On information in the nature of a quo warranto. On demurrer to plea.
For the relator, Wall, Haight, Carey & Hartpence (John A. Hartpence).
For the defendant, C. Raymond Lyons.
Before Brogan, Chief Justice, and Justices Case and Perskie.
The opinion of the court was delivered by
CASE, J. This is a proceeding under section 4 of the Quo Warranto act (3 Comp. Stat., p. 4120, at p. 4212), whereby the relator claims the office of member of the county board of elections of the county of Essex for a period of two years from March 1st, 1936, and attacks the right of the present incumbent, Edith Kreutzinger, to that office. The issue comes to us on demurrer to the defendant's plea.
The information alleges in paragraph 2 that Henry W. Jeffers, chairman of the Republican state committee, on February 24th, 1936, by virtue of paragraph 68, section 19 of article VI of the act to regulate elections (Revision of 1930, Pamph. L. 1930, p. 671), nominated, in writing, the relator for the office of member of the county board of elections for the county of Essex and sent the nomination to the governor, in writing, whereupon, it is alleged, it became the duty of the governor to commission the relator on or before March 1st, 1936, and that the relator demanded of the governor that he commission her but that such commission was refused,
and that relator presented herself to the county clerk of the county of Essex and was refused permission to take and subscribe her oath of office. Relator further alleges in paragraph 3 of the information that "her nomination * * * was sent to the governor as aforesaid in a list of members of the county boards of elections in the several counties of the state, written with lead pencil, and that the name of said defendant, Edith Kreutzinger, was not included therein;" that Mr. Jeffers called at the office of the governor at the state house, failed to find the governor and informed those in charge that he wished to deliver to the governor personally "a typewritten list of the names of those persons he had nominated for members of the county boards of elections in the several counties of the state, including the said relator for said county of Essex," and that Mr. Jeffers was informed "that the lead pencil list referred to was acceptable to the governor;" that Mr. Jeffers made further unsuccessful efforts to find the governor during the month of February and on Sunday, March 1st, called upon the governor and "handed him personally the aforesaid typewritten list of nominations, including the name of said relator for said board of Essex county." The information further avers that on March 2d the governor filed with the secretary of state an appointment of the respondent, which appointment, on March 9th, was amended to read as follows: "I hereby nominate for appointment as members of the county boards of elections for the full term of two years from March 1st, 1936; * * * Essex * * * Edith H. Kreutzinger Address Montclair * * * Harold G. Hoffman, Governor," to which the official seal and the attestation of the governor's secretary were appended.
The plea asserts that on March 1st, 1936, a vacancy of office existed in the county board of elections for the county of Essex under the statute and that prior to March 1st, 1936, no nomination for the office in question on said board had been made to the governor by the chairman of the Republican state committee; further, that the relator had never been commissioned to the office, had never taken and subscribed an oath or affirmation as required by the statute, had no right
or title to the office and was without legal standing to prosecute the information. To that plea the relator demurs.
The statute, chapter 187, Pamph. L. 1930, p. 671 (at p. 701), in paragraph 68 provides that "the chairman of the state committee of each of the two political parties as aforesaid shall, during the month of February, in writing, nominate two persons residing in each county, qualified as aforesaid for members of the county board in and for such county; and if nomination be made in said month of February the governor shall commission such appointees on or before the first day of March; * * *," and in paragraph 70 that "if in any case the state chairman shall fail to send in writing to the governor nominations for appointments within ...