State v. Board of Excise Commissioners

The opinion of the court was delivered by Dixon, J. This writ brings up the proceedings of the board of excise commissioners of the city of Burlington, in attempting to grant to George Wells a license to keep an inn and tavern in said city. The board consists of five members, and seems to have been organized under the act to amend an act entitled “An act to establish an excise department in cities of this state,” passed June 1st, 1886. Pamph. L., p. 397. The powers of such a board must be exercised in accordance with that statute, one of the provisions of which is “ that such board of excise commissioners shall have the sole power within such city to make, establish, amend or repeal ordinances and by-laws to license, regulate or prohibit inns and taverns.” This plainly indicates that the adoption of an appropriate ordinance or by-law is a necessary prelude to the granting of licenses for such houses. This is the primary power expressly conferred upon the board. The power to license, in pursuance of the ordinance or by-law, is only secondary, existing in the board by mere implication from other features of the statute. Winants v. Bayonne, 15 Vroom 114. [152] The case shows that the board has passed no ordinance or by-law for the licensing of inns and taverns, and, therefore, the proceedings under review are illegal and must be set aside. The “question whether this amendatory act of June 1st, 1886, was not repealed as to all cities except those of the first class by the supplement of February 24th, 1892 (Gen. Stat, p. 1807), which seems to be a substitute for it, was not raised on the argument, and is not decided. The proceedings to license Thomas S. Wells and Hays B. Falkenburg are, for the same reasons, set aside. The prosecutors are entitled to costs.