State v. Murphy

• Decision Date: 11 March 1889
• Citation: 51 N.J.L. 250,17 A. 157
• Parties: STATE (BROWN, Prosecutor) v. MURPHY.
• Court: New Jersey Supreme Court

17 A. 157

51 N.J.L. 250

STATE (BROWN, Prosecutor)

v. MURPHY.

Supreme Court of New Jersey.

March 11, 1889.

(Syllabus by the Court.)

Certiorari to the common council of Bordentown.

Argued November term, 1888, before DEPUE and DIXON, JJ.

Mr. Gilbert, for prosecutor. G. D. W. Vroom, for defendant.

DIXON, J. On March 27, 1888, the defendant applied to the common council of Bordentown for a license to keep a restaurant and saloon, including the sale of malt liquors, in the house where he dwelt in the city At the same meeting the prosecutor and others, citizens and tax-payers in the city, remonstrated against the granting of the license, on the ground that the applicant had not advertised for the space of three weeks, as required by law, previous to his application, and they requested an adjournment of the proceedings for a reasonable time, to afford them an opportunity to offer proof whereby they could sustain their remonstrance. The council refused the request, and, although there was no evidence before it that such advertisement had been published, at once granted the license. Thereupon this certiorari was obtained.

The remonstrance was based upon the provisions of an ordinance of the common council, passed September 8, 1865, to regulate the licensing of persons to sell ale, porter, etc., in the borough of Bordentown, which ordains that all persons applying for license to sell ale, porter, lager beer, oysters, etc., within said borough shall be required to produce satisfactory evidence showing that three weeks' public notice of such intended application has been given by them, through a public newspaper published in the borough, signed by the applicant, setting forth the location of the house so desired to be licensed, and the particular kind of refreshment to be sold therein; and which further ordains that until such proof shall be produced by the applicant no application for such license shall be entertained by the council. An inspection of the proceedings of the council at the meeting in question shows that the provisions of this ordinance were not then observed, for no evidence of advertisement was produced before the board. If, therefore, these provisions were binding upon the council, it was unlawful for the council to entertain the application, and grant the license. On the like hypothesis, the request of the remonstrants to be afforded a reasonable opportunity to prove that the prescribed advertisement had in fact not been given, made it the duty...