Haack v. Ranieri
Citation | 83 N.J.Super. 526,200 A.2d 522 |
Decision Date | 20 April 1964 |
Docket Number | No. L--6209,L--6209 |
Parties | Loretta HAACK, Plaintiff, v. Rudolph RANIERI, Defendant. |
Court | Superior Court of New Jersey |
On May 14, 1963 defendant defeated plaintiff and the incumbent councilwoman, Loretta Haack, in the councilmanic elections in the first ward of Hoboken. That election was never contested under N.J.S.A. 19:29--1 et seq. Ranieri assumed office on July 1, 1963 and has acted as councilman from the first ward until the present time.
This proceeding was brought by Mrs. Haack in November 1963, more than six months after the election. The complaint Defendant, on the other hand, contends that he was continuously a legal resident of Hoboken from 1952 to the present time, residing at 129 Washington Street, Hoboken, from September 1952 until January 1963, when he moved to 100 Bloomfield Street in that city. In late June 1963 he moved into his present residence at 226 Hudson Street, Hoboken. Defendant further contends that even if the court finds he was not a legal resident of 129 Washington Street, his registration at 100 Bloomfield Street is, nevertheless, valid. He also contends that plaintiff is barred by the time limitations of R.R. 4:88--15 and by laches. He asserts, moreover, that plaintiff cannot show title to the office in herself and is thus without standing to bring the action under N.J.S. 2A:66--8, N.J.S.A. He predicates his attack on plaintiff's title to the office on the fact that she did not receive a plurality of the votes cast and that she abandoned any claim as a holdover officer when she surrendered the office to him without protest.
alleges that Ranieri, prior to February of 1963, improperly registered as a resident of 129 Washington Street, Hoboken, New Jersey, when in fact he actually resided at 16 Bond Place, Weehawken, New Jersey. Plaintiff contends that any transfer in registration based upon the improper initial registration is defective, which defect renders defendant ineligible for office. Plaintiff further alleges that from February 1963 until after the election defendant never acquired an actual domicile in Hoboken, although he purported to live at 100 Bloomfield Street, Hoboken.
There are two sections which govern proceedings in lieu of the former prerogative writ of Quo warranto. N.J.S. 2A:66--6, N.J.S.A. given the right to bring the action to anybody who under the former practice would have had the requisite interest to exhibit an information in the nature of a Quo warranto with leave of the court. This section now allows the bringing of an action as of right and dispenses with the Allocatur formerly The distinction between the two sections can be grasped from the discussion of their predecessor statutes (R.S. 2:84--1, R.S. 2:84--7) in McGuire v. DeMuro, 98 N.J.L. 684, 121 A. 739 (Sup.Ct.1923), and in the State ex rel. Williams v. Godfrey, 11 N.J.Misc. 283, 165 A. 724 (Sup.Ct.1933).
required from the court. N.J.S. 2A:66--8, N.J.S.A. allows a De jure claimant to an office to bring an action to oust a usurper. This, concededly, is the section under which Mrs. Haack is proceeding.
In the recent case of Demoura v. Newark, 74 N.J.Super. 49, 180 A.2d 513 (App.Div.1962), the court held that a proceeding in the nature of Quo warranto involving a municipal office or position must, under the former practice as well as now, be brought by a citizen and taxpayer of the city, unless he himself is a claimant to the office.
Mrs. Haack does not contend to represent the public, but she does claim title to the office held by defendant. Plaintiff, under N.J.S. 2A:66--8, N.J.S.A., must show title in herself before the court in this action can properly inquire by what authority defendant holds office, and plaintiff's failure to show such title is fatal to the action. Manahan v. Watts, 64 N.J.L. 465, 45 A. 813 (Sup.Ct.1900); Florey v. Lanning, 90 N.J.L. 12, 100 A. 183 (Sup.Ct.1917); McCarthy v. Walter, 108 N.J.L. 282, 156 A. 772 (E. & A. 1931); Toomey v. McCaffrey, 116 N.J.L. 364, 184 A. 835 (Sup.Ct.1936); Murphy v. Cuddy, 121 N.J.L. 209, 1 A.2d 758 (Sup.Ct.1938); McGlynn v. Grosso, 114 N.J.L. 540, 178 A. 86 (Sup.Ct.1935); Colton v. Kreutzinger,116 N.J.L. 456, 185 A. 18 (Sup.Ct.1936), affirmed 118 N.J.L. 183, 191 A. 878 (E. & A. 1937); Devlin v. Cooper, 124 N.J.L. 155, 11 A.2d 29 (Sup.Ct.1940), affirmed 125 N.J.L. 414, 15 A.2d 630 (E. & A. 1940); Morgan v. Mayor and Council of Borough of Roselle Park, 129 N.J.L. 233, 28 A.2d 620 (Sup.Ct.1942).
There is some authority to the contrary, holding that such a proceeding has a dual aspect and that the public interest could require a judgment of ouster where neither the relator nor the respondent was entitled to the office. Hawkins v. Cook, 62 N.J.L. 84, 40 A. 781 (Sup.Ct.1898); Anderson v. Myers However, this court is convinced that the correct rule requires that plaintiff show title in herself as a necessary condition precedent. This is borne out by recent decisions of our court. In Burke v. Kenny, 9 N.J.Super. 160, 75 A.2d 633 (App.Div.1950), the court said:
77 N.J.L. 186, 71 A. 139 (Sup.Ct.1908); Bullock v. Biggs, 78 N.J.L. 63, 73 A. 69 (Sup.Ct.1909); Dunham v. Bright, 85 N.J.L. 391, 90 A. 255 (Sup.Ct.1914); Bonynge v. Frank, 89 N.J.L. 239, 98 A. 456 (E. & A. 1916).
(9 N.J.Super. at p. 163, 75 A.2d at p. 634.)
See also Monte v. Milat, 17 N.J.Super. 260, 85 A.2d 822 (Law Div.1952), by Mr. Justice (then Judge) Proctor, to the same effect. A comprehensive development of our Quo warranto statutes can be found in 6 Newark L.Rev. 163 (1941).
Mrs. Haack claims title to the office on two theories: (a) as the qualified candidate with the next highest number of votes to those cast for the allegedly ineligible defendant, and (b) as a holdover officer whose successor allegedly never qualified.
The first ground of Mrs. Haack's claim is untenable. In an early but nevertheless well-reasoned opinion in Chandler v. Wartman, 6 N.J.L.J. 301 (Cir.Ct.1883), the court held that a minority candidate is not elected, whether his opponent be eligible or not. That was an election contest wherein the plaintiff claimed that defendant Wartman, who received the highest number of votes, was ineligible at the 'The general rule is that votes cast for a deceased, disqualified, or ineligible person, although ineffective to elect such a person to office are not to be treated as void or thrown away, but are to be counted in determining the result of the election as regards the other candidates * * *.
time of the election because of lack of citizenship. The court found that defendant was eligible, but it held, further, that even if plaintiff were correct in his assertions, the court could not declare him elected since he did not have the highest number of votes. This opinion is in keeping with the majority rule in other jurisdictions. The rule is set forth in Annotation, 'Elections--Dead or Disqualified Candidates,' 133 A.L.R. 319, 320--321, as follows:
* * * The result of its application in such cases is to render the election nugatory, and to prevent the election of the person receiving the next highest number of votes.'
The rationale of this Rule is further set out in the annotation at page 323, quoting from the case of Saunders v. Haynes, 13 Cal. 145 (Sup.Ct.1859):
New Jersey courts have used this approach in interpreting other election statutes. In Rose v. Parker, 91 N.J.L. 84, ...
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