State v. Bedell

• Decision Date: 11 November 1901
• Citation: 50 A. 364,67 N.J.L. 148
• Parties: STATE ex rel. HANN v. BEDELL et al., Excise Com'rs.
• Court: New Jersey Supreme Court

50 A. 364

67 N.J.L. 148

STATE ex rel. HANN

v. BEDELL et al., Excise Com'rs.

Supreme Court of New Jersey.

Nov. 11, 1901.

Quo warranto proceedings by the state, on relation of Samuel H. Hann, against Arthur Bedell and others, excise commissioners of the city of Camden. Rule to show cause why quo warranto should not issue. Discharged.

Argued February term, 1901, before GUM—MERE and FORT, JJ.

George H. Peirce and S. Conrad Ott, for relator.

Henry M. Snyder, Jr., for defendants.

GUMMERE, J. By the first section of an act of the legislature approved April 8, 1884, entitled "An act to establish an excise department in cities of this state," the governing board of each city was authorized to pass ordinances for the purpose of providing for the establishment of a board of excise commissioners, the members of which should serve three years, and be elected on the general ticket at the charter election. P. L. 1884, p. 133. Pursuant to the authority conferred by this act, the city council of the city of Camden on June 27, 1887, adopted an ordinance creating and establishing an excise board in that city. By a supplement to the above statute approved February 24, 1892 (P. L. 1892, p. 29), it was enacted that it should be lawful for the governing board of any town or city of this state, except cities of the first class, to provide by ordinance for the establishment of a board of excise commissioners, and that, upon such municipal action being had, the members of the board should be appointed by the court of common pleas of the county wherein such town or city should be situate; and all Inconsistent or repugnant legislation was repealed. Notwithstanding the supplement of 1892, and in disregard of its provisions, the city of Camden continues to select the members of its board of excise commission by electing them at the annual charter election; the present incumbents, who are the respondents herein, having been chosen in that manner. The relator, who is a citizen and taxpayer of the city, seeks by this procedure to test the right of these incumbents to the offices which they so hold.

It is objected on behalf of the respondents that under the decisions of this court in Steelman v. Vickars, 51 N. J. Law, 180, 17 Atl. 153, 14 Am. St Rep. 675, and Richman v. Adams, 59 N. J. Law, 280, 36 Atl. 699, the right of these respondents to hold their offices cannot be called in question at the instance of a private person, because it attacks the legal existence of the board of which they are members. This is a misapprehension of the effect of this procedure. The legality of the board of excise commission is not questioned by the relator. On the contrary, it is admitted. It is the...