State ex rel. Day v. Lyons

The opinion of the court was delivered by Garrison, J. The appointment by the mayor to the office of common councilman required confirmation by a majority of the whole council. This is the construction placed upon section 26 of the Borough act of 1897 (Pamph. L., p. 285) by this court. Hawkins v. Cook, 33 Vroom 84; Armstrong v. Whitehead, 38 Id. 405. [116] Counsel for the defendant raises a practice objection to tbe granting of leave to file this information, which is thus stated in his brief: “We now raise this objection, and submit that in many eases prerogative vpfits should not be prosecuted, even where a case exists; that the attorney-general is vested with a large discretion in this matter and that where the private relator is not a claimant for the office .the suit should not be maintained, except on the authority of the attorney-general, or at least upon notice to him." This suggestion, which is a novel one, loses sight, as it seems to me, of the fundamental distinction that has always existed between informations ex offcio and those not ex offcio, the former originally being suits by the sovereign by his immediate officer, the attorney-general, while the latter were brought by private relators acting only, nominally in the sovereign’s name and filed, not by the attorney-general, but by an officer in the king’s bench, usually called the master of the crown office, who, for this purpose, was the standing officer of the public. 4 Bl. Com. 308. Leave of the court was never required in ex offcio informations, and at first was not required in those not ex offcio, until the statute of 4 and 5 W. & M., c. 18, was passed, enacting that such suits should not be filed by the clerk of the crown in the Court of King’s Bench without the express order of said court. This led to the distinction that has ever since obtained between informations filed by the state at the sole discretion of its attorney-general and those in which private relators might file informations by the express leave of the court in which such suits were to be brought, which, in this state, is this court. The use of the attorney-general’s name in informations that require the leave of the court is as purely a matter of form as was that of the master of the crown office, after the passage of the statute of 4 and 5 W. <& M. Our practice has always conformed to this distinction and there is nothing in our statutes that should lead to breaking it down. I see no force in the suggestion. The application of the relator is granted.