Holloway v. Dickinson

• Decision Date: 24 February 1903
• Citation: 69 N.J.L. 72,54 A. 529
• Parties: HOLLOWAY v. DICKINSON et al.
• Court: New Jersey Supreme Court

54 A. 529

69 N.J.L. 72

HOLLOWAY

v. DICKINSON et al.

Supreme Court of New Jersey.

Feb. 24, 1903.

(Syllabus by the Court.)

Quo warranto, on the relation of J. Edward Holloway, against Frank Lee Dickinson and others, to determine title to office. Demurrer to information sustained.

Argued November term, 1902, before the CHIEF JUSTICE and VAN SYCKEL, FORT, and PITNEY, JJ.

Samuel W. Beldon, for relator.

E. G. C. Bleakly, for respondents.

PITNEY, J. This information was filed in the name of the Attorney General, at the relation of a resident and property owner, acting under leave of the court. Its purpose is to contest the right of the respondents to hold and execute the office of members of the board of education of the city of Camden. The proceeding is instituted under the act of March 17, 1795, relative to informations in the nature of a quo warranto. Gen. St. p. 2632. So far as this court is concerned, it is established by a long line of decisions that the scope of this act is confined to cases where there exists an office or franchise de facto or de jure, and where the controversy relates to the right of an individual or individuals to hold such office or franchise; that the act does not contemplate or authorize an attack to be made upon the existence of a public corporation by a private relator, and that such an attack must still be conducted by the Attorney General, acting as the representative of the people of the state. State v. Paterson & Hamburg Turnpike Co., 21 N.J.Law, 9; State ex rel. Mitchell v. Tolon, 33 N.J.Law, 195; Terhune v. Potts, 47 N.J.Law, 218; Stout v. Zulick, 48 N.J.Law, 599; Gibbs v. Somers Point, 49 N.J.Law, 515, 10 Atl. 377; Steelman v. Vickers, 51 N.J.Law, 180, 17 Atl. 153, 14 Am. St. Rep. 675; Richman v. Adams, 59 N.J.Law, 289, 36 Atl. 699; Hann v. Bedell, 67 N.J.Law, 148, 50 Atl. 364. In the first three cases the question arose on application made to the court for the exercise of its discretionary power to grant leave to file an information. But in Gibbs v. Somers Point such leave had been granted, and on demurrer to the information filed thereunder it was held that the act of 1795 did not permit an information against a corporation to be joined with an information at the instance of private relators against officers in the corporation. The joinder of the name of the Attorney General was treated as a matter of form, and it was held that the pleading in this form was illegal. And in Steelman v. Vickers, which was likewise decided on demurrer to an information, it appeared simply that the title of the incumbents of certain municipal offices was attacked on the ground that the public corporation had no legal existence. And, although the information did not assail the corporate life of the municipality itself, it was held that, to permit a private relator to oust one of the corporate officers on the ground suggested would be to permit that to be done indirectly which could not be done directly, and therefore the demurrer was sustained. The decision in Richman v. Adams is to the same effect.

In the present case, among the causes of demurrer specified is one to the effect that it is not competent for the people, through the relator, to question the respondents' title by quo warranto. If, therefore, it appears from the information that their title is questioned solely on the ground that the corporation of which they assume to be members has no legal existence, the demurrer must be sustained. Among the averments of the information are these: That prior to March 20, 1902, the public schools in the city of Camden were under the control and management of a board of education, known as the "Commission of Public Instruction," organized under the provisions of an act of the Legislature approved March 10, 1892, providing for the establishment of such a commission in certain cities (Laws 1892, p. 82; Gen. St. 1899, p. 3096); and that since the 26th day of March, 1902, there has existed and now exists in the city of Camden a corporation known as the "Board of Education of the City of Camden," created and established under and by virtue of "An act to establish a system of public instruction," approved March 26, 1902 (Laws 1902, p. 69). The information avers that the board appointed under the act of March 10, 1892, is the proper board of education of the city of Camden. It nowhere avers in terms that the respondents claim title to membership in that board; nor is such an inference to be derived from the facts averred in the information, unless the force of the act of 1902 is merely to change the personnel of the board of education, and not to establish a new corporate body in place of the former one. The title claimed by the respondents will appear from what follows.

By "An act to establish a system of public instruction," approved March 23, 1900 (Laws 1900, p. 192) §§ 45, 46, and by an amendatory act approved March 21, 1901 (Laws 1901, p. 222), it was provided that in each city, incorporated town, borough, township, or other municipality divided into wards it should be referred to the people to determine whether their board of education should be selected by appointment of the mayor or other chief executive officer, or should be chosen by vote of the people. By section 85 of the act of 1900 it was provided that in municipalities not divided into wards the board of education was to be elected at the annual school meeting. The information avers that in the city of Camden in the year 1900, under the provisions of the general act of that year just referred to, the question of acceptance of the provisions of section 46 of that act was submitted to the voters of the city, and was determined in favor of the creation of an elective school board; and that at the general election held in November, 1901, the respondents were elected members of the board of education, to take office July 1, 1902. Shortly thereafter the Court of Errors and Appeals decided the act of 1900 to be unconstitutional in toto by reason of its discrimination between municipalities that are divided into wards and those that are not so divided. Lewis v. Jersey City, 66 N.J.Law, 582, 50 Atl. 346. Thereafter the Legislature enacted another "Act to establish a system of public instruction" (Laws 1902, p. 69), which was approved March 26, 1902, and took effect immediately. In this act sections 42 to 80, inclusive, are grouped under the title, "Art. VI. Boards of Education in City School Districts." These sections provide, in effect, that in school districts located within any city there may be a submission to the qualified voters of the question whether the members of the board of education shall be elected by the people or shall be appointed by the mayor or other chief executive officer. Whichever method is adopted,...