75 N.J.L. 315 | N.J. | 1907
The opinion of the court was delivered by
This is an application for a peremptory or alternative writ of mandamus commanding the members of the common council of the city of Hoboken to require, by order, resolution or otherwise, that the entire interior of the bars or business-rooms in said city, in which spirituous, vinous, malt, brewed or other intoxicating liquors are or shall be sold or served under licenses granted in said city, shall be, during the Sabbath day, commonly called Sunday, open to full view from the public streets of the said city, as required by section 4 of the supplement to an act regulating the sale of liquors, commonly known as the Bishops’ bill, approved April 13th, 1906. Pamph. L., p. 204. There is evidence that no resolution of this character has been passed by the common council, and that numerous saloons, so licensed in said city, do not remove their screens on Sundays, some of these places at least being other than such inns, taverns, hotels and other places as are exempted from this requirement by said act.
The duty thus pointed out by the statute to licensing bodies is a ministerial one, clearly mandatory, and mandanms is the proper remedy to enforce performance by public boards of purely ministerial duties. Jones Company v. Guttenberg, 37 Vroom 659. It would therefore seem that upon lawful application the remedy here sought might be property invoked. The respondents, however, resist this application, first, on the ground that the relator is a private individual, and must first show some special right or interest in the subject-matter of the wrong complained of, as apart from the general public,
It is urged that this court made a departure from this doctrine in Bamford v. Hollinshead, 18 Vroom 439, but we think not in view of the circumstances in that case which distinguish it. It is true that the court refused to issue a mandamus to compel the county clerk to pay over the fees of the office to the county collector on the application of a taxpayer, but in that case the law made it the duty of the county collector to collect the sum due the county, and this was the real ground of the court’s refusal to act on the application of a private relator. This decision seems to be within a recognized exception to the general rule, which is that when it is the special duty of a public officer to enforce performance of a duty by another officer, a private person cannot obtain a mandamus for that purpose. 13 Encycl. Pl. & Pr. 631. The relator is a citizen and resident of Hoboken, and the owner of taxable real estate therein. He is therefore interested in the peace and good order of the town, so that upon the principles here stated he may rightfully bring these proceedings.
The next contention is that the writ should be denied be
The application is for a peremptory or alternative writ. Our conclusion is that an alternative writ of mandamus may issue.