
    WILLIAM D. CASEY ET AL., RELATORS, v. LEON A. CHASE ET AL.
    Submitted July 14, 1899
    Decided November 13, 1899.
    1. Mandamus to admit to membership in a public body will not be ordered if the effect will be to oust incumbents whose claim of title is not frivolous. Quo warranto is the only proper procedure to try title to office.
    2. Under statutory authority the township committee of Woodbridge, in the county of Middlesex, is composed of three members, each holding for three years, one member being elected annually. Official notice to elect one member at the annual town meeting of 1899 was published. A received five hundred and forty-two votes, B three hundred and sixty-one votes, and C, D and E each two or three votes. On contention of unconstitutionality of the later statutes, B, C, D and E claimed membership in the committee on the ground that the only valid law on the subject required a board of five members with an annual term. Held, that the question would not be determined on mandamus to seat persons not intelligently chosen by the voters, and that the only way to raise it would be by application for mandamus to the township clerk to give notice of the election at the next annual town meeting of five members of the township committee for one year.
    On application for mandamus.
    
    Before Justices Dixon and Collins.
    For the relators, Ephraim Cutter.
    
    For the defendants, Charles C. Hommann.
    
   The opinion of the court was delivered by

Collins, J.

By the General Township act of 1846 (Gen. Stat., p. 3583, § 12) the qualified electors of each township were authorized to elect at the annual town meeting a township committee of' five members to hold office for one year. Subsequent legislation having introduced differences among the townships in the matter of the number of members of the township committees, a board of five members was required in all townships having less than six thousand inhabitants by “An act concerning townships and township officers/’ approved April 21st, 1876. Pamph. L., p. 297; Gen. Stat., p. 3594. This provision was amended in 1877 (Pamph. L.,p. 60), and again in 1878 (Pamph. L., p. 374), so as finally to require a township committee of three persons in all townships in counties having less than one hundred thousand inhabitants by the last state census. An amendment to another feature of that section of the act’ was made later, but as to the township committee it remains unchanged. Gen. Stat., p. 3600, pl. 122. By a supplement to the act of 1876, approved March 23d, 1883 (Gen. Stat., p. 3599, pl. 114), it was enacted that in the several townships in which the township committee consists of three persons, the members thereof should thereafter be elected for the term of three years, provided that at the first annual town meeting the tickets voted should designate the name of one member for one year, another for two years, and the third for three years, and that at each succeeding election one member of the township committee should be elected for three years. Since this act took effect the township of Woodbridge has had but three members in its township committee. At the annual town meeting in March, 1899, official notice was given, among other things, for the election of one member of the township committee. Leon A. Chase received five hundred and forty-two votes, William D. Casey received three hundred and sixty-one votes, William V. Carpenter received three votes, Charles P. McKenzie received three votes, and George Noe received two votes. Mr. Chase was declared elected. He qualified and joined Clarence M. Liddle and Thomas M. Dunigan, the members holding over in the board. Messrs. Casey, Carpenter, McKenzie and Noe, the relators, having taken the statutory oath, but not being allowed to assume office, seek a mandamus to compel Messrs. Chase, Liddle and Dunigan to recognize them as members of the committee; in effect to oust Liddle and Dunigan and seat the relators with Chase. The ground of their claim is that the act of 1876, as amended, is a local and special law violative of the constitutional requirement of legislation regulating the internal affairs of towns and counties, and that, in the township of Woodbridge, the General Township act of 1846 is in force. The defendants contend against this claim, and also that, by an act approved March 22d, 1860 (Gen. Stat., p. 3617), in townships' voting by ballot the township committee may consist of three members. The first section of the act of 1876 requires township elections to be by ballot with certain apparent exceptions, and Woodbridge, since 1840 (Pamph. L.,p. 87), has been specially authorized by law to so elect its officers. The claim of the defendants is manifestly not frivolous. Questions requiring consideration are presented by both parties. Messrs. Liddle and. Dunigan claim legal title to offices, of which-they are in possession. Mandamus to admit to membership in a public body will not be ordered if the effect will be to oust incumbents whose claim of title is not frivolous. Quo warranto° affords the only proper .procedure to try title to office. Henry v. City Council of Camden, 13 Vroom 335; Haines v. Freeholders of Camden, 18 Id. 454; Simon v. Hoboken, 23 Id. 367 ; Roberson v. Bayonne, 29 Id. 325; Clayton v. Freeholders of Hudson, 31 Id. 364. In the decision relied on by the relators to justify their procedure the members holding overdid not claim title. Love v. Freeholders of Hudson, 6 Id. 269.

But if we could we would not, at the instance of the relators, inquire into the matter.' The voters of Woodbridge did not choose tfiem as their officers. They had no notice of any election except for one vacancy, and for that they chose Mr. Chase and rejected Mr. Casey. It is urged that the other votes were cast in order to test the questions involved in the premises. The test cannot be made in that way. Bolton v. Good, 12 Vroom 296.

If any citizen of Woodbridge desires to raise the questions argued he may do so by application for mandamus to the township clerk to give notice, for the election, at the next annual town meeting, of five members of the township committee for one year.

The mandamus now prayed for will be denied.  