
    GEORGE C. HUBSCHMIDT, RELATOR, v. HUBBARD FERGUSON, RESPONDENT.
    Decided April 11, 1925.
    Municipalities — Officers—Chief of Fire Department Alleged Illegal Removal — Home Rule Act, Sec. 24 of Art. 37, Cited by Relator to Sustain His Contention Does Not Seem to Have That Effect.
    On quo warranto. On demurrer to plea.
    Eor the relator, Charles J. McCarthy.
    
    Eor the respondent, Howard Mackay.
    
   Memorandum by Mr- Justice Parker for information of counsel.

Relator claims to have been illegally ousted from the office of chief of the fire department of the borough of Glen Rock, in the county of Bergen. The matter has been submitted tome as a single justice by consent.

Respondent was appointed to succeed and supersede relator by virtue of an alleged ordinance said to- have been passed September 22d, 1924, and a copy of which is recited in the information to be annexed thereto- as schedule “A.”

The claim of relator is twofold — (1) that the ordinance- of September 22d, 1924, calls fo-r the incurring of indebtedness, and under section 24 of article 37 of the “Home Rule act” (Pamph. L. 1917, p. 461), and in view of a protest by taxpayers under that section, the ordinance was inoperative until validated by a'referendum' election; (2) that tire ordinance attempts to authorize the fixing of salaries by resolution in violation of section 1 of article 13. Id..350.

Assuming for present purposes that the contest is o-ver an office and not over a “position,” and assuming that, as respects the second branch of the attack, quo warranto and not certiorari is the proper remedy, I fail to find, on a, repeated careful reading of schedule “A,” that it contains one word either about incurring any indebtedness or making any expenditure, or provides for any salary in any manner whatever.

Oil the present record, therefore, defendant must prevail on the demurrer.  