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Riper v. Fleming

New Jersey Supreme Court


Decided: January 6, 1948.

WALTER D. VAN RIPER, ATTORNEY-GENERAL, EX REL. ROBERT E. SCOTT, RELATOR,
v.
JOSEPH P. FLEMING, RESPONDENT

On quo warranto.

For the relator, Hobart, Minard & Cooper (Doane E. Minard, of counsel).

For the respondent, Walter D. Van Riper.

Before Justices Bodine and Wachenfeld.

Wachenfeld

[136 NJL Page 358]

The opinion of the court was delivered by

WACHENFELD, J. Application was made by rule to show cause for leave to file an information in the nature of quo warranto challenging the validity of respondent's appointment as a member of the New Jersey Real Estate Commission. The parties have by agreement included in the record an information and demurrer and request this court, on the return of the rule, to make a final determination on the merits.

On November 19th, 1946, respondent was appointed a member of the New Jersey Real Estate Commission, which office he assumed and continues to occupy. Among other

[136 NJL Page 359]

legislative qualifications, the vocation of each member of the commission "for a period of at least ten years prior to the date of his appointment shall have been that of a real estate broker." R.S. 45:15-5. It is undisputed that respondent has never been licensed in New Jersey as a real estate broker.

Relator is a citizen and taxpayer residing in Union County, New Jersey. He is a duly licensed real estate broker and appears to be prosecuting this action in good faith. The sole issue is the effect of the inability of respondent to come within the vocational qualification as established by the legislature.

The New Jersey Real Estate Commission is a state agency created by statute. The legislature can lawfully determine the qualifications of the members of that commission and the manner of appointment, since they are not prescribed by the State Constitution. An appointment which fails to fulfill those prerequisites is invalid and must be so determined by this court. Driscoll v. Sakin, 121 N.J.L. 225; affirmed, 122 Id. 414; DePasquale v. Steineder, 121 Id. 281; Haines v. Appleton, 123 Id. 492.

Judgment of ouster will be entered.

19480106


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