Opinion
Argued October 6, 1937 —
Decided November 9, 1937.
Certiorari cannot be used to challenge right of persons to hold public offices of which they are in possession.
On rule to show cause why writ of certiorari should not issue.
Before Justices LLOYD, CASE and DONGES.
For the prosecutor, Thomas L. Parsonnet, Andrew F. Zazzali, Bertram A. Garrigan and Sidney Finkel.
For the defendant, James F.X. O'Brien, Simon Englander and Thomas M. Kane.
This is a companion case to Nos. 237 and 239 of the present term. Subsequent to the proceedings brought up by the writs in those cases, the board of commissioners of the city of Newark adopted ordinances creating the board of assessment for local improvements and the board of assessment and revision of taxes, and then proceeded to appoint certain persons as members of those boards. These persons are in possession of the offices. The present case is on rule to show cause why a writ of certiorari should not issue to review the resolutions making these appointments. The substance of the prosecutor's contention is that he, as director of the department of revenue and finance, had the power to make these appointments rather than the whole board. He attempted to exercise this power and appointed other persons to fill the offices mentioned.
We are of the opinion that this case in its essence is an attempt to challenge the right of persons to hold public offices of which they are now in possession. For the reasons stated in Murphy v. Ellenstein et al., 119 N.J.L. 159 , of the present term, this may be done only on direct attack by quo warranto and not indirectly on certiorari.
The rule to show cause is dismissed, with costs.