State ex rel. Campbell v. Champion

I am asked to vacate a consent heretofore granted by me for leave to exhibit an information in the nature of a quo warranto in that it is urged that it was improvidently granted and also that the information be stricken out, in that the proceeding is not warranted by section 1 of the Quo Warranto act, under which, concededly, it was instituted.

The exact contention is that by the proceeding in question the relators are attacking the existence of an office or offices and not merely the right of the incumbent respondents to occupy and hold the same.

The contention of relators appears to be that an election, held in Ocean City on May 10th, 1927, was held pursuant to tire provisions of chapter 221, Pamph. L. 1911, and its supplements and amendments, and should have been held under Pamph. L. 1934, p. 319. The difference being that under the latter act a mayor and four commissioners should have been chosen, while under the former act three commissioners only were chosen; that such election was a nullity and the commissioners holding office prior to such election held over, and relators are two of such persons. Steelman v. Vickers, 51 N. J. L. 180; Gibbs v. Somers Point, 49 Id. 515; Holloway v. Dickinson, 69 Id. 73; Moore v. Seymour, 69 Id. 606, and Morris v. Pagan, 85 Id. 617, cited by respondents, definitely lay down the rule that a proceeding such as this does not lie in the hands of an individual to attack the existence of the municipal corporation under which or by the power vested in which an office or offices is or are created.

Prom the facts before me, however, the proposed attack of relators does not appear to be in that direction, but rather, as before stated, the election of 1937 being a nullity, they held over as commissioners and all or some of the respondents have intruded into, usurped and are occupying offices that relators are entitled to occupy.

The application to vacate and strike out is therefore denied.