
    THOMAS F. McCRAN, ATTORNEY-GENERAL, ON THE RELATION OF HERMAN J. WILLE, RELATOR, v. WILLIAM A. LORD AND FRANK J. MURRAY, DEFENDANTS.
    Argued November 6, 1919
    Decided February 9, 1920.
    1. The right of the direefior of thie department of revenue to> act as mayor of a municipality in case of a vacancy in that office, undeithe statute relating to the government of municipalities, commonly called the Walsh act, does not become a fixed right for the unoxpired term' of a retiring mayor, but ceases when the vacancy is filled by the election of a new’ presiding officer.
    2. When the presiding officer resigns as a 'Commissioner and his successor is elected by the people, he does not become mayor unless the commissioners elect him as presiding officer. They have the right to choose such officer from, its members when a vacancy occurs, in which event the vacancy ceases and the person so chosen becomes e(c-offic,io mayor.
    On demurrer by each, defendant in quo lo-armnlo to determine which is entitled to exercise the office of mayor of the city of Orange, New Jersey.
    Before Justices Trenotiard and Bergen.
    Eor the relator, Thomas F. McCran, attorney-general, and William A. Calhoun.
    
    For the demurrant William A. Lord, McCarter As English.
    
    For the demurrant Frank J. Murray, Pitney, Hardin & Skinner.
    
   The opinion of the court was delivered by

Bergen, J.

The relator filed an information in the nature of a quo warranto calling upon both defendants to answer by what right they respectively claimed to exercise the office of mayor of the city Orange.

The information sets out that one Daniel E. Minnehan and three others were, on May 14th, 1918, duly elected commissioners of the city of Orange under the act approved April 25th, 1911, entitled “An act relating to, regulating and providing for the government of cities, towns, townships, boroughs, villages and municipalities governed by boards of commissioners or improvement commissions in this state” (first supplement to Comp. Stat., p. 1087); that Minnehan was, at the first meeting of the commissioners, chosen to preside at all meetings and thereby became mayor by virtue of the statute; that Frank J. Murray, one of the commissioners, was at the same meeting designated as director of revenue and finance; that August 5th, 1919, Minnehan resigned his office of commissioner, and at an election held September 9th, J919, William A. Lord was elected as a commissioner to fill the vacancy caused by the resignation of Minnehan; that September 16th, 1919, the commissioners adopted a resolution and chose Lord as presiding officer, mayor and director of the department of public affairs. Since which time both Murray and Lord have been acting as presiding officer and mayor. Both have demurred to the information. Lord claims that by his election to the vacancy as commissioner he succeeded to the mayoralty vacated by Minnehan or, if not, by virtue of his designation as director of the department of public affairs. Murray claims that as vice president of the board he became the presiding officer and mayor for the unexpired term of Minnehan.

This position of Murray is not sound in law. He never was chosen vice president of the board or its presiding officer but was only such, ex officio, as director of the department of revenue and finance, the statute providing that such director shall be vice president of the board'“and in case of vacancy in the office of mayor, shall perform the duties of that office.” The statute does not confer on him the office of mayor, but imposes the duties of the office in case of vacancy and when that condition ceases no vacancy exists. The only question remaining is does a vacancy appear by the facts, contained ill the ill formation, which are admitted by the demurrer. There is nothing in the claim of Lord that he became mayor by his election as commissioner. The board was free to choose any of its members to that position, nor does the fact that lie was designated by the board as director of public affairs lielp him. There is nothing in the statute providing that his selection as director of public affairs creates him mayor. The converse of this is the fact, for the statute requires the board to choose a presiding officer, who shall be designated mayor, and it is by virtue of his selection as presiding officer, with the designation of mayor, that he becomes director of public affairs, while the vice president become-s such because of his selection as director of revenue and finance. The hoard in case of vacancy in that office may choose a presiding officer, and lie becomes thereby mayor for the unexpired term. There was a vacancy in the office of presiding officer and the hoard had the right to fill it, which- they did by appointing Lord, who thereby became mayor for the unoxpired term.

The ease of Woolley v. Flock, 92 N. J. L. 65, is not applicable, for there the hoard attempted to create a, vacancy hv ousting the presiding officer during the term for which he had been elected, and manifest!)’' they could not do that for they had no power to create a vacancy for the purpose of filling it. In the present ease there was a vacancy created by the act of the presiding officer, and the statute provides who shall act during such vacancy only. The demurrer of 'Murray should be overruled and that of ’Lord sustained. The result being judgment of ouster against Murray, with costs.  