
    The State against Jeremiah J. Foster.
    QUO WARRANTO.
    1. If twenty-eight votes are given in joint-meeting for A. to be clerk of Gloucester, (being a majority of all the voles present) and the chairman declares that no election has been made, and upon a re-ballot thirty-one of the members of joint-meeting vote for B. for the same office, and B. is commissioned by the governor, and enters upon the duties of said office, an information m the nature of a quo warro.nto will not lie by A. against B.
    2. All deliberate bodies have a right to ro-consider their proceedings as often as they think proper, and it is the final result only which is to be regarded as the riling done.
    This was ail information in the nature of a quo wa,rranto, filed by the Attorney-General at the relation of Ephraim. .Miller, Esquire, against Jeremiah J. Foster, charging, that the said Jeremiah J. Foster had used and enjoyed, without any warrant or lawful authority, the office of clerk of tho county of Gloucester, and had usurped, intruded into, and unlawfully hold the same. To this information, the defendant pleaded, “ that he ought not to be impeached or impleaded by reason of the premises in the said information, because he says, that by the constitution and laws of the state of New Jersey, the right, power, and authority *to appoint to the said office of clerk, is vested, without appeal or control, jointly in the legislative council and general assembly of the said state; and that the right-,, power, and authority to commission the persons so appointed to said office jointly by the said legislative council and general assembly, are, by the said constitution and laws of said state, vested absolutely in the governor of the said state; and that at a joint meeting of the said legislative council and general assembly of said state, on the 27th of October, 1821, the said legislative council and general assembly did,, by a majority of votes, jointly elect and appoint the said ■Jeremiah J. Foster to be the clerk of the Common Pleas of the said county of Gloucester; and that, in obedience to the said appointment, the governor did, in due form of law, ■commission the said Jeremiah J. Foster to be the clerk of the said court.”
    The Attorney-General replied, “ that true it was as alleged in the said plea, that at a joint meeting of the said legislative' council and general assembly, held at Trenton on the said 27th of October, 1811, the said legislative council and general assembly did proceed to elect and appoint a person to be the clerk of the Court of Common Pleas of the •county of Gloucester.” But the said Attorney-General saith, “that the said legislative council and general assembly having proceeded to elect and appoint, as aforesaid, there were then and there present, of the said legislative council .and general assembly, in- joint meeting assembled, fifty-five members, and that of the said fifty-five members, twenty-eight did vote for the said Ephraim Miller to be clerk of the Court of Common Pleas of the county of Gloucester, and twenty-seven of the said members did vote for the said -Jeremiah J. Foster, and that the said Ephraim Miller was then and there, by a majority of votes as aforesaid, and .according 'to the constitution and laws of the state, appointed to be clerk of the said Court of Common Pleas, and was thereby entitled to have been commissioned, and ought to .have been commissioned clerk of the said court.”
    And the said Attorney-General further saith, “ that notwithstanding he, the said Ephraim Miller, was then and. there' elected and appointed to be clerk, as aforesaid, and the power and authority of the said legislative ■council and general assembly, in joint meeting assembled, in this behalf had been, as aforesaid, exercised and performed, and the said Ephraim Miller then and * there entitled 'to be commissioned, as aforesaid, and to continue in the said ■ office for five years, and not liable to be dismissed from the .said office, but on being adjudged guilty of misbehavior by the council, on an impeachment of the assembly; the said legislative council and general assembly of the said state of New Jersey, afterwards, to wit, on the same day and year aforesaid, and after an adjournment of the said joint meeting made, did, without power or authority, and contrary to the constitution of the said state, direct the secretary of the said joint meeting again to call the said joint meeting, and the said call being so made of the members of the said legislative council and general assembly then present, the same fifty-five members hereinbefore mentioned being then and there present, twenty-one members did vote for the said Ephraim Miller to be clerk of the said Inferior Court of Common Pleas of the said county of ^Gloucester, and thirty-one of the said members did then and there vote for the said Jeremiah J. Poster, to be clerk of the said Inferior Court of Common Pleas of Gloucester; and it was then and there announced that the said Jeremiah J. Poster had a majority of the whole number of votes, and was declared duly elected.” And the said Attorney-General further saith, “ that under the color of the proceedings so had, as aforesaid, his Excellency Isaac H. Williamson, Esquire, then and still being governor of the said state, in the said plea mentioned, without power or authority, and contrary to the constitution of the said state, did, by commission under his hand, and under *the great seal of the said state, as in the said plea mentioned, commission him, the said Jeremiah J. Poster, to be clerk of the said Inferior Court of Common Pleas of Gloucester, and, under color of the said commission, the said Jeremiah J. Foster hath, for the whole term in the said information above mentioned upon the said state, usurped, intruded into and unlawfully held and executed the said offices.”
    The defendant rejoins, “ true it is, that the said joint meeting, so constituted as aforesaid, did proceed to vote for and elect a clerk of the said court in and for the county of Gloucester, yet, for rejoinder in this behalf, he says, that at •the first vote had and taken^ for clerk, as aforesaid, ten of the said members did vote for one Thomas Hendry, to be such clerk as aforesaid; thirteen others of said members did vote for one Samuel Kille, to be *such clerk as .aforesaid; sixteen other of said members did vote for the .said Ephraim Miller, to be such clerk as aforesaid; and fourteen other of said members did vote for the said Jeremiah J. Foster, to be such clerk as aforesaid; whereupon, and before any person whatever was duly appointed as such clerk as aforesaid, and while the election for the said clerk was incomplete and undetermined, and yet under the control of the said joint meeting, it was resolved by the said joint meeting, that neither of the candidates so voted for was elected to be such clerk as aforesaid, and that the said joint meeting would proceed to vote a second time'for said clerk; and the secretary of said joint meeting was directed to call again the names of the said members ; and the same being called, upon the said second vote, twenty-eight of said members did vote for the said Ephraim Miller to be such ■clerk as aforesaid, and twenty-seven of said members did vote for the said Jeremiah J. Foster to be such clerk as .aforesaid; whereupon, the said clerk having read over the names of the members so voting as aforesaid, and announced the numbers voting for each of said persons, the chairman ■of said joint meeting did, as such chairman and presiding officer of said joint meeting, declare that there was no election and appointment o'f any person to be such clerk as aforesaid, and did thereupon propose to the said joint meeting the following question, viz : ‘ will the joint meeting pro-need to another vote for clerk of the county of Gloucester ?’ which said question was then and there decided, by the said joint meeting, in the affirmative, no member voting in the negative ; whereupon, and before any person whatever was duly appointed as such clerk as aforesaid, and while the -election for the said clerk was incomplete and undetermined And yet under the control'of the said joint meeting, the -secretary of tiro said joint meeting was then and there directed again to call the names of the said members for a third vote for such clerk as aforesaid, and the same being legally called, twenty-eight of said members, upon the said third vote, did vote for tho said Ephraim Miller to be such clerk as aforesaid, and twenty-seven of said members did vote for the said Jeremiah J. Foster to be such clerk as aforesaid; whereupon, the said secretary having read over the names of the members, so voting as aforesaid, and announced the number voting for each of said persons, the said chairman, as such chairman and presiding officer *of said joint meeting, again did declare that there [*105 had been no election or appointment of such clerk as aforesaid, and did thereupon again propose to the said joint meeting the said question, wz .• ‘Will the joint meeting proceed to another vote for clerk of the county of Gloucester?’ which said question was then and there decided by the said joint meeting in the affirmative, no member voting in the negative; whereupon, and before any person whatever was duly appointed as such clerk as aforesaid, and while the election for the said clerk was incomplete and undetermined, and yet under the controi of the said joint meeting, the said secretary was then and there directed to call the names of said members for a fourth vote for such clerk as aforesaid.”
    And the said defendant further, for rejoinder, saith, “ that after the said secretary liad called a part of the names of the said members of said joint meeting, for a fourth vote for such clerk as aforesaid, and the said members, so called, had voted, one of the members of said joint meeting objected to -tho said secretary’s proceeding to call the said names of the said members, and insisted that the decision of the said meeting upon said election had been incorrect, and that the said Ephraim Miller was duly elected clerk as aforesaid, and proposed to said meeting, that the names of the said members be no further called, which being agreed to by said .meeting, the said member did then move the following question, viz : ‘ Is the said decision, so as aforesaid made, correct ?' and the same, being by the said joint meeting discussed and considered, was thereupon duly proposed by the said chairman, and determined by the said meeting in the affirmative, a large majority of said meeting then and there voting in the affirmative of said question, so as aforesaid put and proposed by the said chairman ; whereupon one of the members of said joint meeting did thereupon propose and move, that the election of said clerk be indefinitely postponed, which said motion, being in due form proposed to said meeting, was, by a large majority of the votes of said members, decided in the negative; whereupon, the following question, being put, viz: ‘ Will the joint meeting now proceed to another vote for clerk of the said county of Gloucester ?’ it was then and there decided in the affirmative, a large majority of said joint meeting voting therefor; and thereupon, and before any person whatever was duly appointed as such clerk as aforesaid, and while the election for the said *clerk was incomplete and undetermined, and yet under the control of the said joint meeting, the secretary of said joint meeting was directed again to call the names of said members for a fourth vote for such clerk as aforesaid, and the same being called, thirty-one of the members did then and there vote for and elect the said Jeremiah J. Poster to be such clerk as aforesaid, and twenty-four of said members did then and there vote for the said Ephraim Miller to be such- clerk as aforesaid, and it was then and there announced and declared by the said joint meeting, that the said Jeremiah J. Foster was duly elected and appointed to be such clerk as aforesaid, and the said joint meeting having so announced and declared, did thereupon adjourn sine die, and the said Jeremiah J. Poster was duly commissioned by his excellency the governor - of this state, as in the plea of this defendant alleged and stated, which are the same election and appointment mentioned in the plea and replication aforesaid; wherefore the s.aid Jeremiah J. Poster saith, that the said Ephraim Miller-was not then and there appointed to be clerk as aforesaid, and entitled to be commissioned as such clerk, and to claim, use, and enjoy the said offices of clerk of the Inferior Court of Common Pleas of Gloucester, and to have and enjoy all. the powers, privileges, and emoluments thereto of right appertaining, for the time limited in the constitution of said state, as he hath done, and as it was and is lawful for him,, the said Jeremiah J. Foster, is ready to verify.”
    To this rejoinder there was a demurrer and joinder in demurrer.
    
      Wall, for the relator,
    and in support of the demurrer, contended — 1. That a majority of the votes of the members of the council and assembly, present in joint meeting, was all that was required to make an appointment to any office; and that it wms not necessary that there should be a majority of the whole number of both houses, present and absent; that Ephraim Miller, having received the votes of twenty-eight members of the joint meeting, which was a majority of the fifty-three members present, was duly appointed to-the office of clerk ; and that the decision of the chairman of the joint meeting, declaring that a majority of the whole number of members of both houses, present and absent,. (viz: the majority of fifty-sis members) was requisite *to make an appointment, was unconstitutional and illegal, and that the subsequent proceedings of the joint meeting, in proceeding to vote again for a clerk, were void.. Constitution of New Jersey, sec. 7.
    -2. That- when a majority of votes had been given for any candidate, the power of the joint meeting over that appointment was at an end; the officer became absolutely entitled to the office, and was not removable by the joint meeting, but only in the manner pointed out by law. But if the-joint meeting could rescind or recall their vote after it had been given, they might turn out an officer w-ho had been once duly appointed. 1 Cranch 157,. 153, 162.
    
      3. That there was no prerogative attached to the joint meeting, and that they could appoint only in the manner prescribed by the constitution. 1 Bl. Com. 250; 2 Finch 85 ; Chit. Prerog. of the Crown.
    
    4. That this court had a perfect right to interfere, and declare the act of the joint meeting to be void. 1 Cranch 163, 166, 176, 177; 2 Dal. 308; Coxe’s Rep. 248, 251; 4 Griffith's Law Reg. 1176; 1 Hals. Appendix 4; Rev. Laws 440; 2 Salk 304; 1 Wils. 126-7; 2 Ld. Ray. 956; 2 Bl. 36.
    5. That the form of the remedy which had been adopted was the proper one. Rev. Laws 206-7; 5 Com. Dig. title K. 15, p. 157.
    
      L. H. Stockton-, contra,
    contended, that this court had no jurisdiction in a case of this kind, and cited 6 Bac. Abr. tit. Stat. 383; 1 Show. 455; Saville 39; 1 Mass. 363; 2 Bur. 746; Rev. Laws 206; 5 Jac. L. D. tit. Quo. War. 371; 5 Com. Dig. tit. Quo. War. A. 161, 164, c. 3 ; 3 Bl. Com. 262-3-4; 2 Lil. Abr. 509; 4 Bur. 2146; Co. Lit. 149, note 1; Ib. 108; Crc. Car. 142; 2 Ld. Ray. 944; Doug. 580; 1 Term. Rep. 517.
    Mr. Stockton was proceeding in his argument, when the Chief Justice told him it was unnecessary, and said — •
    Our minds are made up upon a point which we suppose will conclude the question before the court, which is, that all deliberative assemblies, during their session, have a right to do and undo, consider and reconsider, as often as they think proper, and it is the result only which is done. In this case, so long as the joint meeting were in session, they had a right to reconsider *any question which had been before them, or any vote which they had made. They did reconsider the vote they had first given, and they voted 'that there should be a re-balloting. In this view of the subject, we are inclined to believe that there was nothing '(illegal or unconstitutional in the proceedings of the joint meeting, and that the information cannot be sustained.
   Eoud, J.

That is my impression. The joint meeting were deliberating and discussing the question which was before them. The chairman of the joint meeting, who is the mouth-piece of the whole body, declared, after the first vote was taken, that there was no election; and it is so-stated on their minutes. They then proceeded to ballot again for the clerk. I do not see how this court can interfere to prevent their so doing. We hold our proceedings under revision during- the term; and we do not know that we can withhold the same right from them. I think that .there is no ground for the information.

Rossell, J. concurred.

Judgment for defendant.  