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Tonkin v. Kenworthy

Decided: January 24, 1934.

WILLIAM J. TONKIN, RELATOR,
v.
SAMUEL S. KENWORTHY, DEFENDANT



On quo warranto.

For the relator, Walter C. Ellis, Spaulding Frazer and William Newcorn.

For the defendant, Frank J. Reardon, Thomas M. Kane and Thomas E. Duffy.

Before Brogan, Chief Justice, and Justices Trenchard and Heher.

Heher

The opinion of the court was delivered by

HEHER, J. Relator, a citizen, resident and taxpayer of the village of Ridgewood, in the county of Bergen, was granted leave of this court, under section 1 of an act entitled "An act relating to informations in the nature of a quo warranto" (3 Comp. Stat., p. 4210), to exhibit in the name of the attorney-general an information in the nature of a quo warranto against defendant, to inquire by what warrant defendant claims to hold the office of executive secretary of the New Jersey State League of Municipalities. Leave was allowed without prejudice in respect of the point raised by defendant, on the argument of the rule to show cause, as to the propriety of the information.

Defendant demurred to the information. A demurrer is an admission of all facts that are well pleaded; but it does not admit conclusions of law stated in the information. While the demurrer here interposed admits the allegation of the information that demurrant usurps, intrudes into and unlawfully holds and exercises the office in question, if the information contains allegations showing that demurrant is entitled to the office, the averments are inconsistent, and he is entitled to judgment. Bonynge v. Frank, 89 N.J.L. 239; 98 A. 456; Edelstein v. Fraser, 56 N.J.L. 3; 28 A. 434; Attorney-General v. Fox, 72 N.J.L. 6; Browne v. Hagen, 91 Id. 544.

The information alleged, inter alia, that the New Jersey State League of Municipalities is an association of municipalities organized under the provisions of chapter 163 of the laws of 1915 (Pamph. L. 1915, p. 321), authorizing municipalities in the state to join or to form and join an organization of municipalities for joint municipal action upon questions affecting the general welfare of such municipalities;

that on or about June 21st, 1932, at a meeting of the executive board of the league, Barrett L. Crandall was duly elected its secretary; that the executive secretaryship is an office provided by the act; that the league is governed by a constitution, duly adopted by the members thereof, which provides for a governing body, known as the executive board, elected at the annual meeting of the league, and an advisory board, made up of municipal officials or persons interested in civic problems, chosen by the executive board; that the constitution directs that the members of the advisory board shall be invited to attend all meetings of the executive board, and shall be permitted to participate in the discussion of all questions, but without the right to vote; that the constitution also provides that the office of executive secretary shall be filled by the appointment of the executive board, on such terms and at such salary as it may from time to time prescribe; that under the constitution the secretary's term is not fixed, and that Crandall held for an indefinite term; that at a meeting of the executive board, held on November 28th, 1932, the office of executive secretary was declared vacant, and defendant, who was then president of the league, was declared elected to said office, and immediately thereafter resigned as president of the organization; and that said defendant has ever since usurped, intruded into, and unlawfully held and exercised, and still unlawfully holds and exercises, the said office, to the exclusion of the said Crandall.

A preliminary question must first be determined. Defendant maintains inasmuch as the act creating the league of municipalities provides that the governing board of each member municipality shall have authority to designate the mayor or other executive officer of the municipality, or either of the members of the governing body, to represent it in the league, and relator was not so designated, he is a mere stranger seeking to interfere with the affairs of the league, and does not have the requisite status for intervention by quo warranto to litigate the legality of the election. Assuming that the public interest in this office is such as to justify inquiry, by information in the nature of a writ of quo warranto, into the

legality of the election, relator has such an individual interest in the due election of this officer as to justify his interposition by quo warranto. He is a citizen and taxpayer, and director of revenue and finance, of the village of Ridgewood, a member municipality of the league. As such he has the undoubted right to interpose. His good faith is not in question. Bonynge v. Frank, supra; ...


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