
    ARTHUR W. CLAYTON v. THE BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY.
    A writ of certiorari, bringing into court the appointing body alone, is not a lawful mode of trying the title of the appointee to a public office which he has actually assumed.
    On certiorari.
    
    Argued at June Term, 1897, before Justices Dixon and Ludlow.
    For the prosecutor, Leon Abbett and Flavel McGee.
    
    For the defendants, Allan L. McDermott and Charles L. Corbin.
    
   The opinion of the court was delivered by

Dixon, J.

This certiorari brings up the following resolutions adopted by the board of chosen freeholders of Hudson county, on December 30th, 1896 :

“Resolved, That for the causes aforesaid, the director of this board be and he hereby is removed and amoved from the office or position of director of this board, and that the said office or position be and the same hereby is declared and made vacant, and that this resolution shall take effect immediately j and
“Resolved, That William Green, a member of this board, be and he hereby is appointed and elected director of this board, this resolution to take effect immediately.”

The chief function of the director of the board is to preside at its meetings.

Between the passage of the first and that of the second of these resolutions there was no longer interval than the time required to vote upon the first, and immediately thereafter Mr. Green took the oath of office, and Mr. Clayton left and Mr: Green assumed the ehair as presiding officer of the board. It also appears that when this writ of certiorari was issued, Mr. Green was the actual incumbent of the office of director. He is not a party to the present proceedings.

Under these circumstances, the real question for decision obviously is, whether the prosecutor of this certiorari or the actual incumbent of the office is legally entitled to the office of director.

The proper mode of raising such a question is by quo warranto proceedings against the incumbent, and not by certiorari to the body which appointed him. Haines v. Freeholders of Camden, 18 Vroom 454; Simon v. Hoboken, 23 Id. 367; Roberson v. Bayonne, 29 Id. 325.

The writ must be dismissed, but without costs.  