On information in the nature of a quo warranto, plea and demurrer to plea.
For the relator, John J. Clancy and Edward R. McGlynn.
For the respondent, William A. Calhoun.
Before Brogan, Chief Justice, and Justices Parker and Bodine.
The opinion of the court was delivered by
PARKER, J. Quo warranto under section 4 of the act (Comp. Stat., p. 4212), between two contestants for the office of "town attorney" of the town of West Orange, a municipality having five commissioners under the Commission Government act. See Cum. Supp. Comp. Stat. 1924, pp. 2457 et seq.; Cum. Supp. Comp. Stat. 1930, pp. 1268 et seq., and particularly section 4 (at p. 1270). Grosso, the respondent, was appointed December 13th, 1933, for a term of one year, and claims as a holdover. The question is not so much as to Grosso's title as touching that of McGlynn; for if he was lawfully appointed and qualified, that disposes of any claim on the part of Grosso. The dispute arises, as usual, out of a disagreement in the board of commissioners.
That board was elected on May 8th, 1934, and organized on the 15th. The five departments were assigned in the usual manner, that of public affairs going to Commissioner Laidlaw. The next step was to "determine the powers and duties to be performed by each department," &c. Pamph. L. 1930, (at p. 997).
In designating the powers and duties of the department of public affairs, the resolution of May 15th read as follows:
"Resolved that Commissioner Benjamin P. Laidlaw be and he is hereby chosen and designated as Director of the Department of Public Affairs.
"Be it further resolved that the Department of Public Affairs shall have supervision and direction of the following departments, offices and functions of the town: Department of Public Health, Overseer of the Poor, Department of Licenses and Fees, Sinking Fund Commission, Scavenger Service, Zoning, Incinerating Department, Planning Commission, Purchasing Department, Town Clerk and Town Attorney, except that the Town Clerk and Town Attorney shall be selected by a majority vote of the entire Board of Commissioners."
Commissioner Laidlaw objected to the final excepting clause, reserving to the commissioners as a body the appointment of town attorney (that of town clerk is not here in question) and a week later, over Laidlaw's objection, the board passed a resolution rescinding the whole resolution of May 15th above quoted, and adopted a new one identical with the first but concluding with the words "Purchasing Department." It will be observed that this last resolution, if valid, left the director of Public Affairs not only powerless to appoint the town attorney, but without any exclusive jurisdiction over him when appointed. Grosso was still in office as town attorney, his term not expiring until December 12th, 1934. As he was immune to attack until that date, it may be that either resolution, or both, could have been challenged by certiorari. No such challenge seems to have been made. Nor was there any direct attack, so far as appears, on a further resolution adopted also on May 22d, and which reads as follows:
"Whereas the services required of the Town Clerk and Town Attorney are of a general nature and of equal importance to each of the ...