Randolph v. City of Rahway

• Decision Date: 22 January 1930
• Citation: 148 A. 793
• Parties: RANDOLPH v. CITY OF RAHWAY et al.
• Court: New Jersey Supreme Court

148 A. 793

RANDOLPH

v. CITY OF RAHWAY et al.

Supreme Court of New Jersey.

Jan. 22, 1930.

(Syllabus by the Court.)

Certiorari by Edward S. F. Randolph against the City of Rahway, Borough of Garwood, and others. Decision in accordance with opinion.

See, also, 148 A. 795.

Argued before Justice CASE, sitting alone pursuant to the statute.

Martin P. O'Connor, of Elizabeth, and J. Edwars Ashmead, of Newark, for prosecutor.

Francis V. Dobbins, of Rahway, and Conover English, of Newark, for defendant Joint Meeting.

David Armstrong, of Rahway, for defendant City.

CASE, J. In November, 1928, the prosecutor, Edward S. F. Randolph, was a member of the city council of Westfield and was elected permanent chairman of the joint meeting of the said town of Westfield and eight other municipalities acting under an act of the Legislature entitled "An Act to authorize two or more municipalities in this state to jointly construct and maintain outlet or trunk sewers," approved March 15, 1899, and of the acts amendatory thereof and supplemental thereto (3 Comp. St. 1910, p. 3588, § 488 et seq., as amended). His term of office as a member of the city council of Westfield expired December 31, 1928, and he did not run for reelection. He continued, nevertheless, to act as permanent chairman of the joint meeting, and no question was raised as to his eligibility so to do until October, 1929. On October 24, 1929, the joint meeting passed a resolution declaring the office of chairman vacant and proceeded to elect Roger C. Aldrich to fill the alleged vacancy. A writ of certiorari was allowed, directing the municipalities and the joint meeting of said municipalities to certify the action of the joint meeting in declaring the office vacant and in electing Aldrich to fill the vacancy.

Counsel for the prosecutor submit in their brief that the only question involved is the legality of the action of the joint meeting in attempting to remove the prosecutor from an office in violation of its own organic law expressly providing that the permanent chairman shall hold his office until the final completion of the work contracted to be performed by the municipalities and shall be entitled to receive compensation from the beginning of his term until the completion of such public improvement so contracted for. Nevertheless, it is to be noted that the record required by the writ and returned in response thereto embraces, in addition to the resolution declaring the office vacant, the action of the joint meeting in electing Aldrich to fill the vacancy. To the extent of the issue thus created, and in the light of the proofs submitted, the controversy appears to partake of the nature of a contest for public office.

The fundamental question is the authority of the joint meeting to declare the office of permanent chairman vacant, but a preliminary question must first be considered, namely, whether the writ of certiorari can be resorted to by prosecutor for the purpose of determining that issue. An analysis of the decisions in this state discloses that two principles have been quite clearly adopted. One is that where a person is in possession of an office and the governing body unlawfully elects a successor and thereby threatens to disturb him in the enjoyment of his term, certiorari is the appropriate remedy to review such action, and the other is that where one claims right and title to an office from which he has been ousted and which is occupied by another, his remedy is by quo warranto. In Bradshaw v. City Council of Camden, 39 N. J. Law, 416, the leading case on the subject in this state, Mr. Justice Van Syckel said: "If the title of a claimant in possession of the office was to be tried, it would be necessary to resort to a quo warranto, but the relator in this case being in possession of the office, the proceedings taken by the common council, threatening to disturb him in the enjoyment of it, can be reviewed only by certiorari. The object of prosecuting a quo warranto, is to have one in possession adjudged guilty of usurpation. The plaintiff in this case sues for no such end; his only purpose is to remove from his way a proceeding which he apprehends may be used unlawfully to eject him." The same principle was upheld in Fitzgerald v. New Brunswick, 47 N. J. Law, 479, 1 A. 490, 54 Am. Rep. 182, affirmed 48 N. J. Law, 457, 8 A. 729, and by the recital of proofs given in the brief of counsel, particularly at page 471 of 48 N. J. Law, 8 A. 729, it appears that the prosecutors to whom relief was accorded under writ of certiorari had refused to surrender their office and bad acted, since the attempted removal, the same as before. Likewise in Moore v. Borough of Bradley Beach, 87 N. J. Law, 391, 94 A. 316, Murphy v. Freeholders of Hudson, 91 N. J. Law, 40, 102 A. 896, affirmed 92 N. J. Law, 244, 104 A. 304, and Spencer v. Middlesex County Tax Board, 95 N. J. Law, 5, 111 A. 640, the facts were that the respective prosecutors continued to hold their several offices, were apprehensive that the objectionable proceedings would be used to eject or disturb them in the tenure of office, and therefore desired to remove a proceeding which it was apparent would be unlawfully used for the purpose of ejecting the. then incumbent. In Hansen v. Costello, 126 A. 403, 404, 2 N. J. Misc. R. 961, it was held that "prosecutor has mistaken his remedy, which is by quo warranto and not certiorari. Where one claims the right and title to an office from which he has been ousted and which is occupied by another, the remedy is by quo warranto." See, also, Turtur v. Brokaw, 134 A. 747, 4 N. J. Misc. R. 870. Likewise in Seaman...