State v. Bd. of Excise of City of Elizabeth

• Decision Date: 04 March 1895
• Citation: 57 N.J.L. 603,31 A. 235
• Parties: STATE (DECKER, Prosecutor) v. BOARD OF EXCISE OF CITY OF ELIZABETH.
• Court: New Jersey Supreme Court

31 A. 235

57 N.J.L. 603

STATE (DECKER, Prosecutor)

v. BOARD OF EXCISE OF CITY OF ELIZABETH.

Supreme Court of New Jersey.

March 4, 1895.

(Syllabus by the Court.)

Certiorari by the state on the prosecution of Horam Decker against the board of excise of the city of Elizabeth to review the resolution of the defendant board. Resolution vacated.

This writ of certiorari brings up a resolution of the board of excise revoking a certain license theretofore granted to the prosecutor. The resolution was passed on July 5, 1894. The license revoked was granted on February 1, 1894. It seems to have a third renewal, such renewal being made under color of the act (Pamph. Laws 1891, p. 12).

Argued November term, 1894, before GARRISON and REED, JJ.

P. H. Gillhooley, for prosecutor.

J. C. Connolly, for defendant.

REED, J. The license was revoked at a meeting of the board of excise held subsequent to and distinct from the meeting at which the license was granted. No notice of such intended action was given to the prosecutor. No fraud was practiced, so far as appears, in obtaining the license. That it was irregularly granted seems obvious. The act of 1891 (page 12) seems to provide for only one yearly renewal of the license, to be made upon the original petition. But assuming that the board made a mistake it does not appear that the mistake was induced by any fraudulent conduct of the petitioner. It was an error attributable to infirmity of judgment in the board. Certiorari would have brought the license Into this court for the purpose of vacating it. But the power of the board itself to revoke is limited to instances where the license has been fraudulently procured, or where the statute has expressly conferred the power of revocation. Lantz v. Mayor, etc., of Hightstown, 46 N. J. Law, 102. The causes for revocation, and the proceedings to be taken in bringing about such revocation, are set out in Laws 1889, p. 77, § 10 et seq. The resolution brought up is vacated for two reasons: First, the action of the board was judicial, and therefore notice to the licensee was essential to its validity; second, there was no apparent cause for revocation, had the notice been given.