Murphy v. Freeholders of Hudson

• Decision Date: 29 January 1918
• Citation: 102 A. 896,91 N.J.Law 40
• Parties: MURPHY. v. FREEHOLDERS OF HUDSON.
• Court: New Jersey Supreme Court

102 A. 896

91 N.J.Law 40

MURPHY.

v. FREEHOLDERS OF HUDSON.

Supreme Court of New Jersey.

Jan. 29, 1918.

Certiorari by James J. Murphy against the Freeholders of Hudson. Dismissed.

Argued November term, 1917, before Justice SWAYZE, sitting alone pursuant to the statute.

Gilbert Collins, of Jersey City, and James J. Murphy, of Jersey City, for prosecutor. John J. Fallon, of Hoboken, opposed.

SWAYZE, J. [1;2] The prosecutor seeks to set aside certain resolutions which stand in the way of his asserting his title to the office of counsel of Hudson county. He is still in possession of the office. The case is within the rule of Moore v. Borough of Bradley Beach, 87 N. J. Law, 391, 94 Atl. 316. Certiorari is a proper remedy unless the defendant's preliminary objection is valid that by reason of the failure of the prosecutor to take and file an official oath the office was vacant when the resolution was passed and his successor appointed. The prosecutor claims that he was elected county counsel in December, 1916. No oath of office was taken until January 7, 1918, an hour or two before his successor was elected. This oath was filed the same day with the clerk of the board of freeholders. The statutory provision as to the oath on which the defendant relies is the act of 1906 (P. L 13; C. S. 3491, par. 137).

A question arises as to the applicability of this statute to county offices. The act requires persons elected or appointed to any office in any town, township, borough, or other municipality to take an oath before entering on the duties of his office and to file it with the clerk of the municipality in which he shall have been elected or appointed. The specific question is whether the words "other municipality" were meant to include counties. That the word "municipality" sometimes includes counties has been decided. Union Stone Company v. Freeholders of Hudson, 71 N. J. Eq. 657, 65 Atl. 466; Herman & Grace v. Freeholders of Essex, 71 N. J. Eq. 541, 64 Atl. 742, affirmed on opinion 73 N. J. Eq. 415, 75 Atl. 1101. Both of these cases were cited recently by this court in considering the meaning of the words "municipal board or body." Burtis v. Haines, 102 Atl. 355.

I do not attribute much importance in this case to the argument that the words with which the words "other municipalities" are here associated denote municipal corporations of a different character from counties. The broad connotation of "towns" is sufficiently demonstrated by the decision in Van Riper v. Parson, 40 N. J. Law, 1, I am more impressed by the contention that the act of 1906 should be limited, because it was evidently intended for the relief of a situation that had arisen in boroughs. Smith v. Petty, 73 N. J. Law, 333, 63 Atl. 911. The force of this argument is lessened by the fact that, while the difficulty to be cured had arisen in boroughs, the relief was extended by name to towns and townships, and also to the more indefinite, or at any rate, wider, class, "other municipalities." This indicates that the Legtslature meant to pass an act that would afford relief wherever the difficulty arose. This perhaps explains the language of section 2; that is, "any of the municipalities mentioned...