trade in such place," such stock shall be taxed at the general rate for the current year. Held, that the words "in such place" must be construed as referring to the "place of business"; and that, when so construed, the statute creates an unsubstantial and illusory classification of property for taxation, and is therefore unconstitutional.

[Ed. Note. For other cases, see Taxation, Dec. Dig. 8 40.*]

(Syllabus by the Court.)

Certiorari on the prosecution of Morris Lang, against Andrew J. Berrien, receiver of taxes, and the inhabitants of the city of Trenton, to review an assessment. Tax set aside.

Argued June term, 1908, before GARRISON, SWAYZE, and PARKER, JJ.

A. S. Appleget, for prosecutor.

PARKER, J. This writ brings up for review an assessment of taxes assessed and levied against the prosecutor by the commissioners of assessment of the city of Trenton on January 31, 1908, for taxes of the year 1907 on personal property valued at $5,500, none of which was brought into the city of Trenton until January 28, 1908. The tax was levied under, and by virtue of an act of the Legislature passed March 9, 1885 (P. L. p. 61; Gen. St. 1895, p. 3418), entitled "An act to provide for the taxation of the property of persons engaged temporarily in business in taxing districts subsequently to the completion of the annual assessments by the local assessors." Its first section reads as follows: "That whenever any person, firm or corporation shall, subsequently to the time fixed by law, for the completion of the annual valuation and assessment for local taxes in any taxing district in this state bring or send into such taxing district any stock of goods or merchandise to be sold or disposed of in a place of business temporarily occupied for their sale, without the intention of engaging in permanent trade in such place, the owner, consignee or person in charge of said goods or merchandise shall immediately notify the local assessor or board of assessors by whatever name such officer or board shall be designated; and thereupon the assessor or board of assessors, as the case may be, shall at once proceed to value the said stock of goods and merchandise at its true value, and upon such valuation the said owner, consignee or person in charge shall pay to the collector of taxes of the township, town, borough or city, as the case may be, a tax at the rate assessed for state, county and local purposes in the taxing district in the year then current; and it shall not be lawful to sell or dispose of any such goods or merchandise as aforesaid in such taxing district until the assessor or board of assessment shall have been so notified as aforesaid and the tax assessed thereon duly paid to the collector."

The second section provides that for failure to notify the taxing authorities as above required, or to pay the tax for selling any of the property before the tax is paid, the owner of the property shall forfeit twice the amount of the tax, to be recovered in an action of attachment. The prosecutor rented a temporary place of business in Trenton, and on January 28, 1908, had it stocked with goods for immediate sale, when he was notified by one of the city assessors to make report as required by section 1. He accordingly did so, and the commissioners, accepting his valuation, immediately imposed a tax at the current rate of 1907, and returned it to the receiver of taxes for collection.

The assessment is attacked by prosecutor on the ground that the act quoted violates the constitutional provision that "property shall be assessed for taxes under general laws and by uniform rules according to its true value" in that the first section lays down an illusory classification of the property taxable. In this we agree with him. A careful reading of section 1 discloses that the class of property made taxable embraces merely any stock of goods or merchandise brought or sent after the date of annual valuation and assessment into any taxing district, to be sold or disposed of in a place of business temporarily occupied for their sale without the intention of engaging in permanent trade in such place; i. e., such place of business. Whatever may be said as to the propriety of a classification embracing all property intended for sale in a temporary place of business without an intention on the part of the owner of engaging in permanent trade within the taxing district, all that need be said now is that no such classification is contained in the statute under discussion. An essential criterion of the class in question is the absence of intention on the part of the owner to engage in permanent trade in the place of business temporarily occupied by him. Under this act goods are taxable whose owners intend to engage in permanent trade in the taxing district, but only temporarily in the particular place of business therein, even though their occupancy becomes permanent; while in the case of an owner intending to engage in permanent trade in the identical place of business the goods are exempt until the next regular day for valuation and assessment, though such owner in fact vacate before that time and leaves the district, so that his occupancy is in fact temporary. Such a classification seems neither logical nor substantial. It may be that by the word "place" the draftsman of this act intended "taxing district"; but, if so he failed to express that intention. Under well-recognized rules of construction, the words "such place" must be considered as relating to the last

"place" previously mentioned; 1. e., the place of business.

For these reasons, we regard the act in question as unconstitutional and invalid. The tax brought up will therefore be set aside.

(77 N. J. L. 231)

BOWELL v. PUBLIC SERVICE CORP. (Supreme Court of New Jersey. Nov. 16, 1908.) NEW TRIAL (§ 72*)-WEIGHT OF EVIDENCENUMBER OF WITNESSES.

It does not follow that, because the number of defendant's witnesses exceed those of the plaintiff, a verdict for the latter will ipso facto be set aside.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. § 146; Dec. Dig. § 72.*]

(Syllabus by the Court.)

Action by Isaac Bowell against the Public Service Corporation. Verdict for plaintiff. Rule to show cause discharged.

Argued June term, 1908, before GUMMERE, C. J., and TRENCHARD and MINTURN, JJ. E. A. Armstrong, for the rule. John Boyd Avis, opposed.

PER CURIAM. There was no question made in this cause regarding the fact that the plaintiff was injured by having been thrown from his wagon, at about 7 o'clock in the evening, on Federal street, in the city of Camden, by the impact of a trolley car, which The struck the plaintiff's wagon in the rear. contention strenuously urged by defendant at the trial was that the car which caused the damage was not defendant's car, but that of the Camden & Trenton Railway Company, which was operating on the same track. This it will be perceived presented an issue of fact, which the court, upon the motion to nonsuit, and again at the close of the case upon a motion to direct a verdict, properly submitted to the jury. The verdict for the plaintiff upon this issue is now attacked by defendant, upon the ground that it is against the weight of evidence. The rule is fundamental, and the decisions are numerous in this court, that if there be any evidence which raises a debatable question upon the issue involved, a case is presented for the consideration of the jury. Smith on Negligence, p. 15; P. R. R. v. Righter, 42 N. J. Law, 180. Nor does it follow, as urged by defendant, that because the number of witnesses for the defendant predominates upon the issue formulated, the verdict must ipso facto be set aside as erroneous. Cambell v. Del. & At. Tel. Co., 70 N. J. Law, 195, 56 Atl. 303; Alexander Dyeworks v. Roufosse, 57 N. J. Law, 700, 32 Atl. 373. The weight of the testimony and the credibility of the witnesses are the determining factors for the consideration of the jury, and into this consideration the number of witnesses pro and con properly enters in the determination of the issue. But

we cannot say upon the testimony in this case, even though our reasoning might lead us to a different result from that reached by the jury, that the testimony so far preponderates in favor of the defendant as to enable us to say that the verdict of the jury is necessarily erroneous. Faux v. Willett, 69 N. J. Law, 52, 54 Atl. 520; Campbell v. Emslie, 72 N. J. Law, 37, 59 Atl. 1030.

We find nothing of substance in the remaining reasons advanced by the defendant, and we, therefore, conclude that the rule to show cause should be discharged.

The finding of the circuit court upon the facts in a contested election case is binding upon this court, under the provisions of Election Act 1898 (P. L. p. 315), if there be any evidence to support such finding.

[Ed. Note. For other cases, see Elections, Cent. Dig. § 329; Dec. Dig. § 305.*]

(Syllabus by the Court.)

Appeal from Circuit Court, Atlantic County.

Action by Curtis Somers against John C. Steelman. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued June term, 1908, before GUMMERE, C. J., and TRENCHARD and MINTURN, JJ.

Bourgeois & Sooy, for appellee.

MINTURN, J. John C. Steelman, the incumbent, was declared elected mayor of Linwood in Atlantic county, at the election in November, 1907, by one majority. His opponent, the contestant here, filed a petition in the circuit court, seeking to avoid the election of Steelman, upon the ground of misconduct of the election board and the reception of sufficient illegal votes for Steelman to change the result; and upon this issue the circuit court decided in favor of the incumbent. We are asked, upon this petition of appeal, to reverse the result declared by that court, because three electors, Ireland, Steelman, and Elder, whose votes were cast for the incumbent, had no legal right to vote, while the incumbent insists to the contrary, and contends that the vote of one Steiger, which was cast for the contestant, should not be counted, for the reason that Steiger was not entitled to vote. Upon the argument of this appeal the contest regarding Steelman's vote (a person other than the incumbent) was abandoned, thus narrowing the question at issue to the legality of the votes of Elder and Ireland cast for the incumbent, and of Steiger cast for the contestant. The act under which this appeal is taken author

izes an appeal "for error of law only." Section 175, Election Laws 1898 (P. L. p. 315). And the finding of the circuit court upon the facts, therefore, must be accepted by this court as final, if there be any evidence to support it. Cleary v. Kendall, 13 N. J. Law J. 134; In re Election of Register Essex Co., 12 N. J. Law J. 271. We think there was such evidence. Elder's vote was challenged because he did not have a legal residence in Linwood. He seemed to be unsettled in his habits, and of a nomadic disposition; but the court found upon the testimony that, if he had a habitat at all, it was at Linwood, towards which place he possessed that animo revertendi which is the guiding test in such cases. Stout v. Leonard, 37 N. J. Law, 495; Kugler v. Shreve, 28 N. J. Law, 132. Under the limited power of review contained in the statute we must accept this finding as correct. Upon similar ground the court rejected the vote of Steiger, finding upon the evidence that he was not entitled to vote at Linwood. Ireland was an invalid, and his vote was taken outside of the election booth by one of the election officers, and carried by him to the box, and there deposited. This procedure seems to have been without warrant under the statute; but it is unnecessary for the purpose of this appeal to determine the question, because the rejection of Ireland's vote upon that ground would be counterbalanced by the rejection of Steiger's vote, and would leave the result as it was returned by the election board.

We conclude, therefore, that the judgment of the circuit court should be affirmed.

(77 N. J. L. 169)

KOKOLL v. BROHM & BUHL LUMBER

CO.

(Supreme Court of New Jersey. Nov. 9, 1908.) MUNICIPAL CORPORATIONS (8 705*)-RUNAWAY TEAM-PRESUMPTION OF NEGLIGENCE.

а

The unexplained presence on a public highway of a team of runaway horses harnessed to wagon, unattended by the owner or other person, raises a presumption of negligent management on the part of the owner; and, if they collide with another vehicle on the street because they were not under proper control, the owner will be liable for damages resulting therefrom.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1515; Dec. Dig. § 705;* Highways, Cent. Dig. § 468.]

(Syllabus by the Court.)

Appeal from District Court of Newark.

Action by Anton Kokoll against the Brohm & Buhl Lumber Company. Judgment for plaintiff in the district court, and defendant appeals. Affirmed.

Argued June term, 1908, before REED, BERGEN, and VOORHEES, JJ.

BERGEN, J. While the plaintiff was repairing a carriage which stood in the street near the curb in front of his workshop, defendant's runaway team, attached to a wagon, collided with and damaged plaintiff's carriage, for which he brought a suit and recov ered the judgment now under review.

The testimony shows that plaintiff was a carriage maker, doing business in the city of Newark; that a customer had left for repair a carriage on the public street close to the curb in front of plaintiff's workshop; that while plaintiff was repairing the carriage on the street where it had been left, the collision occurred; that there was no one on defendant's wagon, the team being unattended, nor did any explanation appear for this unusual condition. We think the fact that a team of runaway horses are found dashing along a public highway, without the attendance of the owner or his servants, raises a presumption of negligence in their management and care which will render him liable, in the absence of explanation, for injuries caused by their unrestrained acts. Unger v. Forty-Second Street R. R. Co., 51 N. Y. 500. The defendant offered no explanatory facts, but permitted the presumptive negligence, arising from the case stated, to stand unchallenged. The defense insisted upon is that plaintiff was a wrongdoer because the carriage he was repairing was an obstruction to the street, contrary to a municipal ordinance, and therefore he cannot recover. Whether the ordinance has any influence in this case we are not called upon to determine, because the only question raised on this branch of the case by the specifications is that "the weight of the evidence showed contributory negli gence on the part of the plaintiff," and this court, on an appeal from the district court, will not consider the weight of evidence.

We find no error in the record brought up, and the judgment will be affirmed.

(77 N. J. L. 33)

READ V. BOARD OF EXCISE COM'RS OF
CITY OF CAMDEN et al. (two cases).
(Supreme Court of New Jersey. Nov. 17, 1908.)
INTOXICATING LIQUORS (§ 45*)-APPLICATION
FOR LICENSE-RECOMMENDATION.

Section 42 of the inns and taverns act (2 Gen. St. 1895, p. 1794), which provides that the signers of a recommendation for a license shall not have recommended another application in the same township, city, or borough for the same year, is a subsisting and paramount regulation of the subject that is unaffected by "An act to establish an excise department in cities of this state" (P. L. 1902, p. 628), or by the creation of the administrative tribunals contemplated by that act, and that is unrepealed and irrepealable by the legislative acts of such bodies.

(Syllabus by the Court.)

Application for writ of certiorari by Charles C. Read to the Board of Excise Commissioners of the City of Camden and Thomas Madden, and by the same prosecutor to the Board of Excise Commissioners of the City of Camden and Joseph Goetsinger. Proceedings reversed, and licenses set aside. Argued June term, 1908, before GARRISON, SWAYZE, and PARKER, JJ.

David H. Goff, John B. Kates, and Howard M. Cooper, for prosecutor.

GARRISON, J. The writs that have been argued together bring up licenses granted by the board of excise commissioners of the city of Camden, respectively, to Thomas Madden on January 8, 1908, and a similar license granted to Joseph Goetsinger. The first and second reasons filed by the prosecutor raise a single question that is common to both cases. These reasons are "(1) because the act of 1902 (P. L. p. 628), creating excise boards, did not confer upon said boards unlimited jurisdiction, but that said boards in the granting of licenses are bound by the law of the state regulating the sale of intoxicating liquors; (2) because the petition accompanying the application for said license did not contain the names of twelve freeholders who had not signed other applications within one year."

The state of fact upon which these reasons are predicated is established by the depositions taken under a rule of court. In case of Madden's recommendation on which there were 15 signers, all but one had signed recommendations for licenses granted on January 8, 1908, previously to the granting of Madden's license. In the case of Goetsinger out of 12 signers 7 had signed recommendations for licenses previously granted for the same year. This state of affairs, which is not in contravention of the ordinance of the excise board passed on January 5, 1903, is in direct contravention of the statute of this state, respecting inns and taverns (2 Gen. St. 1895, p. 1788). the forty-second section of which is as follows: "That the freeholders required to recommend to the court suitable persons for license to keep inns and taverns, shall be such as shall not have recommended any other application for a license under the second section of this act, in the same township, city or borough for the same year." The second section thus referred to is the one prescribing the character of the recommendation required by the inns and taverns act. The question that is thus presented is which is paramount, the ordinance of the excise board or the statute of the state, and this, in turn, depends upon the question whether the act of the Legislature that created these local boards conferred upon them unlimited and exclusive powers of legislation touching the granting of licenses to sell intoxicating liquors, or only a particular function and a qualified jurisdiction with respect

establish an excise department in cities of this state" passed in 1902. P. L. p. 628. A mere reading of the enumeration of the powers conferred by this act upon the boards established under its provisions shows that such powers in so far as they are legislative in character are confined to the making, amending, and repealing of city ordinances and by-laws. There is nothing in the act that clothes such boards with power by their ordinances, either expressly or by implication, to repeal or override the general statute law of the state regulating an important subject-matter the local administration of which is committed to such boards; nor does the act purport to be a complete scheme covering the entire subject-matter. On the contrary, its clearly expressed purpose is the administration of excise laws, and not their abrogation or repeal. If any doubt, could exist as to the soundness of this construction, it is removed as far as this court is concerned by judicial decisions that are directly in point. In Miller v. Camden, 63 N. J. Law, 501, 43 Atl. 1069, it was held that the power conferred upon boards of excise by the act of 1886 (P. L. p. 397) to prescribe penalties, although plenary in terms, was subordinate to the provisions of the city charter in so far as such ordinances were in contravention to such statute. Justice Gummere, delivering the opinion of this court in that case, said: "The Legislature had in granting its charter to Camden already declared what should be the maximum penalty for the violation of its municipal ordinances, and that maximum remained unchanged by the transfer from the city council to the excise board of the power to pass ordinances regulating the sale of liquor and to punish violations of such ordinances."

In Peer v. Board of Excise of Newark, 70 N. J. Law, 496, 57 Atl. 153, it was held that the powers of an excise board appointed under the act of 1903 (P. L. p. 369) although unlimited in terms as to the licensing of inns and taverns were to be exercised in subordination to the general act of 1889 regulating the sale of intoxicating liquors. In the very recent case of Sexton v. Excise Commissioners of Asbury Park (N. J. Sup.) 69 Atl. 470, in which the same act that is now under review was involved, it was held that the establishment of excise boards under that act did not extinguish the general limitations. upon or regulations of the exercise of the licensing power contained in the inns and taverns act or other preceding act of general legislation. The precedent statute in that case was the act of March 3, 1870 (P. L. p. 397), which prohibited the granting of a liquor license within one mile of the outside limits of a camp meeting association. This provision it was held was a subsisting limitation upon the licensing powers conferred in general terms by the act of 1902 upon the board of excise of Asbury Park with respect

mile of Ocean Grove. Justice Reed, delivering the opinion of this court, said: "The purpose of the act to establish boards of excise in cities in this state was to transfer the licensing function from the body which in the several cities then possessed the licensing power to the new board to be specially constituted. All the restrictions which controlled the old board in the exercise of its authority to license, whether existing in the charter of the city or in the general acts applicable to such city, remained to control the exercise of power by the new board. * * That the transfer of the licensing power from the common council to the board of excise commissioners under the act of 1902 did not repeal the then restriction on the licensing power seems apparent."

The conclusion in the present case to which these decisions imperatively point is that the provision of the forty-fifth section of the inns and taverns act touching the qualifications of signers to recommendations for liquor licenses is a subsisting and paramount regulation of that matter that is unaffected by the erection of the administrative tribunals effected by the act of April 8, 1902, and that is unrepealed and irrepealable by the legislative acts of such bodies.

The proceedings brought up by these writs are reversed, and the licenses so granted vacated and set aside.

(77 N. J. L. 68)

KIRBY v. LEE.

(Supreme Court of New Jersey. Nov. 18, 1908.) 1. COUNTIES (§ 65*) – OFFICERS-VACANCIESAPPOINTMENT-ELECTION.

Under Const. art. 7. § 2, par. 6, and article 5, par. 12, providing that county clerks shall be elected at an annual election for members of the General Assembly and hold office for 5 years, and that when any vacancy occurs the Governor shall fill it until a successor is elected, and Act April 4, 1898 (P. L. pp. 237, 304, §§ 6, 139), providing that county clerks shall be elected at a general election once every five years, and that any vacancy in the office shall be supplied at the general election, unless the vacancy happens within 15 days preceding the election, a vacancy is created by the death of a county clerk, and where such death is more than 15 days before the general election it may be filled at such election, though the Governor has appointed one to fill the vacancy.

[Ed. Note. For other cases, see Counties, Dec. Dig. § 65.*]

On information in the nature of a quo warranto by the state, on the relation of Samuel Kirby, against Edward S. Lee. Heard on demurrer to the information. Judgment for relator.

Argued November term, 1908, before REED, BERGEN, and VOORHEES, JJ.

Joseph H. Gaskell, for relator. Bourgeois & Sooy, for respondent.

REED, J. The question raised by the pleadings rises from the following admitted facts: Lewis P. Scott was elected county clerk of Atlantic county at a general election for members of assembly held in November, 1905. Mr. Scott died in November, 1907. Edward S. Lee, the respondent, was appointed by Gov. Stokes on December 6, 1907, to fill the vacancy created by the death of Mr. Scott. At the last general election, Samuel Kirby was elected to the office of county clerk of Atlantic county, and has qualified as such. Mr. Lee refuses to surrender the office to Mr. Kirby. This writ is sued out to inquire by what right Mr. Lee still retains the office. The insistence of Mr. Lee is that his appointment was for the unexpired term of Mr. Scott, whose term would have expired in November, 1910, had he lived to that period.

So far as the situation is controlled by the statutes of this state, the solution of the question propounded is plain. The act to regulate elections (P. L. 1898, p. 238, § 6) enacts that the clerks, registrars of deeds, and surrogates of counties shall be elected by the people of their respective counties at a general election once in every five years. Section 139 of this statute (P. L. 1898, p. 304) enacts that: "Any vacancy happening in the office of * * clerk * * of any county, shall be supplied at the general election next succeeding the happening thereof, unless such vacancy shall happen within fifteen days next preceding such election, in which case such vacancy shall be supplied at the second succeeding general election." Mr. Scott having died more than 15 days before the last general election, the people of Atlantic county had the statutory right to elect a new clerk at that election.

It is insisted, however, that this statutory provision respecting the filling of vacancies in the office of county clerk is in contravention of our state Constitution. The constitutional provisions invoked in support of this contention are article 7, § 2, par. 6, and article 5, par. 12, of that instrument. The first of these clauses is this: "Clerks and surrogates of counties shall be elected by the people of their respective counties at an annual election for members of the General Assembly. They shall hold their office for five years." The second of these constitutional provisions is this: "When a vacancy happens in the office of a clerk or surrogate of any county, the Governor shall fill such vacancy, and the commission shall expire when a successor is elected and qualified." It is not perceived how these provisions antagonize the already quoted clauses in the election act. The Constitution does not say that there shall be an election for the office of county clerk once in every five years. The clause in the election act does use that language, but that clause is to be read in con