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Burnson v. Evans

Decided: August 18, 1948.


On rule to show cause why a peremptory or alternative writ of mandamus should not issue.

For the relator, Harry L. Shure.

For the respondent, Alton V. Evans, pro se.

Before Justices Bodine, Heher and Wachenfeld.


The opinion of the court was delivered by

HEHER, J. The Civil Service Commission held a competitive examination in the classified service under R.S. 11:1-1, et seq., to fill a vacancy in the clerkship of the District Court of the Second Judicial District of the County of Monmouth. Relator was the first of the three eligibles certified to the judge of the court, as the appointing authority; one Roy Bowman was second. The former has the status of a disabled war veteran, and is entitled to the statutory priority as such, unless otherwise disqualified. Pamph. L. 1946, ch. 227, p. 837, amending R.S. 11:27-3, 11:27-4, 11:27-5. The latter is a war veteran without a record of disability incurred in the line of duty. One of the qualifications prescribed by the Civil Service Commission for admission to the examination was residence in the territory comprising the judicial district. Relator was then and is now a resident of the Borough of Interlaken; and on the assumption that this municipality was not, at the time of the examination, and is not now comprised in this judicial district, and under R.S. 11:22-7 relator was therefore ineligible, Judge Evans appointed Bowman to the clerkship. Contending that the findings of the Civil Service Commission are immune from collateral attack, and the designation thus made violates what he conceives to be a peremptory right under the statute, relator seeks a writ of mandamus commanding his appointment to the clerkship, now in the possession of Bowman, who is exercising the functions charged by law upon the incumbent. Bowman has not been made a party to the proceeding.

The point of residence arises thus: This judicial district was established by chapter 39 of the laws of 1913. Pamph. L., p. 67. The territory embraced in the district included the Township of Ocean. In 1922, the Borough of Interlaken was incorporated from territory within the boundaries of the Township of Ocean. Pamph. L. 1922, ch. 65, p. 118. By an amendment of the act of 1913, adopted in 1925, the territorial boundaries of this judicial district were delineated anew to include nine additional municipalities, eight of which were incorporated long before the passage of the act of 1913, and one thereafter, although other subsequently incorporated

municipailties besides the Borough of Interlaken were omitted. The Township of Ocean was included within the revised jurisdictional area, but there was no mention of the Borough of Interlaken, which was no longer a part of the township. Pamph. L. 1925, ch. 129, p. 352. There were twenty-eight municipalities of the county not included in either the first or the second judicial districts when this revision of boundaries was made. In the Revision of 1937, the territorial jurisdiction of this judicial district was continued as theretofore. Chapter 39 of the laws of 1913, as amended by chapter 129 of the laws of 1925, was saved from repeal. The municipalities comprising the district were again enumerated; but the Borough of Interlaken was not included. R.S. 2:8-4, 2:8-5, 2:8-6.

The relator has misconceived his remedy. The clerkship in question is an office. It is so denominated in the statute. The District Courts are courts of record. The statute directs that the clerk "shall hold office during the pleasure of the appointing judge or until the appointment or qualification of his successor;" and he is required to take an oath to perform the duties of his "office." R.S. 2:8-8, 2:8-18, 2:8-19.

Under the present judicial system, the title of a claimant in possession of an office is triable only by quo warranto. When an office is full de facto, the incumbent claiming it under color of right, quo warranto and not mandamus is the proper remedy to test the claimant's title. And an office is deemed full de facto whenever a person elected has been admitted to it, whether the election was or was not of such a character that it could be supported by law, unless there is illegality of the election, by virtue of which the incumbent gained entrance to the office, which is not "consistent with honesty of purpose. Elections based upon mistakes of fact or misconceptions of law may impart a color of right which will bar the allowance of a mandamus, but palpable disregard of law renders the action by which an office is seized merely colorable, and, in a clear case, will be brushed aside as affording no obstruction to the exercise of a plain legal duty." Leeds v. Atlantic City, 52 N.J.L. 332. Lord Mansfield suggested that the proper inquiry is whether the election was

merely colorable and clearly void, in which event mandamus is allowable. Rex v. Bankes, 3 Burr. 1452. The object of prosecuting an information in the nature of a quo warranto is to have the possessor of the office adjudged guilty of usurpation and ousted. Bradshaw v. City of Camden, 39 N.J.L. 416. Where the incumbent of an office was ineligible at the time of his appointment, the proper method to oust him is by quo warranto. Magner v. Yore, 75 Id. 198; Shibla v. Wall Township, 136 Id. 506. And ...

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