On information in the nature of quo warranto.
For the relator, Frank I. Casey.
For the defendant, William Reich.
Before Brogan, Chief Justice, and Justices Donges and Porter.
The opinion of the court was delivered by
PORTER, J. To the information, in the nature of a quo warranto, the respondent filed a plea to which issue was joined by demurrer of the relator.
The relator, Mr. Devlin, claims to be entitled to retain the office of police justice of the city of Trenton to which post he had been appointed on February 17th, 1937, by the city council for four years and from which he has been excluded since June 1st, 1939. In 1937, it appears that the city was being governed under the municipal form of government with a city manager; that on April 11th, 1939, by referendum vote, the commission form of government, the "Walsh act," was adopted; that pursuant thereto, on May 16th, 1939, an election was held and a board of five commissioners were duly elected; on June 1st, 1939, after previously organizing, a resolution was adopted distributing the executive, administrative, judicial and legislative powers, authority and duties, into and among the five departments. At that meeting the authority over the Police Courts was assigned to the department
of public safety. On June 8th, 1939, the director of that department appointed Albert Cooper, Jr., defendant, police justice to the exclusion of the relator.
The relator takes the position that this action was void and of no effect; that his term did not cease and determine on June 1st, 1939, but continued for the term for which he was appointed, until February 16th, 1941. He also attacks the legality of the appointment of the defendant claiming that the authority to appoint was in the board of commissioners as a body and not vested in the director of public safety, so that the appointment was a nullity. This point need not be considered in view of the decisions that the relator must establish his own right to the office, and the infirmity of defendant's title is of no benefit to him. The burden is on him to establish his own right to the office. Salter v. Burk, 83 N.J.L. 152; McGlynn v. Grosso, 114 Id. 540; Murphy v. Cuddy, 121 Id. 209.
It appears that the city of Trenton at the time of relator's appointment, and since, has been operating under the Civil Service law. Under the provisions of that law the office of police magistrates are in the unclassified service. R.S. 11:22-2G.
The sole question for our consideration is whether the term of office of relator terminated on June 1st, 1939, when the new government became fully organized. We conclude that it did not. The Walsh act was enacted in 1911. Under its terms, R.S. 40:71-9, when such change in the form of Municipal Government becomes effective, all terms of those in office, "whether elective or appointive, shall immediately cease and determine" and their powers and duties shall "pass to, vest in and be performed by the board of commissioners elected under the provision of said chapters 70-76." It is also provided in the same section as follows: "Nothing herein contained shall be construed to affect in any way the term of any policeman, fireman, or other member of any police or fire department, veteran of any war, or ...