State v. Boughner

• Decision Date: 08 June 1893
• Citation: 55 N.J.L. 380,26 A. 808
• Parties: STATE ex rel. TOWNSEND v. BOUGHNER.
• Court: New Jersey Supreme Court

26 A. 808

55 N.J.L. 380

STATE ex rel. TOWNSEND

v. BOUGHNER.

Supreme Court of New Jersey.

June 8, 1893.

Information by Isaac Townsend in nature of quo warranto, stating that relator was appointed superintendent of buildings in the city of Newark, July 1, 1881, and that he held the office without interruption until the 6th June, 1892, when respondent, Dennis H. Boughner, entered, etc., claiming under an appointment of the common council under date of May 6, 1892. Judgment for relator.

Argued at February term, 1893, before BEASLEY, C. J., and DIXON and REED, JJ.

J. E. Howell, for relator.

Wm. B. Guild, for demurrant.

BEASLEY, C. J. The prosecutor, Isaac Townsend. who is an honorably discharged Union soldier, having served in the War of the Rebellion, complains that he was removed from his office of superintendent of buildings in the city of Newark without due warrant of law. It appears from the information that the relator was appointed to the office in question by the common council of the city of Newark under section 21 of the city charter, which contains the following provision, viz.: "Every person who shall be appointed to any office under the provisions of this act shall be a resident and elector of said city, and shall continue in office until the office for which he shall be appointed shall be declared vacant, or until another person shall be appointed to succeed him, and shall enter upon the duties of Ills office." By the terms of this statutory regulation the class of officers here designated in general hold their stations at the will of the common council, and that body discharged, without crimination or a hearing, the prosecutor from his post, and appointed the respondent as his successor. That act is now challenged by this proceeding on the ground that the prosecutor, having been an honorably discharged Union soldier, is not subject to such supersession. This contention has its root in the act of April 9, 1889, (P. L. p. 231,) which declares that no person holding, or hereafter holding, a public office or position, under the government of any city of this state, whose term of office is nit fixed bylaw, and who receives a salary from the city or county, and who is an honorably discharged Union soldier or sailor having served in the War of the Rebellion, shall be removed from such office or position except for good cause shown, after hearing, and that such person shall hold his office during good behavior, and shall not be removed for...