
| Citation | 121 A. 700 |
| Parties | DONOHUE v. CAMPBELL. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Appeal from Supreme Court,
Proceedings in the nature of quo warranto by Lucius Donohue against Palmer Campbell. From a judgment for relator, the respondent appeals. Reversed.
Wall, Haight, Carey & Hartpence, of Jersey City, for appellant.
Warren Dixon, of Jersey City, for respondent.
WALKER, Ch. This was an information in the nature of a quo warranto by Donohue, relator, against Campbell, respondent. The latter had for some time been a member of the Hudson county park commission, and his term expired at midnight on June 17, 1922. On May 15, 1922, Judges Blair and McCarthy of the Hudson county court of common pleas signed a paper which recited that by virtue of the power vested in them by chapter 277, Laws of 1902, entitled "An act to establish public parks in certain counties of this state and to regulate the same," they, John A. Blair, Richard Doherty, and James W. McCarthy, judges of the court of common pleas, etc., did thereby appoint Palmer Campbell, of Hoboken, etc., a member of the board of commissioners known as the Hudson county park commission; that the said Campbell was thereby appointed to fill a vacancy caused by the expiration of his own term, and he was thereby appointed to serve as such member for a term of four years commencing June 18, 1922, and this, as stated, was signed by Judges Blair and McCarthy. Thereupon this paper was sent to Judge Doherty, who, however, did not sign it, nor did he return it, but on May 23, 1922, he signed a paper which recited that by virtue of the power vested in him by the act of 1902 above mentioned he, Richard Doherty, Judge of the court of common pleas, etc., did thereby appoint Lucius F. Donohue, of Bayonne, etc., a member of the board of commissioners known as the Hudson county park commission; that the said Donohue was thereby appointed to fill a vacancy caused by the expiration of the term of Palmer Campbell; and he was thereby appointed to serve as such member for a term of four years commencing June 18, 1922, and this was signed by Judge Doherty.
On May 23, 1922, the relator filed the certificate of his appointment with the county clerk, and the respondent filed a carbon copy of the certificate of his appointment, which copy had also been signed by Judges Blair and McCarthy; and the relator and respondent took oaths as such commissioner and tiled the same with the county clerk. As to who first filed his certificate of appointment and oath with the county clerk, and as to whether or not the oaths taken by either or both parties were sufficient in law, it is unnecessary for us to decide, in view of the disposition presently to be made of this case.
The issue submitted to the jury was as to whose appointment was made first, whether that of the relator, Donohue, or that of the respondent, Campbell. A race for priority in filing the appointments in the county clerk's office could not settle the title to the office; only a prior valid appointment would do that. Such an appointment should, of course, be filed at or before the time the term began. The verdict was in favor of the relator and against the respondent, and the relator had judgment of ouster against the respondent, who has appealed to this court, and filed two grounds of appeal: (1) That the trial court refused to admit in evidence the paper (appointing Mr. Campbell) signed by Judges Blair and McCarthy on May 15th, and (2) that the trial court refused to direct a verdict for the respondent.
Now, as above stated, the theory upon which the case was tried and the issue upon which it was submitted to the jury was as to whose appointment was first made in point of time, that of the relator or that of the respondent, and upon that question the certificate signed by Judges Blair and McCarthy on May 15, 1922, marked Exhibit D-l for identification, was pertinent evidence for the respondent on the question submitted by the trial judge, but was excluded by him, and that was error. A case is to be submitted on evidence which would warrant a verdict on the theory on which it is tried. See Barnes v. Wallington & Co., 78 N. J. Law, 490, 492, 75 Atl. 973. And this requires the admission of testimony pertinent to such theory; such evidence being otherwise legal. A verdict cannot be supported upon a theory of the law contrary to that upon which the case was submitted to the jury. Queen v. Jennings, 93 N. J. Law, 353, 108 Atl. 379. Ergo, all evidence pertinent to that issue is admissible. This court, in reviewing the judgment of the Supreme Court, will not, as a general rule, consider any question not set up or argued in the court below. See Franklin v. Millville (N. J. Err. & App.) 119 Atl. 29. But it is the constant practice of appellate courts to notice and decide questions of jurisdiction and public policy without those questions having been raised below. See McMlchael v. Horay, 90 N. J. Law, 142, 100 Atl. 205.
While the exclusion of this exhibit alone is sufficient to reverse the judgment in this case on the narrow question of evidence, we have, nevertheless, chosen to put our decision also upon the "broad ground of public policy.
By chapter 277, Laws of 1902 (P. L. p. 811), entitled "An act to establish public parks in certain counties of this state and to regulate the same," it is provided in section 1 that in any county it shall be the duty of the judge of the court of common pleas sitting in said county to appoint four persons a board of park commissioners to be known as "the — county park commission," and at no time shall more than two commissioners under the act be of the same political faith, etc. And by chapter 48, Laws of 1918, p. 137, entitled "A supplement to an act entitled 'An act relating to the court of common pleas (Revision of 1900),'" it is provided in section 2 that, whenever there shall be three judges of the court of common pleas in any county, said judges sitting together, or either of them sitting alone, or each of them sitting separately at the same time, shall constitute and may hold the court of common pleas, the orphans' court, the court of quarter sessions, and the court of special session; and said judges, when sitting together, or alone, or separately at the same time, shall have and possess the same powers, authority, and jurisdiction as are now vested in the existing judges of said courts; whenever the said judges shall sit together the senior judge in service shall be the president judge of said court; and any power or authority now conferred by statute on the judge or judges of the court of common pleas in any proceeding or matter may be exercised by either of said judges. And by section 3 that all existing statutes relating to the court of common pleas, the orphans' court, court of quarter sessions, and court of special sessions shall apply to each of said courts when so held at the same time by said judges sitting separately, and the duties of the clerk, the sheriff, constables, and other officers shall be, etc.
At the time of the passage of the county park act in 1902 there was but one judge of the court of common pleas in the county of Hudson. At the time of the appointment of a park commissioner made by Judges Blair and McCarthy on the one hand and Judge Doherty on the other, there were three judges of that court in Hudson county, and the question is, Is either of those appointments valid, and, if so, which? We think that neither is. And this view sustains the trial judge's refusal to direct a verdict for respondent.
In the first place, the duty of the judges of the court of common pleas to appoint county park commissioners is not a judicial duty. This power committed to the judges is to them merely designatio personæ. The statute confers upon those officials no authority except such as is expressly prescribed. They are to determine the political affiliations of the appointees and make the appointments. This is the entire scope and extent of the power conferred, and it is manifestly nonjudicial. See In re Margarum, 55 N. J. Law, 12, 25 Atl. 702; also In re Prudential Ins. Co. of America, 82 N. J. Eq. 335, 88 Atl. 970.
We are of opinion that the Legislature could not possibly have had in contemplation such a situation as has arisen in this case, namely, a clash between the judges over an appointment of a park commissioner and an unseemly contention for possession of the office by the respective appointees.
Without the provisions of the act of 1918 ...
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