This is a proceeding in lieu of prerogative writs instituted by plaintiff Loretta Haack seeking to oust defendant Rudolph Ranieri as councilman from the first ward of the City of Hoboken and to be granted said office herself for the reasons hereinafter set forth.
The parties have stipulated that the depositions, interrogatories, affidavits and other exhibits filed in this matter be considered in lieu of other testimony. Both parties have rested their cases.
On May 14, 1963 defendant defeated plaintiff and the incumbent councilwoman, Loretta Haack, in the councilmanic elections in the first ward of Hoboken. That election was never contested under N.J.S.A. 19:29-1 et seq. Ranieri assumed office on July 1, 1963 and has acted as councilman from the first ward until the present time.
This proceeding was brought by Mrs. Haack in November 1963, more than six months after the election. The complaint
alleges that Ranieri, prior to February of 1963, improperly registered as a resident of 129 Washington Street, Hoboken, New Jersey, when in fact he actually resided at 16 Bond Place, Weehawken, New Jersey. Plaintiff contends that any transfer in registration based upon the improper initial registration is defective, which defect renders defendant ineligible for office. Plaintiff further alleges that from February 1963 until after the election defendant never acquired an actual domicile in Hoboken, although he purported to live at 100 Bloomfield Street, Hoboken.
Defendant, on the other hand, contends that he was continuously a legal resident of Hoboken from 1952 to the present time, residing at 129 Washington Street, Hoboken, from September 1952 until January 1963, when he moved to 100 Bloomfield Street in that city. In late June 1963 he moved into his present residence at 226 Hudson Street, Hoboken. Defendant further contends that even if the court finds he was not a legal resident of 129 Washington Street, his registration at 100 Bloomfield Street is, nevertheless, valid. He also contends that plaintiff is barred by the time limitations of R.R. 4:88-15 and by laches. He asserts, moreover, that plaintiff cannot show title to the office in herself and is thus without standing to bring the action under N.J.S. 2A:66-8. He predicates his attack on plaintiff's title to the office on the fact that she did not receive a plurality of the votes cast and that she abandoned any claim as a holdover officer when she surrendered the office to him without protest.
I. STANDING OF THE PLAINTIFF TO BRING THIS ACTION
There are two sections which govern proceedings in lieu of the former prerogative writ of quo warranto. N.J.S. 2A:66-6 gives the right to bring the action to anybody who under the former practice would have had the requisite interest to exhibit an information in the nature of a quo warranto with leave of the court. This section now allows the bringing of an action as of right and dispenses with the allocatur formerly
required from the court. N.J.S. 2A:66-8 allows a de jure claimant to an office to bring an action to oust a usurper. This, concededly, is the section under which Mrs. Haack is proceeding.
The distinction between the two sections can be grasped from the discussion of their predecessor statutes (R.S. 2:84-1, R.S. 2:84-7) in McGuire v. DeMuro , 98 N.J.L. 684 (Sup. Ct. 1923), and in the State ex rel. Williams v. Godfrey , 11 N.J. Misc. 283, 165 A. 724 (Sup. Ct. 1933).
In the recent case of Demoura v. Newark , 74 N.J. Super. 49 (App. Div. 1962), the court held that a proceeding in the nature of quo warranto involving a municipal office or position must, under the former practice as well as now, be brought by a citizen and taxpayer of the city, unless he himself is a claimant to the office.
Mrs. Haack does not contend to represent the public, but she does claim title to the office held by defendant. Plaintiff, under N.J.S. 2A:66-8, must show title in herself before the court in this action can properly inquire by what authority defendant holds office, and plaintiff's failure to show such title is fatal to the action. Manahan v. Watts , 64 N.J.L. 465 (Sup. Ct. 1900); Florey v. Lanning , 90 N.J.L. 12 (Sup. Ct. 1917); McCarthy v. Walter , 108 N.J.L. 282 (E. & A. 1931); Toomey v. McCaffrey , 116 N.J.L. 364 (Sup. Ct. 1936); Murphy v. Cuddy , 121 N.J.L. 209 (Sup. Ct. 1938); McGlynn v. Grosso , 114 N.J.L. 540 (Sup. Ct. 1935); Colton v. Kreutzinger , 116 N.J.L. 456 (Sup. Ct. 1936), affirmed 118 N.J.L. 183 (E. & A. 1937); Devlin v. Cooper , 124 N.J.L. 155 (Sup. Ct. 1940), affirmed 125 N.J.L. 414 (E. & A. 1940); Morgan v. Mayor and Council of Borough of Roselle Park , 129 N.J.L. 233 (Sup. Ct. 1942).
There is some authority to the contrary, holding that such a proceeding has a duel aspect and that the public interest could require a judgment of ouster where neither the relator nor the respondent was entitled to the office. Hawkins v. Cook , 62 N.J.L. 84 (Sup. Ct. 1898); Anderson v. Myers ,
77 N.J.L. 186 (Sup. Ct. 1908); Bullock v. Biggs , 78 N.J.L. 63 (Sup. Ct. 1909); Dunham v. Bright , 85 N.J.L. 391 (Sup. Ct. 1914); Bonynge v. Frank , 89 N.J.L. 239 (E. & A. 1916).
However, this court is convinced that the correct rule requires that plaintiff show title in herself as a necessary condition precedent. This is borne out by recent decisions of our court. In Burke v. Kenny , 9 N.J. Super. 160 (App. Div. 1950), the court said:
"There are certain features of this case which prompt us to state preliminarily that although prerogative writs have been superseded and a simplified procedure has been adopted 'in lieu thereof' (Rule 3:81-1), yet in an action, such as this, prosecuted under the authority of R.S. 2:84-7, N.J.S.A. , the plaintiff alleging himself to be lawfully entitled to the office must assume the burden of proving his right to the office and the validity of his own title to it. The weakness or invalidity of the title of the incumbent does not supply any strength to the plaintiff's cause of action." (at p. 163)
See also Monte v. Milat , 17 N.J. Super. 260 (Law Div. 1952), by Mr. Justice (then Judge) Proctor, to the same effect. A comprehensive development of our quo warranto statutes can be found in 6 Newark L. Rev. 163 (1941).
Mrs. Haack claims title to the office on two theories: (a) as the qualified candidate with the next highest number of votes to those cast for the allegedly ineligible defendant, and (b) as a holdover officer whose successor allegedly never qualified.
(a) Plaintiff's claim as a minority candidate
The first ground of Mrs. Haack's claim is untenable. In an early but nevertheless well-reasoned opinion in Chandler v. Wartman , 6 N.J.L.J. 301 (Cir. Ct. 1883), the court held that a minority candidate is not elected, whether his opponent be eligible or not. That was an election contest wherein the plaintiff claimed that defendant Wartman, who received the highest number of votes, was ineligible at the
time of the election because of lack of citizenship. The court found that defendant was eligible, but it held, further, that even if plaintiff were correct in his assertions, the court could not declare him elected since he did not have the highest number of votes. This opinion is in keeping with the majority rule in other jurisdictions. The rule is set forth in Annotation, "Elections -- Dead or Disqualified Candidates," 133 A.L.R. 319, 320-321, as follows:
"The general rule is that votes cast for a deceased, disqualified, or ineligible person, although ineffective to elect such a person to office are not to be treated as void or thrown away, but are to be counted in determining the result of the election as regards the other candidates * * *.
The rationale of this rule is further set out in the annotation at page 323, quoting from the case of Saunders v. Haynes , 13 Cal. 145 (Sup. Ct. 1859):
"An election is the deliberate choice of a majority or plurality of the electoral body. This is evidenced by the votes of the electors. But if a majority of those voting, by mistake of law or fact, happen to cast their votes upon an ineligible candidate, it by no means follows that the next to him on the poll should receive the office. If this be so, a candidate might be elected who received only a small portion of the votes, and who never could have been elected at all but for this mistake. The votes are not less legal votes because given to a person in whose behalf they cannot be counted; and the person who is next to him on the list of candidates does not receive a plurality of the votes because his competitor was ineligible. The votes cast for the latter, it is true, cannot be counted for him; but there is no reason why they should, in effect, be counted for the former, who, possibly, could never have received them. It is fairer, more just, and more consistent with the theory of our institutions, to hold the votes so cast as merely ineffectual for the purpose of an election, than to give them the effect of disappointing the popular will, and electing to office a man whose pretensions the people had designed to reject."
New Jersey courts have used this approach in interpreting other election statutes. In Rose v. Parker , 91 N.J.L. 84 (Sup. Ct. 1917), the relator ...