On appeal from a judgment of the Supreme Court.
For the defendants-appellants, Samuel Iredell and David L. Horuvitz.
For the prosecutor-respondent, Francis A. Stanger, Jr., and Robert G. Howell.
The opinion of the court was delivered by
DONGES, J. This is an appeal from a judgment of the Supreme Court, entered on order of Mr. Justice Porter, who determined the matter sitting alone. Prosecutor-respondent, Leonard D. Stevenson, brought certiorari upon the claim that he was the incumbent of the office of tax collector of the city of Bridgeton and that his possession of the office was threatened by action of the governing body.
On January 1st, 1936, Stevenson was elected collector for a term of three years. This was the term fixed by the act concerning second class cities, Comp. Stat., p. 1403 (at p. 1420),
which act is referred to in the briefs as the Charter act of the city of Bridgeton. There was approved on June 5th, 1936, to be effective December 1st, 1936, chapter 141, Pamph. L. 1936, p. 332, which extended the term of tax collectors in all municipalities except those having a population in excess of three hundred thousand to five years, and by its terms applied to incumbents in office. This act was omitted from the Revision of 1937, but there was included in that Revision as 40:46-6.1, chapter 142 of the laws of 1937, which fixed a term of office for collectors in all municipalities of four years for all such collectors appointed or elected after June 2d, 1937. The so-called Charter act (Comp. Stat., p. 1403), was saved by repeal, and thus in effect re-enacted in R.S. 40:106-1, together with a stated list of amendments and supplements.
Prosecutor had at the commencement of his term posted a bond for a period of three years, and on January 2d, 1939, tendered a bond for a further period of two years, which was rejected.
On January 2d, 1939, at the annual reorganization meeting, city council, taking the position that prosecutor's term was for three years and had expired, elected one Frank E. Hoagland as collector. He took the qualifying oath and filed a bond. His term was fixed at three years, which would seem to be in contravention of R.S. 40:46-6.1, above mentioned. Prosecutor declined to surrender the office and brought certiorari, resulting in judgment in his favor.
The first point is that the act of 1936, chapter 141, under which prosecutor claims a five-year term is no longer the law, and that, therefore, prosecutor acquires no right thereunder and his term of office ended at the expiration of three years from the date of his election in 1936. If there be any doubt on this question, it seems to be set at rest by the provision in R.S. 1:1-12 that "No office, position or employment, created and existing at the time when the Revised Statutes shall become effective, under or by virtue of any statute then in force, shall be abolished nor shall the tenure, term or salary of any incumbent thereof be in any manner affected by the enactment of the Revised Statutes."
Appellant's next point is that certiorari is not the available remedy because prosecutor is not shown to be lawfully entitled to the office. In Bradshaw v. City Council of Camden, 39 N.J.L. 416, the leading case on the subject in this state, Mr. Justice Van Syckel said: "If the title of a claimant in possession of the office was to be tried, it would be necessary to resort to a quo warranto, but the relator in this case being in possession of the office, the proceedings taken by the common council, threatening to disturb him in the enjoyment of it, can be reviewed only by certiorari. The object of prosecuting quo warranto, is to have one in possession adjudged guilty of usurpation. The plaintiff in this case sues for no such end; his only purpose is to remove from his way a proceeding which he apprehends may be used unlawfully to eject him." See Moore v. Bradley Beach, 87 Id. 391, and Murphy v. Freeholders, 92 Id. 244, in which Moore v. Bradley Beach, which followed and approved ...