State v. O'Connor

• Decision Date: 11 November 1891
• Citation: 22 A. 1091,54 N.J.L. 36
• Parties: STATE ex rel. PIERSON v. O'CONNOR.
• Court: New Jersey Supreme Court

22 A. 1091

54 N.J.L. 36

STATE ex rel. PIERSON

v. O'CONNOR.

Supreme Court of New Jersey.

Nov. 11, 1891.

Quo warranto. On demurrer to information.

Argued at the June term, 1891, before BEASILEY, C. J., and VAN SYCKEL, KNAPP, and GARRISON, JJ.

J. Frank Fort, for relator.

F. W. Stevens, for defendant.

KNAPP, J. The relator was appointed to and served in the office of clerk of the first district court in the city of Newark. When the judge who appointed him went out of office, and was succeeded by the present incumbent, the defendant was chosen by the present judge of that court to the office of clerk, and is, after due installment, performing its duties. The act constituting district courts in the city of Newark (P. L. 1873, p. 246) provides that "the clerk of each of said courts shall be appointed by the judge thereof, and shall hold his office until the appointment of his successor." The appointment of the defendant was by legal authority, if the provision recited was in force at the time of his appointment. The relator is "an honorably discharged Union soldier, having served in the war of the Rebellion," and because of that fact, and of the legislation in the state respecting persons so conditioned, it is claimed in his behalf that the tenure of office under his appointment was extended, and that the power of the judge to make a successive appointment against the relator's will was limited in its exercise until the relator for good cause, and after trial, should be adjudged unfit for the office. In other words, that the enactments referred to had changed his term into a holding during good behavior. Three statutes on the subject referred to have been enacted by the legislature under substantially the same title. The first was passed March 6, 1888, and is entitled "An act in regard to honorably discharged Union soldiers." P. L. p. 135. The second was passed April 9, 1889, and entitled "An act in regard to honorably discharged Union soldiers and sailors holding public office or position." Id. p. 231. The first section of this act is in these words: "No person holding or hereafter holding a public office or position under the government of any city or county of this state whose term of office is not fixed by law, 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, but such per son shall hold his office during good behavior, and shall not be removable for political or partisan reasons." The last of these acts bears date March 9, 1891, and enacts that "no person now holding an appointive position in any city or county of this state, and receiving a salary from such city or county, who is an honorably discharged soldier or sailor, having served in the war of the Rebellion, shall be removed from such position except for cause, "etc. The claim of the relator set up in the information must rest upon the force and validity of the enactments just recited. The act of 1888 needs no further reference, except to say that the entire subject embraced in its provisions was covered and enlarged by the enactment of 1889, which was in substitution of the former, and contained a general clause of repealer. The question, then, to be sol ved, is whether the relator is secured from displacement in office by the provisions of the two later enactments, or either of them. By the terms of the act of 1889 the class of persons therein described are secured against removal, without just cause, from any office or position held by them under the government of any city or county except where the term of official holding is fixed bylaw. This provision certainly embraces any office or appointive position of an official quality, not limited in its term, which the governing agencies of the municipality have by charter or general law authority to fill, and it may, and probably does, embrace all offices and official positions unlimited in tenure, regardless of the method of appointment, that are designed as agencies in the government of the designated municipalities. But can it be successfully contended that within the words of the act, under any construction that can possibly be given to them, offices of a judicial establishment like that of a district court can be included? Can the district court in any...