State ex rel. Maloney v. MacDonald

Pee Ctjeiam.

This proceeding is before the court upon a rule to show cause why leave should not be granted to relator to file an information in the nature of quo warranto to test the defendant’s right to the office of member of the council of the borough of Fort Lee, Bergen county. The borough of Fort Lee is incorporated under the General Borough act and its various amendments and supplements. It is governed by a mayor and council normally consisting of six members. One of the members of the council, Louis F. Hoebel, whose term as a councilman would, not have expired until January 1st, 1931, was elected maj^or at the general election of 1929. On January 8th, 1930, he relinquished his office as councilman and qualified as mayor, leaving five members still in the council. The relator is a taxpayer of the borough and one of the remaining five members of council. Forthwith, after filing his oath of office, Mayor Hoebel appointed the defendant, Alexander MacDonald, to fill the vacancy on the borough council. On this appointment two of the councilmen voted in the affirmative and two in the negative; whereupon the mayor voted in the affirmative and declared the nomination carried. MacDonald was then sworn in as a member of the council, filed his oath of office and assumed his seat.

It is contended by the relator that this appointment to fill the vacancy in the council was not lawfully confirmed. We consider that there is a fairly debatable question presented and that the relator should be given leave to file the information. The rule is made absolute.