King v. Smith

• Decision Date: 04 March 1918
• Docket Number: No. 102.,102.
• Citation: 91 N.J.Law 648,103 A. 191
• Parties: KING v. SMITH.
• Court: New Jersey Supreme Court

103 A. 191

91 N.J.Law 648

KING

v. SMITH.

No. 102.

Court of Errors and Appeals of New Jersey.

March 4, 1918.

(Syllabus by the Court.)

Appeal from Circuit Court, Morris County.

Information in the nature of quo warranto by the State, on relation of William E. King, against Frederick S. Smith. Judgment of ouster, and respondent appeals. Affirmed.

Charles A. Rathbun, of Morristown, for appellant. King & Vogt, of Morristown, for appellee.

MINTURN, J. While the relator was filling the office of county engineer for a term of five years, under an appointment by the board of chosen freeholders, made on January, 1, 1913, the respondent, on January 1, 1916, was appointed by the board in his place. The relator by information in the nature of quo warranto, attacks this appointment as contrary to law. The circuit court determined that the appointment was illegally made, and awarded judgment of ouster against the respondent.

The appeal presents the question whether the circuit court was correct in its construction of the legislation invoked. We think it was. The act of 1903, which provided "for the permanent improvement of public roads in this state" (P. L. 1903, c.97), in its twelfth section provides that "after the first road shall have been constructed under this act" it shall be the duty of the freeholders to appoint a county supervisor for the term of three years. In 1905 the Legislature revised the existing legislation. P. L. 1905, c. 58. The twelfth section of the 1903 act was made the eleventh section of the revised act, with the addition of the word "county" before "road" in the language quoted. In 1909 an act was passed (P. L. 1909, p. 316) amending the 1905 act, providing in its eleventh section that "after the first county road shall have been constructed under this act" a competent person should be appointed by the board as a county engineer for a term of three years. In 1912 another revision of this legislation took place (P. L. 1912, c. 395), whereby section 11 of the previous act was made the twelfth section of the revised act. The only other change of substance made in the section was the substitution of a term of five years for the appointee as county engineer.

The first county road referred to in this legislation was duly constructed in the year 1910, and the only barrier to the appointment of a county engineer thereafter was thus removed. The appointment of the relator on January 1, 1913, therefore harmonized with the spirit and letter of this legislation. The inquiry thus presented is whether a construction should be given to this legislation which would impart to the twelfth section of the revision of 1912, a meaning that would give to it the status of a distinct, independent, and separate act, in no wise correlated to the previous enactments, which it was designed to revise, as was the case in Roche v. Jersey City, 40 N. J. Law, 257, and Haynes v. Cape May, ...