Harris v. Corker

97 A. 893, 89 N.J.L. 31, 4 Gummere 31, 1916 N.J. Sup. Ct. LEXIS 64

• Court: Supreme Court of New Jersey
• Decided: June 6, 1916
• Status: Published

Opinion

The opinion of the court was delivered by

Swayze, J.

The relator claims the office of custodian of the Bergen county court house by virtue of an election pursuant to chapter 365 of the laws of 1915. This act applies only to counties having between one hundred and two hundred thousand inhabitants, where a court house has been erected in pursuance of the act of March 19th, 1901, which has .not adopted or does not hereafter adopt the Civil Service act of 1908. This is a triple classification. The act does not apply to all counties having between one hundred and two hundred thousand inhabitants; nor to all counties that adopt the act of March 19th, 1901; nor to all counties that fail to adopt the Civil Service act. It seems likely that the three qualifications were united in order that the act might apply to Bergen county alone. Such a classification has already been condemned. State v. Riordan, 75 N. J. L. 16.

It is argued by the relator that he may claim a position-under the act of 1910. Comp. Stat., p. 521, pl. 167. The answer is: (1) his information claims an office, not a position; (2) quo warranto is not the proper remedy if in fact it is a mere position. We cannot sustain the plaintiff’s claim to something not within the pleadings, nor can we on quo warranto adjudicate the claim of the defendant to a mere position. If the relator’s claim that the place is a mere position were correct, nothing eoiild be done in this present proceeding. We find there has been no ouster and there must be judgment for the defendant.