On appeal from the Supreme Court.
For the appellant, Charles H. Roemer.
For the respondent, Alexander M. MacLeod (Merritt Lane of counsel).
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. This is an appeal from a judgment in favor of the defendant-respondent in a quo warranto action instituted under section 4 of an act entitled "An act concerning quo warranto" (3 Comp. Stat., p. 4212), wherein the relator alleges that the defendant below usurped, intruded into and unlawfully holds a municipal office (clerk of the borough of Wanaque) to which the relator was entitled.
The defendant, Charles N. Goodfellow, filed a plea to this information, saying that the relator had no right or title to the office in question; that the term of the relator had expired on December 31st, 1932, and that he, the defendant, was duly appointed and qualified as such borough clerk in his place and stead, setting out other facts and circumstances in his plea tending to justify his retention of said office, to all of which the relator filed a replication, joining issue.
The matter was then referred by a justice of the Supreme Court to the Circuit Court judge of the county of Passaic for trial. A jury was waived and the court proceeded to hear the case on the issue presented, and at its conclusion filed a memorandum and signed a finding of fact and postea holding that the defendant was entitled to the office of borough clerk of the borough of Wanaque.
The practice of referring such issue to the Circuit Court is authorized by chapter 118, Pamph. L. 1906, p. 209 (2 Comp. Stat., p. 1712, § 28-a). See, also, Wilson, Attorney-General, v. Morris Railroad Co., 11 N.J. Mis. R. 787 (a case decided in 1912, but not reported until now). The statute confers upon such Circuit Court judge the same powers a Supreme Court justice possesses for the trial of the particular issue, including power to sign a postea.
The postea here, however, recites a finding "that judgment final be entered in favor of said respondent," &c. This was improper. The postea should contain only the facts and the findings germane to the issue. The rule for judgment is predicated on the postea. Cf. 1 Archbold's Practice (Q.B.), p. 328, § 1; 2 Tidd's Practice, p. 900; 3 Comp. Stat., p. 4117, § 210. The inclusion in this postea of this "judgment
finding" is not complained of, is not harmful and at any rate a rule for judgment was later entered.
Now it appears that Edward A. Rhinesmith, the relator, had been clerk of the borough for the calendar year of 1932, and his term would expire at the end of that year, if a successor was legally appointed in his place. In November, 1932, a new mayor, Mr. Barker, and two councilmen, Messrs. Winterhoff and Conklin, were elected, to take office January 1st, 1933.
There are six members of the council. The relator acted as clerk for the organization meeting of the council, which was on January 2d, 1933, at which time Mr. Conklin sent a letter to the meeting tendering his resignation as such councilman. It appears that Conklin had not yet qualified for, although he had been elected to, this office, in that he had not subscribed to the requisite oath of office and filed same with the clerk as required by the statute. (Cf. "An act concerning municipalities," chapter 152, laws of 1917, article 12.) This is a condition precedent to his taking office ...