The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1894-01-19
Mr.. FRASER OUSTED.
Full Text of the Decision
in the Quo Warranto
Proceedings.
OPINION BY CHIEF JUSTICE BEASLEY.
Pointed Reference to the Peterson
and Kelly Proceedings
An Outrageous Prop


The opinion of the Supreme Court in the
quo warranto proceedings of the State ex-
rel John Edelstein versus John D. Fraser
was delivered by Chief Justice Beasley.
Senator W. D. DAILY appeared for Edel-
stein, while Fraser's interests were looked
after by Messls Collins and Corbin
In a proceeding by information in the
nature of quo warranto it is the title of
the defendant that is alone put in issue.
The statute of March 10, 1898, declares
that in all cases in any city in which the
Mayor can appoint any municipal officer, no
such appointment shall take effect until
the Board of Finance shall have
confirmed the same ''by a vote
of not less than two-thirds of all
the members of such board The informa-
tion alleges that it-through the Mayor of Jer-
sey City-did appoint the defendant a mem
ber of said Board of Finance; and although
the defendant thereupon took the oath OF
office and his seat in said board, and was
recognized by majority of the members of
said board, the relator alleges that the ap-
pointment of the said defendant was of no
effect because the same ''has not been. con-
fImed by said Board of Finance" On de-
murrer to this information-held by four of
this demurrer-the defendant acknowledged
that he was not in Office de .Jure, and that
Judgment by custer must be entered against
i'm.
THE DECISION.
The full text of the decision is as fol
lows
''This controversy touches the right of
membership in the Board of Finance OF
Jersey City. The discussion has arisen on a
general demurrer to the information. And
upon looking at this record / have failed to
find any basis for the argument with which
we have been favored by counsel for the de-
fendant
1.-The case as presented stands before us in
this wise.
1.-The information contains two. counts, the
tenor of the first being to this effect. viz. =
That the defendant Fraser for the space of
ak days and upward last past, hath unlaw-
fully held, used and executed, and still doth
unlawfully hold, use and execute, the office
of member of the Board of Finance etc
The count then proceeds to set out the
relator's title, which lis that on the
twenty fourth day 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 unlaw-
fully held, used and enjoyed and exercised
and yet doth usurp intrude into, ETC., to the
exclusion of the said John Edelstein, ETC., in
contempt of the State of New Jersey
THE DEMURRER
'iThe demurrer as applied to this court
confesses that the defendant without pre-
tence of right usurped this Office and still
holds in, hat low fll If does
not seem that any argument in favor OF the
defendant can be other than futile in view
of such confession. 1t has not been OBJ
served that the title of the narrator dis
closed in this court is at all Objectionable,
but that titie, be it good or bad, is not open
on these. pleadings to objection. These
proceedings do not have the effect to put the
narrator in office; his rights, therefore, are
of no consequence, 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 in
stance, as the defendant acknowledged that
he is holding the Office in question without
right. Nor does it seem that the second
count presents any matter more delataple'
As in the first count it shows title in
the relator and similarly an intrusion by the
defendant and its diversity consists
in this circunlStance:-sAfter setting out the
usurpation of the defendant it thus proceeds,
namely, "For although true it is that the
mayor OF Jersey OlDy, Ab OT pelOte, cVC., ulo
appoint the said John d. Fraser member
of the said Board of Finance to succeed the
said reiator, and that said John d.. Fraser
took and subscribed before the City Clerk OF
Jersey City, in due form of law, the oath OF
office required by and for members of the
Board of Finance, and took his seat in said
board as a member thereof and entered upon
the duties of a member of the Board of FL
nance of Jersey City, yet the said relator
gives the Court hereto to be Informed and
understand that said appointment is hitherto
of no effect because the same has not
been confirmed by the said Board of FL
nance"
WHAT THE DEFENDANT ADMITTED.
'sFrom the foregoing extract it will be OBJ
served that the effect OF the demurrer as ap-
piled in this latter instance is to admit that
The defendant is now exercising the office in
question without his appointment having
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
March 10, 1893, enacts as follows:-sThat in
every case in any city where the Mayor
thereof is now authorized by law to appoint
any municipal officer or member OF any
municipal board the name of the person ap-
pointed shall be submitted to the board OF
such city government having control OF OF
the financial affairs and the duty and
power of confirming the annual tax levy or
budget, by ordinance or otherwise, by what
ever maine the same may be known, N sucn
city, and no such appointment shall take
effect until such board has confirmed the
same by vote of not less than two-thlrds
of all the members of such board duly re-
corded in the permanent minutes thereof :
the act Just recited declares in clear and un-
ambiguous terms that the appointment OF the
defendant shall not take place until con-
firmed by the board in the manner pre-
scribed.
NO CONFIRMATION.
The demurrer 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 jatre And yet that is the only
question to be decided in this case as 1t
is presented to us. In procedure OF this
character when the defendant acknowledges
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 conirmative vote OF two
third of the Board of Finance does not pro-
perly mean the two members who retain
annually are to be counted as constituents
of the board for that occasion. 1t is only
necessary to remark that such question is
,Itterly deshors this record. There is no
avsrment of statement in the case relating
to that subject. All that we are apprised of
is that there was no confirmation in any
Form of this board. Whether it be by board
constituted of three voting members or five.
OUTRAGEOUS PROPOSITION
,ssWith respect to the suggestion in brief