On appeal from a judgment of the Supreme Court.
For the appellant, Chandless, Weller & Kramer (Ralph W. Chandless and Julius E. Kramer, of counsel).
For the appellee, John J. Breslin Jr., and James A. Major.
The opinion of the court was delivered by
HEHER, J. The appeal brings up for review a judgment entered in the Supreme Court on October 8th, 1942, awarding a peremptory writ of mandamus commanding the clerk of the County of Bergen to expunge from the ballot to be used at
the ensuing general election in the City of Garfield the name of appellant, John Frank, Jr., as a candidate for the office of mayor, conformably to a petition of nomination filed with the clerk. The writ was awarded by Mr. Justice Bodine on rule to show cause under R.S. 2:83-2, et seq.; and there was a subsequent "molding of the pleadings" in the form of an alternative writ of mandamus, a return thereto, a demurrer to the return and joinder in demurrer, and a rule sustaining the demurrer and allowing a peremptory writ of mandamus.
The inquiry is whether, at the time of the filing of the nominating petition, there was a prima facie vacancy in the office in question. If such was the case, it was the clerk's duty under the law to accept the petition and proceed with the election. In that event, the title to the office would be determinable in quo warranto after the election. It is not requisite that there be a judicial determination of a vacancy by means of this prerogative writ prior to the election. Oliver v. Jersey City, 63 N.J.L. 634. If there was not then a vacancy prima facie, it was the clerk's duty to reject the petition. As to the filling of a vacancy in an elective office of this municipality, see Comp. Stat., pp. 1372, 1374, §§ 2671 and 2680, as amended; saved from repeal by R.S. 40:107-1, 40:107-1 (17) and 40:107-1 (26). And there is also a general provision that, with certain exceptions not here pertinent, a vacancy occurring in a public office shall be filled at the next succeeding general election, unless it happens within twenty-five days next preceding such election, in which case it shall be filled at the second succeeding general election. R.S. 19:3-29. These provisions are the negation of a legislative intent to make a judicial declaration of forfeiture in quo warranto the sine qua non to the holding of an election to fill the vacancy.
The alternative writ reveals that at the general election held in November, 1941, one John M. Gabriel was duly elected mayor of Garfield for the term of two years commencing January 1st, 1942; that he qualified as required by law, "and has not resigned the said office and is still in possession" of it; and that appellant had in due season filed a petition with the clerk of the County of Bergen, "asking that his name be
placed on the ballot for the general election to be held in November, 1942, as a candidate for the office of mayor."
The return concedes the election and qualification of Gabriel as mayor, but alleges, inter alia, that "he vacated his said office and disqualified himself by accepting on January 23d, 1942, a commission as a lieutenant in the Army and by being assigned to active service in said Army as such lieutenant at Fort Eustis, Virginia, where he has continued to be and serve from that time up to the present time, thereby resulting in a vacancy in" the municipal office, in that he "was unable to serve as mayor * * * and disqualified himself from further holding" the office "through his acceptance of an incompatible office so that by law it was required that the office of mayor be filled by an acting mayor until the next general election at which time a successor was required to be elected for the unexpired term."
Thus, there is invoked the common law rule that one cannot hold two incompatible offices at the same time, and that acceptance of the second of such offices ipso facto constitutes a vacation of the first. State v. Parkhurst, 9 N.J.L. 427; State, ex rel. Clawson v. Thompson, 20 Id. 689; Oliver v. Jersey City, 63 Id. 96; affirmed, Id. 634; Lofland v. Hilton, 80 Id. 528; In re Opinion of the Justices, 307 Mass. 613; 29 N.E. Rep. (2 d) 738; People, ex rel. Ryan v. Green, 58 N.Y. 295; Stubbs v. Lee, 64 Me. 195; State v. Brown, 5 R.I. 1; Haymaker v. State, ex rel. McCain, 22 N.M. 400; 163 Pac. Rep. 248; L.R.A. 1917D, 210. Concededly, the acceptance of the military commission did not ...