Opinion
No. 39/402.
05-27-1915
COLLINS v. SCULL et al.
C. C. Babcock and C. L. Cole, both of Atlantic City, for complainant. A. C. Abbott, of Mays Landing, and Bourgeois & Coulomb, of Atlantic City, for defendants.
Suit by Charles J. Collins against Martin V. B. Scull and others. Relief denied.
C. C. Babcock and C. L. Cole, both of Atlantic City, for complainant. A. C. Abbott, of Mays Landing, and Bourgeois & Coulomb, of Atlantic City, for defendants.
LEAMING, V. C. I think it clear that this court is without power to grant the relief sought by the present bill.
The bill asserts that four councilmen are necessary to constitute a quorum of the common council of the city of Somers Point; that six men are acting as councilmen of that city and transacting business as its common council; that three of these six men were not lawfully elected and, in consequence, the proceedings of that body are sanctioned at most by only three lawful votes. The bill seeks to restrain these six acting councilmen from contracting debts on behalf of that city and from ordering payment of bills against it.
The bill does not seek relief against the expenditure of money for any specific unlawful purpose, but seeks to prevent expenditures for any purpose, upon the theory that three of the six acting councilmen were not legally elected, and that any action taken by the body is necessarily void, for the reason that no quorum of lawfully elected members can exist.
This court is thus asked to inquire into and ascertain whether certain acting members of an acting municipal legislative body have been lawfully elected, and based upon the ascertainment of their unlawful election to issue a general preventive decree against all future monetary legislation by the de facto body.
This is clearly beyond the jurisdiction of this court; the ascertainment of title to office belongs to the courts of law. See 2 High on Inj. §§ 1312, 1315. Any decisions in this or other jurisdictions sustaining injunctions against municipal action for the protection of private property rights, or based upon proceedings of a municipality ultra vires its powers or involving an incidental inquiry into title to office for the purpose of determining other issues properly presented, are clearly distinguishable from the present bill which seeks to prevent all future municipal action involving the expenditure of money upon the single ground of illegal election or organization of the de facto legislative body of the municipality.
I will advise an order denying the relief prayed.