For the relator, Stephen V. R. Strong (Morris Spritzer, of counsel).
For the defendant, John E. Toolan.
Before Brogan, Chief Justice, and Justices Trenchard and Heher.
The opinion of the court was delivered by
HEHER, J. 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. Stat., p. 4210, §§ 1, 6; Bonynge v. Frank, 89 N.J.L. 239; Attorney-General v. Delaware and Bound Brook Railroad Co., 38 Id. 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 Id. 80. 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 31st, 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 (Pamph. L. 1930, pp. 671, 683) 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 11th, 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 1st, 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 ...