Stevens v. Haussermann

• Decision Date: 16 May 1934
• Docket Number: No. 16.,16.
• Citation: 172 A. 738
• Parties: STEVENS, Atty. Gen., ex rel. KUBERSKI v. HAUSSERMANN.
• Court: New Jersey Supreme Court

172 A. 738

STEVENS, Atty. Gen., ex rel. KUBERSKI

v. HAUSSERMANN.

No. 16.

Supreme Court of New Jersey.

May 16, 1934.

Quo warranto by William A. Stevens, Attorney General, on the relation of Walter Kuberski, against Charles Haussermann.

Judgment of ouster entered.

Argued January term, 1934, before BROGAN, C. J., and TRENCHARD and HEHER, JJ.

Stephen VR. Strong, of New Brunswick (Morris Spritzer, of New Brunswick, of counsel), for relator.

John E. Toolan, of Perth Amboy, for defendant.

HEHER, Justice.

Relator, Kuberski, challenges the title of defendant, Haussermann, to the office of councilman of the borough of South River, in the county of Middlesex. He was granted leave to exhibit in this court, in the name of the Attorney General, an information in the nature of a writ of quo warranto, to inquire by what warrant or authority defendant claims the office in question. There is incorporated in the state of the case a copy of a writ commanding the sheriff to summon defendant before this court, on a day specified, "to answer unto the State of New Jersey, ex rel. Walter Kuberski, relator, and pleading (sic) to the information in the nature of a quo warranto filed on behalf of the Attorney General of the State of New Jersey, and to show by what warrant he claims to hold, use, execute and enjoy the office of Councilman of the Borough of South River." It was stipulated that the petition for leave to file an information "shall be deemed to be the Information herein," and that the "statutory requirements concerning pleadings and notices are hereby waived and the agreed state of facts heretofore executed between the parties (submitted on the hearing of the rule to show cause) shall constitute an agreed state of facts in lieu of the usual factual pleadings, on final argument upon the writ."

No issue of law or fact is formally tendered. It is requisite that an issue be framed by appropriate pleadings. The object of a proceeding by information in the nature of a quo warranto is to try and determine the fact of usurpation. The information must plead facts showing usurpation, and the parties are required to proceed to an issue by plea or demurrer. 3 Comp. St. 1910, pp. 4210, 4213, §§ 1, 6. Bonynge v. Frank, 89 N. J. Law, 239, 98 A. 456, Ann. Cas. 1918D, 211; Attorney General v. Delaware & Bound Brook Railroad Company, 38 N. J. Law, 282. Unless title in respondents is shown by the information, it must be exhibited by plea. If the plea does not set out such title, it is bad. Bonynge v. Frank, supra; Davis v. Davis, 57 N. J. Law, 80, 30 A. 184. But, inasmuch as the propriety of the information is not questioned, and the parties join in a request that defendant's title to the office be determined, and the public interest requires that the issue be settled, we proceed, without approving the practice here followed, to a consideration of the meritorious question.

Haussermann and one Henry were duly-elected members of the borough council whose terms expired on December 31, 1933. They were candidates for re-election at the general election held in November, 1933. Kuberski and one Klekner were candidates to succeed them. Kuberski was concededly elected. He received the highest number of votes polled. He qualified and took his seat at the organization meeting held on January 1st following. Haussermann and Klekner received an equal number of votes, the next lowest polled in the contest for these offices, while Henry received the lowest number of votes cast. Kuberski was. therefore the only successful candidate of the four. Section 25 of article 3 of the act to regulate elections (P. L. 1930, c. 187, pp. 671, 683 [Comp. St. Supp. § 65—325A]) provides that "whenever an equal number of votes shall have been given to two or more persons to fill any office for which they shall by law be qualified, the said office shall be deemed and taken to be vacant."

At a meeting of the council held on December 11, 1933, Henry submitted his resignation as a member of that body, to take effect immediately. The resignation was thereupon formally accepted. The meeting was attended by four of the six members of the council, including Haussermann and Henry, and the motion to accept the resignation was adopted by a unanimous vote. It is stipulated that the mayor and the two absentee members of the council, "being opposed to the presentation and acceptance of said resignation, so stated and declined to be present at said meeting, and further declined to attend any subsequent meetings thereafter and until January 1, 1934, unless given assurance that the resignation of said Henry would not be again presented or action taken with respect thereto." The requisite assurance being given, the mayor and the absentee councilmen attended a subsequent meeting of the council held in December, 1933, but no action relating to the resignation was taken or proposed.

Haussermann insists that he is a hold-over member of the council, within the intendment of section 4 of the act relating to boroughs (1 Comp. St 1910, p. 230, § 4), providing that members of the council shall hold office for the term of three years, "and until their successors shall have qualified." The question at issue is the validity of this claim.

Concededly, were it not for the resignation of Henry, the claim of Haussermann would be untenable. He and Henry would then have had an "equal claim to fill the vacancy occasioned by the elective tie." At the election a successor to only one of the above-named two members was elected. Neither could, in such circumstances, assert that his successor has not been elected, and that, consequently, he holds over. Kilburn v. Con-Ian, 56 N. J. Law, 349, 29 A. 162, 163; Armstrong v. Whitehead, 67 N. J. Law, 405, 51 A. 472. This statutory regulation, extending a councilman's term until his successor shall have qualified, is impracticable when sought to be applied to a case such as this. "Such a juncture exhibits a casus omissus in the act, which, of course, the court cannot supply." Kilburn v. Conlan, supra. The provision referred to is, in such circumstances, rendered inoperative.

But the insistence of defendant is that, because of Henry's resignation, he only had a claim to fill the vacancy, and that, consequently, the rule laid down in the cited cases does not apply. Relator replies (1) that the result of the election, and his qualification as a member of the council, are determinative of the issue, and that the status thereby created was in no wise affected by the resignation of Henry; and (2) that the resignation was ineffective for the following reasons, viz.: (a) Henry, as a member of the council, voted to accept his own resignation; (b) defendant was disqualified because, in voting to accept Henry's resignation, he voted to continue himself in office beyond the expiration of his term; (c) the resignation was not legally accepted; and (d) the resignation was "a deliberate attempt to evade the force of the rule laid down" in the cited cases, and, if effective, cannot serve to extend defendant's term.

The first insistence of relator is obviously without merit. It is the "equal claim" of two or more members of the body to the vacant office, at the time of the occurrence of the vacancy (in the statutory sense of a vacancy that results from the termination of the documentary title to the office), that renders the statutory provision inoperative. The object and policy of the statute are clearly to guard against actual vacancies in the councilmanic body, and a construction is required that will effectuate, and not thwart, the legislative purpose. If Kuberski were unable, for any reason, to qualify at the commencement of the term for which lie was elected, or failed or refused so to do, the right of defendant and Henry to continue in office could hardly be gainsaid. Otherwise, the plain mandate of the statute, that members of a borough council shall hold office for the prescribed term, "and until their successors shall have qualified," would be disregarded.

And the claim of defendant that, under the section of the election law hereinbefore referred to, the office becomes vacant, when there is no election by reason of a tie vote, is equally fallacious. We do not discern a legislative purpose to repeal the holdover provision of the Borough Act. There is no express repealer, and repeal by implication is disfavored in the law. A legislative purpose to effect the repeal of an earlier statute, not made the subject of an express repealer, must be so clearly indicated as to leave no reasonable basis for doubt. Adams v. Mayor and Common Council of City of Plainfield, 109 N. J. Law, 282, 161 A. 647, affirmed 110 N. J. Law, 377, 166 A. 164. Moreover, it is clear that the "vacancy" contemplated by the statute is such as exists when there is "no documentary title to the office." Abrams v. Smith, 98 N. J. Law, 319, 119 A. 792, 794.

We are thus brought to a consideration of the contention that there was not an effective resignation of the office held by Henry. The resignation of a public office does not become effective until it is presented to the proper authority, and accepted by it. In the absence of a specific regulation to the contrary, the proper authority to accept a resignation is that which has the power to fill the vacancy. Fryer v. Norton, 67 N. J. Law, 537, 52 A. 476; Reeves v. Ferguson, 31 N. J. Law, 107; Edwards v. United States, 103 U. S. 471, 26 L. Ed....