State v. Mayor

• Citation: 49 N.J.L. 515,10 A. 377
• Parties: STATE ex rel. GIBBS and others v. MAYOR, ETC., OF THE BOROUGH OF SOMERS POINT.
• Decision Date: 06 August 1887
• Court: New Jersey Supreme Court

10 A. 377

49 N.J.L. 515

STATE ex rel. GIBBS and others

v. MAYOR, ETC., OF THE BOROUGH OF SOMERS POINT.

Supreme Court of New Jersey.

August 6, 1887.

(Syllabus by the Court.)

On quo warranto information.

The information in the name of the attorney general of the state, at the relation of Wesley Gibbs, John B. Somers, and others, states the proceedings under "An act for the formation of borough governments in seaside resorts," approved March 29, 1878, by which an election was had April 24, 1886, resulting in favor of establishing an incorporated borough in Egg Harbor township, Atlantic county, by the name of the "Mayor and Council of the Borough of Somers Point," and the selection of George C. Anderson for mayor, John Townsend and others for council, and a clerk, assessor, and other officers; that these officers are exercising the duties of their several offices under the claim that the borough government has been duly incorporated by virtue of the proceedings under said statute; that the action taken was not in compliance with the terms of the act, and that, therefore, the said borough is not a corporation de jure; and the mayor and council have usurped, and unlawfully assume to hold, exercise, and enjoy, the franchises of a corporation of this state contrary to law. Whereupon the attorney general, at the relation of Wesley Gibbs and others, residents and property owners within the pretended borough limits, filed this information against the said "The Mayor and Council of the Borough of Somers Point," and George C. Anderson, John Townsend, and others, to answer by what warrant they, the said "The Mayor and Council of the Borough of Somers Point," claimed to hold, use, exercise, and enjoy the franchises of a municipal corporation, and by what warrant the said George C. Anderson and others claim to hold, use, exercise, and enjoy the aforesaid offices, and the liberties, privileges, and franchises thereof.

An order to plead having been granted, the respondents demur to the information, and for specification of causes of demurrer, on demand made therefor, say that the information does not disclose or show any right or cause of action in the relators, or any or either of them, to forfeit, or cause to be forfeited, the franchises and rights of the mayor and council, or that the said officers have usurped and intruded, or unlawfully hold or exercise, any office or franchise, or that the relators show any righf to exhibit or prosecute an information under this statute, or otherwise; for that the said information only shows a cause in which the attorney genera! may prosecute an information in behalf of the state, ex officio, at his own instance, and not in behalf of the relators, or any or either of them.

D. J. Pancoast, for relators. Thompson & Endicott, for defendants.

SCUDDER, J. The distinction between an information in the nature of a quo warranto, by the attorney general, ex officio, and without leave, in behalf of the state or sovereign, and an information of like nature in behalf of private relators, by leave of the court, has been frequently stated in judicial decisions, and seems to be well established. The statute of 9 Anne, c. 20, which has been adopted in substance by our statute of March 17, 1795, (Revision, 905,) and made more speedy and effectual in its operation by the act of May 9, 1884, (Laws, 320,) refers to the latter remedy against usurpers and intruders into office at the relation of any person or persons desiring to sue or prosecute the same with the leave of the court, while the former proceeding is a common-law vindication of the sovereign prerogative to grant franchises, to oust all who usurp them without legal authority, and forfeit such franchises when illegally...