On respondent's rule directing relator to show cause why judgment of ouster by default in quo warranto should not be vacated.
For the relator, William George.
For the respondent, William Rubin.
Before Justices Trenchard, Case and Heher.
The opinion of the court was delivered by
HEHER, J. On November 28th, 1939, relator filed an information in the nature of a quo warranto averring, inter alia, that respondent McCurnin had usurped the office of "Supervisor of Auto-Buses" of the city of Bayonne, rightfully belonging to relator, and praying for process directing him to show "by what warrant he claims to hold, use and enjoy" the franchise. There was a rule to plead. The plea was not interposed until three days after the expiration of the time limited. On that very day, the clerk, on relator's motion, entered a rule for judgment final adjudging that relator was "rightfully entitled to the office" in question, and to immediate possession and enjoyment thereof, and directing the ouster of respondent. On December 16th ensuing, the instant rule to show cause was allowed.
The motion to vacate the judgment is addressed to the sound discretion of the court; and in the circumstances we should deem it our duty to award such relief were it not that the proofs reveal the judgment is well-based on the merits. Apart from the inherent power of the court to open a default judgment, if its enforcement would defeat the ends of justice as regards the individual litigants, the public interest demands that controversies respecting title to public office be adjudicated
on the merits to the end that an intruder be ejected. Vide Anderson v. Meyers, 77 N.J.L. 186.
On July 11th, 1919, the Board of Commissioners of the City of Bayonne (a commission-governed municipality), presumably in the purported exercise of the authority conferred by article XV, section 1, of chapter 152 of the laws of 1917, as amended by chapter 252 of the laws of 1918 (Pamph. L. 1917, pp. 319, 358; Pamph. L. 1918, p. 958; now R.S. 1937, 40:52-1 et seq.), adopted an ordinance entitled "An Ordinance to Regulate and Control the Maintenance and Operation of Auto-Buses and Jitneys." There is no contention that this local legislative action was ultra vires; the grant of power so to legislate is not denied. The ordinance lays down an elaborate scheme for the regulation and control of such vehicles. An operating license is prescribed, conditioned, inter alia, upon the provision of a liability insurance policy for a designated sum. The vehicular operator is required to be of good character and in sound health, and possessed of the skill and ability requisite for safety in the operation of the vehicle upon the highways. It is provided that the licensed vehicle shall be "mechanically perfect and without faulty construction." Operating rules are set out at length. And there is a levy upon gross receipts as "a monthly franchise tax for revenue for use of the city." Originally, the Director of Revenue and Finance was directed to appoint a "supervisor to manage and control all auto-buses and jitneys and drivers of auto-buses and jitneys;" and such supervisor was clothed with "each and every power" therein "granted to the Director of Revenue and Finance to control, regulate and manage all auto-buses and jitneys," and with authority to "appoint as many inspectors of auto-buses and jitneys and of drivers of auto-buses and jitneys with the approval and consent" of the director "as he shall deem necessary and advisable." The supervisor and inspectors were invested with "full police power." There was no term prescribed for either the supervisor or the inspectors.
The parties seem to be in agreement that thereby an office in the legal sense came into being. The information so treats it, and respondent acquiesces in that view. It is likewise
termed in the stipulation of facts introduced on this motion "in the event" that the court "will hear arguments on the merits * * *." And it would seem that it is properly classable as an "office" in legal intendment. Conceding the State's grant of such authority, the place thus created is of kin to the municipal superintendent of ...