The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1901-04-09
Corporation Counsel Nc
Dermott Advises 0'Don-
nell to Disregard 1t.
SAYS IT is UNCONSTITUTIONAL
Thinks Board of Aldermen
Should Authorize Him
to Appeal It.

City CleSk M J. O'Donnell is IN recsapS
OF an opinion from Corporation Counsel
McDermott advising the Board of Alder
men to disregard the new excise law,
claiming that it is unconstitutional. The
text of the opinion foliows:-
M ]. ODonnell, ESD
Dear Sir-You ask my opinion of the
relation of 'sAn act to establish an excise
department in cities of the first class IN
this State,'' approved March p. 1901, to
the duties now imposed upon the Board
of Aldermen in the matter of granting
licenses for the sale of liquors. The ACT
provides in effect that licenses hereafter
granted by the Board of Aldermen shali
not extend beyond the first day of Fepru-
ary, 1902 and that the licensing power
shall. after the first of next January, be
vested in "a Board of Excise Commls-
sioners. to consist of four persons, Tor
the terms hereinafter specified, each OF
whom shall be elected at large in such
city as hereinafter provided" The pro-
visions for election of the Commissioners
are as fcllows:-
1.-TWO persons shall be nominated for
Excise Commissioners, one for term of
two years and one for a term of one
year, Dy Gdcf P0iltlSdi party "a PSN--
ers who sign nominating papers
u-At the election ''the two persons
receiving the highest number of votes for
Excise Commissioner for each of said re-
spective terms shall be duly elected Ex-
else Commissioners for the term so speci-
fed"
III.-'fNo ballot shall contain the name
of more than one Commissioner for eacn
of said terms
In my opinion this method of electing
municipal officers is unconstitutional, and
the Board of Aldermen should grant IL
censes without regard to the act men
toned.
Article II. of our State Constitution pro-
vsdes that every male citizen of the
United States, of the age of twenty-one
years. who shall have been a resident Oh
this State one year and of the county in
which he claims his vote five months
next before the election, shall be emitted
to vote for all persons that now are or
may hereafter be elective by the people.
The fret section of the act provides
that the Board of Excise Commissioners
shall consist of four persons, "each OF
whom shall be elected at large in SUCH
city as hereinafter provided" At TINS
poipt the Legislature in my opinion, de-
nartea from the constitutional path.
Having decided that four persons were
to be elected, the constitutional provision
irnmediatelv attaches, and it becomes the
unassailable right of every citizen entitled
to the franchise to vote for all the per-
sons elective by the people.
The statute attempts TO proVloe loi
hut
clear that minority representation cannot
be provided for, under our State consul
tuition. in any municipal board, all the
members of which are to be elected by
the people.
In some State constitutions provisions
are found for minority representation, by
cumulative voting or otherwise, put no
instance can be found where legislation
of this kind has been upheld under coi-
stitution that entities every voter to cast
vote for every officer to be elected. In
ohio. the State Constitution provides that
every citizen having the qualifications OF
an elector shall be "entitled to vote at all
elections This provision, it will be
seen. is not as explicit as that in our
CONSTITUTION. but it was held, in the case
of state v. Caralotine, AZ Ohio State
election of four members of police board
at each election. but denying to an elector
the right to vote for more than two, was
IN CONFLICT with the quoted provision and
void.
Numerous cases could be cited from the
renorts of other States establishing the
proposition that under constitution
worded as ours is, the legislature cannot
+;xya or minority
representation as the result of a popular
election A case in point in New Jersey
,s Allison v. Blake, % vroom, p 6. An
attempt was made, under an act OF our
LEGISLATURE. to elect boards for the con-
troll and management of public roads and
marks by the votes of such legal voters
as were freeholders. Chief Justice
Reas1ey. in declaring the act unconsti-
tutional. said:-"A male citizen of the
United States, of the age of twenty-one
wars. who has been resident of this
state one year. and of the county in
which he claims his vote five months,
next before the given election. is entitled
70 vote for all officers that are elective
bv the people, whether such officers are
created by the constitution or by legis-
lation.''
s+itntional. it could be extended to the
election of members of the House of As
sembly and to all elective municipal
boards, and could be so added to that
every political party should elect rep
resentative to each board. In such a
proposition there would not be more ef-
fective deprivation of the right OF sell
government than is found in this act As
the question is one that should receive
final judicial settlement at an early day,
will. if so instructed by the Board OF
Aldermen, take such steps as are neces-
sary to submit it for adjudication to the
June term of the Court of Errors and
Appeals
Respectfully,
ALLAN L. McDERMoTT,
Corporation Counsel