Zenkert v. City of Garfield

• Decision Date: 16 May 1927
• Docket Number: No. 278.,278.
• Citation: 137 A. 548
• Parties: ZENKERT v. CITY OF GARFIELD et al.
• Court: New Jersey Supreme Court

137 A. 548

ZENKERT

v. CITY OF GARFIELD et al.

No. 278.

Supreme Court of New Jersey.

May 16, 1927.

Proceeding by Peter Zenkert against the City of Garfield, Frank J. Matisovsky, and others. On rule to show cause why a writ of certiorari should not be allowed to review the alleged illegal action of the City of Council of Garfield in confirming the appointment of defendant last named as Recorder. Rule to show cause discharged.

Argued January term, 1927, before PARKER, BLACK, and CAMPBELL, JJ.

Arthur T. Vanderbilt, of Newark, for prosecutor.

Merritt Lane, of Newark, for defendants.

PER CURIAM. The prosecutor, a member of the city council of Garfield, seeks to review and to have set aside, the alleged illegal action of the council in confirming the appointment of defendant Matisovsky as recorder of Garfield. The basic ground of the application is that there was no quorum present at the time, and hence no valid confirmation. The meeting was on March 22d; Matisovsky took the oath of office on the 25th, and, at the time the present rule was served on him, had entered upon the discharge of his official duties.

In this posture of affairs the question at once arises whether quo warranto is not the exclusive remedy. It is plain enough that the title of Matisovsky to a public office of which he is in actual occupancy is in question. There is no question about the existence of the office, and none as to the power of the mayor and council to fill a vacancy; the question is whether that vacancy was lawfully filled. As to whether the quorum had been broken by the departure of prosecutor and three of his associates from the council chamber, the facts are in substantial dispute. We consider that we are not called upon to settle that dispute of fact, because we are clear that certiorari will not lie. The new term of office began on April 1st, and the rule to show cause, made herein on March 30, was served on defendant Matisovsky on the morning of April 1st, after he had taken his seat on the recorder's bench and called for the calendar of cases. He was in full possession of the office, which had been vacated by his predecessor the night before, and which is not now claimed by the latter.

It is urged that the case of Lewis v. Newark, 74 N. J. Law, 308, 313, 65 A. 1039, is applicable; but an examination of that case shows at once that the question was as to the existence of the office itself, not the title to it. A similar case is Loughran v. Jersey City, 86 N....