MacFall v. Mayor

• Decision Date: 23 February 1904
• Citation: 70 N.J.L. 518,57 A. 136
• Parties: MacFALL v. MAYOR, ETC., OF TOWN OF DOVER.
• Court: New Jersey Supreme Court

57 A. 136

70 N.J.L. 518

MacFALL

v. MAYOR, ETC., OF TOWN OF DOVER.

Supreme Court of New Jersey.

Feb. 23, 1904.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of Ailing M. MacFall, against the mayor, recorder, aldermen, and common council of the town of Dover, to review a resolution adopted by such council. Judgment suspended.

Argued November term, 1903, before FORT and PITNEY, JJ.

Willard W. Cutler, for prosecutor.

Benj. W. Ellicott and John B. Vreeland, for defendant.

PITNEY, J. This writ of certiorari brings before us a resolution adopted by the common council of the town of Dover on May 11, 1903, declaring the offices of town clerk, town treasurer, collector of taxes, and assessor to be vacant by reason of expiration of their terms. The prosecutor, who prior to that date had been acting as collector, assorts that, by force of one or both of two statutes (P. L. 1896, p. 55; P. L. 1900, p. 480), he was entitled to a tenure of office that had not expired at the date of the resolution. The depositions taken by leave of the court disclose the following situation: On May 13, 1901, and again on May 11, 1902, the prosecutor was duly appointed by the common council to the office of collector. On each occasion he qualified by giving bond and taking the oath of office, and proceeded to perform the duties of the office during the ensuing year. As between him and the common council, no term was ever fixed or specified, during which he should continue to hold the office. Section 7 of the charter of Dover (P. L. 1869, p. 1105) provides that the collector, and also the town clerk, treasurer, assessor, and other subordinate officers, shall hold their offices during the pleasure of the common council. By section 3, members of the council hold office for two years; one-half of the members being chosen by the people at each annual municipal election, which occurs on the first Monday of May. Each alternate year a mayor is elected, to hold office for two years. The evidence shows that the custom has been for the council, shortly after each annual election, to choose their subordinate officers, presumably to hold office during the pleasure of the council. It was pursuant to this custom that the prosecutor was appointed as collector in 1901 nnd 1902. On May 11, 1903, shortly after the annual charter election, the council met according to custom, swore in new members and a new mayor, and proceeded to organize by choosing a town clerk and other subordinate officers. Pending this business, the tenure of office acts above referred to were brought to the attention of council?for the first time, so far as appears. Some discussion ensued, as the result of which a resolution was offered, and unanimously adopted, declaring the offices of clerk, treasurer, collector, and assessor vacant, their terms having expired. This is the resolution now under review. Shortly after its adoption, and at the same meeting, one Francis H. Tippett was unanimously chosen as collector in the place of the prosecutor. At a council meeting held one week later, Tippett's official bond was approved and ordered placed on file. Beyond this, there is nothing in the case to show that Tippett has been inducted into office. Neither is there anything to show that since Tippett's election the prosecutor has performed any official act as collector. Tippett is not named as a party in the present proceeding, and has had no opportunity to be heard.

So far as the prosecutor is concerned, the resolution declaring the offices vacant, and the action of council in electing Tippett to fill the office claimed by the prosecutor, were parts of one and the same proceeding. It is only because the resolution was followed by the election that the prosecutor is aggrieved. The attack upon the resolution is but a step in the attack upon Tippett's title to the office. For the trial of controversies between rival claimants to office, quo warranto, and not certiorari, is the proper remedy. If it appeared that Tippett had actually been inducted into office, it is well settled that for this reason alone the certiorari should be dismissed. Clayton v. Freeholders of Hudson. 60 N. J. Law, 364, 37...