Dunham v. Bright

• Decision Date: 03 April 1914
• Citation: 90 A. 255,86 N.J.L. 391
• Parties: DUNHAM et al. v. BRIGHT et al.
• Court: New Jersey Supreme Court

90 A. 255

86 N.J.L. 391

DUNHAM et al.

v. BRIGHT et al.

Supreme Court of New Jersey.

April 3, 1914.

(Syllabus by the Court.)

Quo warranto by Harry S. Dunham and others against William H. Bright and others. Judgment for defendants on demurrer, with leave to relators to apply for permission to amend.

Argued June term, 1913, before GUMMERE, C. J., and PARKER and KALISCH, JJ.

Harrison H. Voorhees, of Camden, for relators. Lewis Starr, of Camden, for defendants.

GUMMERE, C. J. The relators seek, by this proceeding, to oust the defendants, the present acting members of the board of education of the city of Wildwood, and to obtain an adjudication by this court that they and not the defendants are the de jure members of that board. The information avers that the defendants were respectively appointed to the offices they now hold under and by virtue of an amendment to the general school law which was approved April 22, 1911; and that this amendment has already been declared unconstitutional by this court. Upon these facts they contend that the holding by the defendants of the offices to which they were thus appointed is without warrant of law. The relators further aver that on the 14th day of January, 1913, they were each of them duly appointed as members of the board of education of Wildwood by the mayor of that city pursuant to authority conferred upon him for that purpose by a supplement to the general school law approved April 2, 1912; that their respective appointments were duly approved by the commissioners of the city; and that they thereafter duly qualified and organized as the board of education thereof. On the facts thus set out the relators claim that they are entitled to a judgment of ouster against the defendants.

The defendants demur to the information: First, because it does not appear from anything contained therein that the city of Wildwood is embraced within the class of municipalities to which the supplement of 1912 applies; and, second, because, as they say, this supplement violates constitutional provisions and Is null and void, and that consequently the appointment of the relators is without legal validity.

The supplement of 1912 (Pamph. Laws, p. 655) is made applicable, by the first section thereof, to every city school district except where the provisions of article 7 of the general school law (4 Comp. St. 1910, pp. 4748-4762, § § 77-105e) has been or shall be accepted as permitted by section 244 of that act (4 Comp. St. 1910, p. 4806), and to every township, incorporated town, or borough school district in which the provisions of article 6 of the general school law have been or shall be accepted as permitted by section 243 of that act. The supplement provides for the abolition of all boards of education existing in any school district included in the class to which the legislation is applicable, and the creation of new boards in their place.

Articles 6 and 7 of the general school law, together, provide educational systems embracing every school district in the state; the system provided by article 6 primarily being applicable to city school districts, while that provided by article 7 applies primarily to township, incorporated town, and borough school districts. Section 244 of the act, however, permits any city school district to adopt the educational system provided by article 7, and section 243 permits any township, incorporated town, or borough school district to adopt that provided by article 6 (4 Comp. St. 1910, pp. 4735-4747, § § 38-76). The supplement of 1912 applies to all school districts, whether city, township, incorporated town, or borough, in which the educational system provided by article 6 of the general act prevails, but not to those which are being operated under the system provided by article 7.

Whether or not, therefore, the school district of the city of Wildwood is within the class to which the supplement applies, depends upon whether or not it has taken advantage of the legislative permission granted by section 244 of the general act, and adopted the educational system provided by article 7. If it has, then the action of...