State v. Whitehead

• Decision Date: 24 February 1902
• Citation: 67 N.J.L. 405,51 A. 472
• Parties: STATE ex rel. ARMSTRONG v. WHITEHEAD.
• Court: New Jersey Supreme Court

51 A. 472

67 N.J.L. 405

STATE ex rel. ARMSTRONG

v. WHITEHEAD.

Supreme Court of New Jersey.

Feb. 24, 1902.

(Syllabus by the Court.)

Quo warranto by the state, on the relation of Robert L. Armstrong, against John Whitehead. Verdict directed for defendant. Order to show cause discharged.

Argued November term, 1901, before GUMMERE, C. J., and GARRISON, COLLINS, and PITNEY, JJ.

Alan H. Strong, for the relator.

Allan L. McDermott, for defendant.

PITNEY, J. The controversy in this case relates to the title of the defendant to the office of councilman of the borough of South River, in the county of Middlesex. A verdict was directed against the defendant The essential facts are not in dispute, and the only reasons relied upon to support the insistment that a new trial should be granted relate to the legal propriety of that direction.

The borough was incorporated by act approved February 28, 1898 (P. L. 1898, p. 35), and is governed by the general act relating to boroughs. Revision 1897; P. L. 1897, p. 285. Prior to March 12, 1901, the council of the borough was composed of Mayor Church and Councilmen Fee, Eulner, Serviss, Mark, Rogers, and the defendant, Whitehead. Church was elected mayor in 1899 to serve for two years, and until his successor should have qualified. Mark was elected councilman at the same time, to serve for three years, and until his successor should have qualified, so that the term of Mark would not expire until 1902. Eulner and Whitehead were elected councilmen in 1898, to hold office for three years, and until their successors should qualify. The terms of Fee, Serviss, and Rogers extended beyond the year 1901. March 12, 1901, was the date fixed by section 5 of the general borough act for holding the annual election, and an election was held accordingly to fill the offices of Mayor Church and Councilmen Eulner and Whitehead, whose terms were about to expire. At that election Mark (whose term in the council would not expire until 1902) was elected to the office of mayor, and candidates Manahan and Brown were elected to succeed Councilmen Eulner and Whitehead. Whitehead's present title to the office of councilman is rested upon his alleged appointment by the new council to fill the vacancy caused by the election of councilman Mark to the office of mayor and his acceptance of that office.

The following provisions of the general borough act are pertinent to the inquiry, and may with convenience be here recited: By section 2 the elective officers of every borough shall be a mayor, six councilmen, and other officers to be elected by the people. By section 3 it is provided that, in addition to the officers to be elected, there may be appointed certain officers mentioned in that section; and it is provided that the mayor shall nominate, and with the advice and consent of the council shall appoint all officers in this act directed to be appointed, including the filling of vacancies in elective offices. By section 4 It is provided that vacancies occurring in the offices of mayor or councilmen, among others, shall be filled by appointment until the next annual election, and until the election and qualification of a successor, and that the term of office of all the elective officers shall begin on the Monday next after their election. By section 5 the annual election for borough officers is to be held at the same time as the general township election. By section 8 all officers shall within 10 days after their election or appointment, and before entering upon the discharge of the duties of their office, take and subscribe an oath or affirmation faithfully and impartially to discharge the duties of their respective offices, shall tile such oath or affirmation with the clerk of said borough, and upon failure so to do the said office shall be deemed to be vacant By section 23 the mayor and councilmen shall constitute the council, and shall meet on the first Monday after each annual election (which meeting shall be denominated the annual meeting), and thereafter at such time and place as they may by resolution direct, or to which their meetings may be adjourned. Three councilmen and the mayor shall constitute a quorum for the transaction of business, but a smaller number may meet and adjourn from time to time. All meetings shall be presided over by the mayor, except as herein otherwise provided, but he shall not vote, except to give the casting vote in case of a tie. In the absence of the mayor, four councilmen shall constitute a quorum. By section 26 all ordinances shall be submitted in writing at a regular meeting of the council, and passed at a subsequent regular meeting; provided, however, that no ordinance shall be finally passed, no officer appointed or removed, or salary fixed, except by the vote of a majority of the whole council.

The Monday next after the borough election of 1901 fell on the 18th of March. A meeting of the old mayor and council was held on that day, at which all were present viz. Mayor Church and Councilmen Eulner, Whitehead, Fee, Serviss, Mark, and Kogers. The borough clerk at that time was William Morgan, who was present at the meeting recording its proceedings and performing his other duties. When this meeting commenced Mark had not qualified as mayor, nor had Manahan or Brown qualified as councilmen. Mark therefore held over as councilman, and took part in the meeting as such. Eulner and Whitehead likewise participated in the meeting as councilmen. During the meeting Brown appeared, and filed with the borough clerk his oath of office, taken in due form, under section 8 of the borough act. He did not however, take his seat nor participate in any way in this meeting. Eulner and Whitehead, the hold-over councilmen, continued to participate until its close. At or shortly before its close, Mark publicly announced that at the conclusion of that meeting he would call to order the regular annual meeting of the borough council, under section 23 of the act. Either before or after this announcement, the meeting presided over by Mayor Church adjourned to the 22d of March. The defendant challenges the legal validity of this adjournment and for the purposes of the present discussion it will be treated as a nullity, and as not interfering in any way with the efficacy of the proceedings subsequently conducted under the presidency of Mark, on the 18th. Immediately upon the adjournment of the meeting presided over by Mayor Church, he, together with Councilmen Fee, Rogers, and Eulner, left the council chamber. Just prior to their departure Mayor-Elect Mark...