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McCarthy v. Walter

Decided: October 19, 1931.

JAMES W. MCCARTHY ET AL., RESPONDENTS,
v.
ADOLPH WALTER ET AL., APPELLANTS; JAMES W. MCCARTHY ET AL., RESPONDENTS, V. THEODORE A. KLEFFMAN ET AL., APPELLANTS



On appeal from the Supreme Court, whose opinion is reported in 107 N.J.L. 223.

For the appellants, J. Emil Walscheid.

For the respondents, J. Raymond Tiffany.

Campbell

The opinion of the court was delivered by

CAMPBELL, J. These are appeals from judgments of ouster in two proceedings in quo warranto, instituted and prosecuted under section 4 of the Quo Warranto act. Pamph. L. 1903, p. 377; 3 Comp. Stat., p. 4212.

The grounds of appeal may be grouped under five heads or points; the first, second and third applying to both judgments, and the fourth and fifth to that which is known as the Boulevard case, only.

These grounds will be taken up in order.

I. The judgments under review cannot be sustained because the proceedings upon which they are based are under section 4 of the Quo Warranto act.

To sustain this point appellants urge several reasons: (a) The existence of the offices of the incumbents, respondents below, cannot be inquired into; that right residing exclusively in the attorney-general in his official, public, capacity.

(b) To succeed, the relators must claim the identical offices held by the alleged usurpers, which is not the situation here because in the Park case the offices of the respondents below were abolished by Pamph. L. 1930, ch. 260, and, in the Boulevard case, they were abolished by Pamph. L. 1930, ch. 261, and further, that relators below contend their right to hold exists under Pamph. L. 1930, ch. 262.

(c) There must be identity of office in that claimed by the relator and respondent in proceedings under section 4 of the Quo Warranto act, and such identity does not exist in these cases.

(d) By the guise of urging that Pamph. L. 1930, ch. 261, abolishes the offices of boulevard commissioners, the relators, are in fact seeking an adjudication that those offices no longer exist, and the judgment of ouster is to that effect and

further that five park commissioners, that being the number of relators, may not proceed against three boulevard commissioners, the respondents below.

The Supreme Court held that chapters 260 and 261 simply abolished "the offices of the incumbents," and "the offices in the commission remain." With this conclusion we are unable to agree. The unquestioned purpose of these two acts was to oust the respondents below from the offices then occupied by them. We need not consider whether this might properly and effectively have been accomplished in one manner or another. Both acts contain the plainest and most unmistakable language, permitting of but one construction, and that is that the respective offices are abolished and not merely the tenure by which respondents below were holding such offices. If this drags down and extinguishes the corporate entities no reason is thereby presented for according the legislation a construction which will do violence to the exact and explicit language employed. If the corporate entity of the park board was destroyed by chapter 260 a new entity was attempted to be immediately set up by chapter 262. In the boulevard matter the situation is different and will be treated of later.

The result is that the relators, in their attack upon the park commissioners holding office on the passage of chapter 260, were not properly proceeding, nor could they under section 4 of the QUO Warranto act because they were not contesting simply the right of the defendants to lawfully occupy the offices the latter claimed, but were, in fact, and of necessity, attacking the office itself and actually asserting that it did not exist.

Further, there is no identity between the two offices except as to the duties and powers concerning the control and management of county parks. The park commission, represented by the defendants, was made up of four commissioners, no more than two of whom could be of the same political party; their terms were four years and they received their appointments at the hands of the Court of Common Pleas of Hudson county.

The relators are five in number, no more than three of whom shall be of the same political party, their terms are five years and they receive their appointments from the governor.

In the boulevard matter the situation also exists that by chapter 261 the offices of commissioners held by the defendants were abolished; the relators were not created and constituted a boulevard commission; the office, if any they had, was that of park commissioners. Whatever they took came to them as park commissioners by their appointment under chapter 262 and as such, chapter 261 attempted, by abolishing the offices of boulevard commissioners held by the defendants, to endow the relators with the powers and duties of the defendants.

We find that the procedure under section 4 of the Quo Warranto act was not proper and the judgments of ouster cannot be maintained. Steelman v. Vickers, 51 N.J.L. 180; Davis v. Davis, 57 Id. 80; Richman v. Adams, 59 Id. 289; Holloway v. Dickinson, 69 Id. 72; Manahan v. Watts, 64 Id. 465; Moore v. Seymour, 69 Id. 606; Dunham v. Bright, 85 Id. 391, 394; Morris v. Fagan, 85 Id. 617; Florey v. Lanning, 90 Id. 12.

II. That in proceeding under section 4 of the Quo Warranto act the relators must establish legal title in themselves and cannot succeed through the weakness, or lack, of title in the respondents.

This is so and fully set at rest by Davis v. Davis; Manahan v. Watts; Dunham v. Bright and Florey v. Lanning, all before referred to.

III. The Park act of 1902, page 811 (3 Comp. Stat., p. 4161), is unconstitutional because it is therein provided that it shall not be submitted to the voters of any county for acceptance or rejection unless, and until, the board of chosen freeholders of such county have by resolution so determined and provided. This was pleaded for the purpose of establishing that if the act is unconstitutional, then so also are Pamph. L. 1930, ch. 260, 262, and the relators took nothing by them; that at best they were but de facto officers; that

the respondents below, holding by the act of 1902, were also de facto officers, thus leaving the relators unable to succeed because of their inability to show a better ...


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