For the relator, Lionel Isaacs.
For the respondent, Irwin Rubenstein.
Before Brogan, Chief Justice, and Justices Lloyd and Donges.
BROGAN, CHIEF JUSTICE. This is an action in quo warranto, the relator having filed an information under the fourth section of the statute. The contest between the relator and the respondent is for the office of comptroller of the town of West New York, Hudson county, New Jersey.
An agreed state of facts has been filed and from it we extract the following pertinent data:
The relator claims he is entitled to the office of comptroller of West New York. On May 26th, 1931, the governing body of that town, by resolution, created the office of comptroller as a subordinate branch of the department of revenue and finance, and fixed the salary thereto attaching. The relator was appointed to the post, without term, in the same resolution that created it. He qualified according
to law and held the office until May 21st, 1935, at which time he was displaced by the respondent, who was appointed by resolution of that date.
The town of West New York was incorporated under the statute of 1895, "An act for the formation, establishment and government of towns (Comp. Stat., p. 5518)," but in 1931, the people of West New York adopted the commission form of government, known also as the Walsh act (chapter 221, Pamph. L. 1911), and since the month of May, in that year, the municipal affairs have been conducted under that governmental plan. The relator's claim to tenure in office arises out of his status as an honorably discharged soldier of the United States army.
The question for determination is three-fold -- (1) whether the relator acquired tenure under the Veterans act (chapter 14, Pamph. L. 1907); (2) (a) whether the resolution appointing the relator in 1931, created the office of comptroller for a term of three years and, if so, was the said office created legally for that period or for any fixed term, or (b) was the office of comptroller legally created and relator appointed for a term not fixed by law so as to give the relator the benefit of the Veterans act; (3) whether the failure of the relator to file his information until three months after he was ousted, convicts him of laches.
Our first inquiry must needs be whether the office itself, which is the subject of this contest, is legally in existence, since if it is not, the relator can have no legitimate claim to it. The Town act of 1895 (supra) exhibits no authority for the creation of the office of comptroller. Reference, however, is made to chapter 147, Pamph. L. 1911 (a supplement to the Town act), which makes provision for the election of a comptroller for a definite term. But this supplemental statute is of no consequence in this matter since by its provisions it remains inoperative (section 5) until adopted by the voters of the municipality which, in this instance, never took place. ...