For the relator, Edward I. Baker.
For the respondent, Bourgeois & Coulomb.
Before Brogan, Chief Justice, and Justices Trenchard and Parker.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. This case comes to us upon a demurrer to a plea filed in an information in quo warranto proceedings. The information is filed in the name of the attorney-general, by a citizen and taxpayer of Atlantic City, under section 1 of the statute. 3 Comp. Stat., p. 4210. The question raised is whether the respondent, Thomas D. Taggart, Jr., who holds the office of recorder of Atlantic City, has, by his election to the state legislature and taking his seat as a member of the general assembly, thereby caused a vacation of his office of recorder. Mr. Taggart was appointed recorder of Atlantic City on March 26th, 1936. He was elected a member of the house of assembly of New Jersey at the November election in 1936, and took his seat as such member in the ensuing January.
The language of our constitution, relied upon to oust the respondent, may be found in article IV, section 5, paragraph 3 of the constitution of the State of New Jersey, as amended (1844), and reads as follows:
"No justice of the Supreme Court, nor judge of any other court, sheriff, justice of the peace, nor any person or persons possessed of any office of profit under the government of this state shall be entitled to a seat either in the senate or in the general assembly; but on being elected and taking his seat his office shall be considered vacant; and no person holding any office of profit under the government of the United States shall be entitled to a seat in either house."
The information filed February 17th, 1937, alleges that the respondent unlawfully occupies the office of recorder of Atlantic City because he also is a member of the house of assembly of the State of New Jersey; alleges that as such
recorder he is authorized to exercise the powers and duties of a justice of the peace in criminal cases (chapter 160, Pamph. L. 1933, p. 331, § 5) and that since justices of the peace, as such, expressly fall within the interdiction of the constitution, the continuance of the respondent in the office of recorder is in defiance of the constitution and illegal.
The plea of the respondent denies that he unlawfully holds said office; asserts that the office of recorder is a municipal office (chapter 107, Pamph. L. 1902, p. 337, § 110), and, further, that certain other persons in the past have held the office of recorder of Atlantic City although at the same time they were members of the legislature, and that these several persons occupied and fulfilled the duties of both offices simultaneously without question or objection; that in the case of the respondent he was elected an assemblyman from Atlantic county in 1934, was re-elected in 1935, and again in 1936; that in July, 1935, while an assemblyman, he was appointed recorder to fill an unexpired term, and that in 1936, he was appointed recorder for a term of three years.
The respondent, in his plea, points to eight instances in the last fifteen years where recorders of cities or towns, including Atlantic City, were, at the same time, members of the legislature; to seven instances where members of the legislature also occupied the office of mayor of the several municipalities in which they resided and, as such mayor, were invested with the power and authority of a justice of the peace under the statute and that the holding of both such offices went unchallenged and that, therefore, the ...