Diebert v. City of South Amboy

137 A. 647, 1 N.J. Misc. 543, 1923 N.J. Sup. Ct. LEXIS 62

• Court: Supreme Court of New Jersey
• Decided: November 7, 1923
• Status: Published

Opinion

Per Curiam.

The prosecutor, as “a citizen, freeholder and resident of the city of South Amboy,” by this writ of certiorari undertakes to attack the right of Reuben Forgotston to hold the office of police justice of that city. The points are made that an ordinance purporting to appoint Forgotston to that office was not legally passed and that the council was without' statutory power to make the appointment.

It is plain from the facts appearing in the case that Forgotston was appointed in 1920, qualified and occupied the office until December, 1922, when the council undertook, by the ordinance challenged, to reappoint him, and he is now in possession of the office and was in such possession at the time this writ was allowed. In this situation the present writ should be dismissed, as it is elementary that the only proper procedure to try title to a public office upon which the appointee has entered is by quo warranto. Clayton v. Freeholders, 60 N. J. L. 364; Miller v. Washington, 67 Id. 167; Layer v. Millville, 53 Id. 362 (at p. 365); Wygant v. Improvement Commission, 89 Id. 454, 458.

The writ will be dismissed, with costs.