The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1894-02-13
John d. Fraser.

MeSSrS. Collins q COTDln LOT OSIcnudllt.
The opinion of the Court was delivered by
Beas., Oh. Jus. This controversy touches
the right of membership in the Board OF FL
nance of Jersey City. The discussion has
arisen on a general demurrer to the Informal
ton. And upon looking at this record
have failed TO find any basis for the argyll
ment with which we have been favored by
the counsel of the defendant. The case as
presented stands before US in this wise. The
information contains two counts. The tenor
of the first being to this effect, viz: That
the defendant Fraser for the space OF six
days and upwards last past, hath unlawfully
held, used and executed, and still doth un-
lawfully hold, use and execute the office OF
member of the Board of Finance. etc. The
Court then proceeds to set out the realtors
title, which is that on the gath OF April,
1891, he was duly and legally appointed by
the Mayor of Jersey City a member OF said
Board for the term Of two years, and that he
took the oath Of Office, was duly qualified and
duly exercised said Office. which said Office
the said John D. Fraser during,
etc., upon the State of New Jersey hath
usurped and intruded into and unlawfully
held. used. enjoyed and exercised, and yet
doth usurD and intrude into, etc, to the ex-
CIuSlOQ OF JOnl EuClStClu, CtCss III SOhlSiHPL
of the State of New Jersey, etc.
The demurrer as applied to this Court
confesses that the defendant, without a
pretense of right, usurped this office and
still holds it in that unlawful manner" 1t
does not seem that any argument in favor OF
the defendant can be other than futile in view
of such a confession. 1t has not been OBJ
served that the title of the narrator disclosed
-. ~ - 49, I Nt.A,%sN~oh1n ht1f fhof
title, be it good or bad. is not open on these
pleadings TO objections. These proceedings
do not have the effect to put the narrator into
office, his rights, therefore, are OF no conse-
quence, except so far as they may serve to
qualify or explain the right of the defendant.
They can have no such effect, nor any effect
whatever in the present instance as the tte-
PENDANT acknowledges that he is holding 1.-THE
Office in question without right.
Nor doesit seem that the second Count
presents any matter more debutable. As in
the first count it shows title in the %relator,
and similarly an intrusion by the defendant,
and its diversity consists in this circum-
stance. After sitting out the ~usurpation OF
the defendant it thus proceeds. viz: For
although true it is that the Mayor of Jersey
City, at or before, etc. did appoint the said
John D. Fraser a member of the said Board
of Finance to succeed the said relator. and
the said John d. Fraser thereupon took and
subscribed before the City Clerk of Jersey
City in due form of law the oath of office re-
quired by law for members of the Board of
Finance, and took his seat in said Board and
was recognized by a majority OF the members
of said Board as a member thereof and en-
tered upon the duties of a member of the
Board of Finance of Jersey City, yet the said
relator gives the Court here TO be informed
and understand that said appointment is
hitherto of no effect, because the same has
not been confirmed by said Board of FL
nance. From the foregoing extract it will
be observed that the effect of the demurrer
as applied in this latter instance is to admit
that the defendant is now exercising this Of
fee in question without his appointment hav-
ing been confirmed by the Board of Finance.
BY this confession he admits that he is an in
truder, for the Statute of the State passed
10th March, 1898, enacts as follows, viz:
THAT in every case in any city where the
Mayor thereof is now authorized by any law
to appoint any municipal officer, or member
of any municipal board. the name of the
person appointed shall be submitted to the
board of such city government having the
control and management of the financial at
fairs, and the duty and power of confirming
the annual tax levy or tax budget, by ordin-
ance or otherwise. by whatever name the
same may be known in such city, and no
such appointment shall take effect until such
board has confirmed the same by a vote of
not less than two-thirds of all the members
of such board duly recorded in the perman-
ent minutes thereof.
The ~juncture there is this; the act just re-
cited declares in clear and unambiguous
terms that the appointment of the defendant
shall not take effect until confirmed by the
Board in the manner prescribed. The de-
murrer admits the allegation that there has
been no confirmation and, most assuredly,
thereby the defendant confesses that he has
no claim to be considered an officer de jure.
And vet that is the only question to be de-
cided in this case as it is presented. to us.
If a procedure of this character, when the
defendant acknowledges that he has no legal
title, the inevitable result is that judgment
of custer must pass against him.
With respect to the argument that the act
requiring a conhrmatiye vote of two-thirds
of the Board Of Finance does not properly
mean that the two members who retire an
nually are to be counted as constituents of
the Board for that occasion, it is only neces-
sarv to remark that such question is utterly
de hors this record.
There is no averment or statement in the
case relating to that subject. All that we
are appraised of is that there was no confr-
nation in any form by this Board, whether
it be by a Board constituted of three mem
bers or of Ave. With respect to the sugges-
ton in the brief of counsel that for the pur-
poses of this case the Court will look into
the W. other quo warranto proceedings re-
lating to this general subject now on the files
of this Court between other parties, it is
only necessary to say that the proposition is
opposedsto everything that can be found in
the annals of the common law from the Nor
mar Conquest to the present hour.
Let judgment of custer be entered.
The following communications were also
presented.
TO the Honorable Board of Finance of
jersey City:
Gentlemen, II herewith enclose judgment,
of oustsr in the case the State ex rel John
Edelstein VS.. John D. Fraser, lately recov-
cred in the Supreme Court of this State. by
which judgment Mr.. Fraser is no longer a
member of your honorable body. / now ask
that Mr.. Edelstein be permitted without fur
Their trouble to take possession of the office
which was unjustly withheld from him so