State v. Davis

• Decision Date: 11 October 1894
• Citation: 30 A. 184,57 N.J.l. 80
• Parties: STATE ex rel. DAVIS et al. v. DAVIS et al.
• Court: New Jersey Supreme Court

30 A. 184

57 N.J.l. 80

STATE ex rel. DAVIS et al.

v. DAVIS et al.

Supreme Court of New Jersey.

Oct. 11, 1894.

(Syllabus by the Court.)

Information in the nature of quo warranto by the state on relation of John B. Davis and others to test the right of William N. Davis and others to exercise the functions of a board of chosen freeholders of the county of Camden, N. J. Relators move to strike out respondents' plea. Motion sustained.

An information in the nature of a quo warranto was filed by certain persons who claim to be the legally appointed chosen freeholders of the county of Camden, to test the legal right of certain other persons to exercise the functions of a board of chosen freeholders of such county. To this information a plea has been filed. The motion is to strike out the plea.

Argued June term, 1891, before ABBETT and REED, JJ.

J. Willard Morgan, for the motion. Alfred.

Hugg, opposed.

REED, J. The information sets out the provisions of the statute of May 25, 1894 (P. L. 1894, p. 53), which statute repealed the act passed in 1892, under which act the respondents were elected chosen freeholders. It also sets out the provisions of the act of May 9, 1894 (chapter 145), which act also repeals the act of 1892, and provides a new plan for the organization of the board, and for the election or appointment of its members. The information further sets out the appointment of the relators as members of the board of chosen freeholders, under the provisions of the last-mentioned act The plea is that the respondents, or members of the old board, were elected under the act of 1892, and that their term has not expired; that they are, and the relators are not, entitled to hold the said offices. The plea sets out no title in the respondents, for the act of 1894 in explicit terms not only repeals the act of 1892, but further provides that the terms of office of all persons elected or appointed under the provisions of the act of 1892 are terminated. So, conceding the constitutionality of the act of 1894 (and it is not questioned in this case), the terms of office of the members of the old board were extinguished when the act of 1894 went into effect. City of Hoboken v. Gear, 27 N. J. Law, 265; Love v. Jersey City, 40 N. J. Law, 456. The plea fails to show any title in the respondents, and the ordinary rule is that such title must be exhibited, or the plea is bad. High, Extr. Rem. § 712; Com. Dig. "Quo War. Plea;" State v. Utter, 14 N. J. Law, 84. In instances where the information is filed by the attorney general, or by leave of this court, this failure to set out a title in the respondent would be conclusive against the plea. But the present information is not so filed, but is filed under color of section 1 of the act of 1884 (Supp. Revision, p. 819). This section provides that it may be lawful for any citizen who believes himself lawfully entitled to an office alleged to be unlawfully held by another to file an information. It is perceived that the statute strips the court of its discretionary power over the allowance of the information in one instance only, namely, where the relator himself claims the office. In all other cases, although the relator's interest, by reason of his citizenship, or his liability for taxes, or other causes, may...