State v. Watts

• Citation: 64 N.J.L. 465,45 A. 813
• Parties: STATE ex rel. MANAHAN v. WATTS.
• Decision Date: 05 March 1900
• Court: United States State Supreme Court (New Jersey)

45 A. 813

64 N.J.L. 465

STATE ex rel. MANAHAN

v. WATTS.

Supreme Court of New Jersey.

March 5, 1900.

(Syllabus by the Court.)

Quo warranto by the state, on the relation of Elwood Manahan, against Samuel Watts. Heard on demurrer to plea. Demurrer overruled, and judgment for respondent.

Argued November term, 1899, before MAGIE, C. J., and DEPUE, VAN SYCKEL, and LIPPINCOTT, JJ.

Alan H. Strong, for relator.

A B. Schenck, for respondent.

LIPPINCOTT, J. This is a contest over the office of membership of the board of chosen freeholders of the county of Middlesex, from the borough of South River, in that county. The information sets out the creation of the borough of South River by act of the legislature approved February 28, 1898 (P. L. 1898, p. 35), and that it contained at the time of its organization a population of not less than 3,000 inhabitants, and therefore, by the general act of the legislature relating to boroughs approved April 24, 1897 (p. L. 1897, p. 285, § 2), it was entitled to have one member of the board of chosen freeholders to be elected by the people; that on the 22d day of March, 1899, the respondent, at the first municipal election held in the borough, in due form of law, was elected a member of the board of chosen freeholders; that at the annual municipal election held under the statute relating, to municipal borough elections, on the first Tuesday of March, 1899, the relator became a candidate for election as a member of the board of chosen freeholders, and was elected to that office by a majority of the votes cast at that election, and that by such election he became entitled to such office, but that the respondent still holds and usurps such office, and exercises its duties and privileges, to the exclusion of the relator, and calls upon the respondent to answer by what warrant he claims to hold such office. The defendant answers by setting out the incorporation of the borough; the statute which entitles it to a member of the board of chosen freeholders; the general statutes relating to the election of borough officers, including the member of such board; the act of the legislature of the state entitled "An act relating to newly-created municipalities," approved February 24, 1898 (P. L. 1898, p. 28), and that under the provisions of this act the first election in said borough was held on March 22, 1898, at which the respondent was duly elected a chosen freeholder; that said election was held in due conformity with the act and the general statutes regulating elections, and that he became entitled by such election to the office; that he took, subscribed, and filed his oath of office according to the provisions of an act entitled "A further supplement to an act entitled 'An act to incorporate the board of chosen freeholders of the said state, approved April sixteenth, eighteen hundred and fifty-six,'" which further supplement was approved May 25, 1894; that on the 9th day of May, 1898, that being the day for the annual organization of the board of chosen freeholders under the law, he took his seat in such board, and entered upon the discharge of his duties, and has so continued to the date of the filing of this information. The plea further avers that the clerk of the borough failed, as required by the statute in such case, to give notice of an election of a member of the board of chosen freeholders at the annual municipal election held on the first Tuesday of March, 1899; that the relator was elected to such office by reason of the failure of such notice; and that such election was not legal because of the want of such notice. The information further avers, in distinct paragraphs thereof, that the relator, while claiming to be so elected to such office, has, up to the time of the filing of the information, and at all times hitherto, wholly neglected and absolutely refused to take, subscribe, or file the official oath required by law; and, further, that he has publicly declared and given out that he did not intend to take and file the official oath of a chosen freeholder, and that he did not intend to serve as such; that he has not since his election claimed to be a member of such board, or made any demand either upon said board or the respondent for the office; and that, therefore, he is debarred therefrom, and from exercising its duties and privileges. The respondent claims to be entitled to bold such office and discharge its duties during the term provided by law, and prays that he may be discharged of the premises. To this plea the relator has filed a general demurrer, with a specification of causes upon which such demurrer rests. This demurrer admits the facts set up in the plea, and the case is so considered.

The information in this case is filed without leave of the court, under a supplement to the quo warranto act approved May 9. 1884 (2 Gen. St. p. 2633), which authorizes any citizen of this state who believes himself lawfully entitled to any municipal office or franchise, which he alleges to be usurped by any person or persons, to file an information in the nature of a quo warranto. By the act entitled "An act in relation to the writ of quo warranto," approved February 18, 1895 (2 Gen. St p. 2035), it is provided "that in an actions of quo warranto, the supreme court may, if the writ, return and pleadings are properly framed for the purpose, determine by its judgment not only the title of the respondent to the office or franchise in question, but also the title of the relator or relators to the same office or franchise, and shall have power, by appropriate process or orders, to enforce its said judgment" At the common law, and under our former statutes (2 Gen. St. p. 2632), after leave to file the information, it was only the title of the respondent that was inquired into, and, if that was found bad, judgment of ouster passed against him, without necessarily determining the title of the relator. It commanded the respondent to show by what right—quo warranto—he exercised the office, not having a grant of it, or having forfeited it. The judgment of ouster which followed only affected the status of the incumbent. The prosecutor was not bound to prove his title in order to put the respondent on his defense, and, if the respondent failed in his proof of title or right, judgment of ouster followed, without regard to the question of whether the relator was entitled or not His title, if he claimed one, was not material to the judgment. His right to prosecute was adjudged in the leave given him to call upon the respondent to plead his title, and his right was not thereafter to be called in question; for he was not directly, affected by the result of the proceeding, save in the matter of costs. And this principle still operates wherever the information is instituted in the name of the state through the attorney general, or when the leave is granted by the court to prosecute in the interest solely of the public. 19 Am. & Eng. Enc. Law, p. 660, and cases cited; City of Hoboken v. Gear, 27 N. J. Law, 265; Low v. Mayor, etc., of Jersey City, 40 N. J. Law, 456; High, Extr. Rem. § 712; Com. Dig. "Quo Warranto," tit. "Plea"; Miller v. Utter, 14 N. J. Law, 84; Davis v. Davis, 57 N. J. Law, 82, 30 Atl. 184. But under the statute, to which reference has been made, any one who claims title to an office held and occupied by another can file his information against the incumbent. The procedure is well defined by the statute (2 Gen. St. p. 2633), and under the pleadings the rights of the respective parties to the controversy are drawn into question. The defendant has the right to challenge and deny the title of the relator and claimant instituting the information against him to oust him from his office. The relator must show a title in himself before he can properly Inquire by what authority the respondent exercises the same, and a failure to show such title is fatal to the application. The Issue under the statute now is, which of the parties has the title to the office? and in this proceeding it is merely the private rights of the parties which are affected, and not a case affecting public Interest, where the people are the real as well as the nominal prosecutors Whether the respondent can show a true title or not in the first instance is not material...