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If this be a violation of section 90, it is likewise a violation for anyone to have three friends come to his home to play cards; for a few friends to meet at a club; for the near relatives of a young couple to attend their wedding; for a child to be baptized with the usual number of sponsors present. Examples might be multiplied indefinitely.

It may be freely conceded that epidemics of contagious and infectious disease may be, and have been, so severe and dangerous as to justify the most drastic rules against personal contact of individuals, but there is nothing in the complaint to show that such conditions prevailed in this case, and if they did prevail, the ordinance is not such a rule as to meet the emergency, and, as we have said, does not support the complaint, which under well-recognized rules must be taken at the minimum of the facts charged.

The order of the Passaic pleas is affirmed.

JOHN HADELMAN, PROSECUTOR. v. GEORGE HARRIS, RESPONDENT.

Submitted March 20, 1919-Decided June 2, 1919.

1. Under the supplement of 1903 to the Landlord and Tenant act (Pamph. L., p. 26; Comp. Stat., p. 3070), as amended in 1910 (Pamph. L., p. 233), 1913 (Pamph. L., p. 743) and 1915 (Pamph. L., p. 96), a justice of the peace has no jurisdiction in summary dispossession proceedings in cases where the premises are situated in a city where there is a District Court.

2. Jurisdiction over the subject-matter of a suit cannot be conferred by consent, nor can the right to object to the want of it be lost by acquiescence or neglect.

On certiorari,

Before Justices PARKER and MINTURN.

93 N. J. L.

Hadelman v. Harris.

For the prosecutor, Edward F. Merrey.

For the respondent, Francis Scott.

The opinion of the court was delivered by

PARKER, J. The fundamental question is as to the jurisdiction, if any, of a justice of the peace in summary proceedings to dispossess a tenant, where the premises are in a city which has a District Court. The facts are not disputed; the premises are in the city of Paterson; that city has a District Court; and in this case a justice of the peace entertained the landlord's complaint, issued a summons and took cognizance of the case to judgment and warrant of dispossession. This writ, of course, challenges his jurisdiction, and that alone; and whatever jurisdiction he had must come from the statute.

It is manifest that under the act of 1903, page 26, found in Comp. Stat., p. 3070, which was enacted in view of the decision in Jonas Glass Co. v. Ross, 69 N. J. L. 157, a justice of the peace had no jurisdiction in such a case as this. No question is raised on that score; and the amendment of 1910 (Pamph. L., p. 233) merely adapted the statute to the new plan of "judicial districts" in and for which District Courts were established about that time. In 1913 the legislature undertook to amend further 'the act of 1903 by reframing the first two sections; the amended first section, by some oversight, provided only for the case of holding over after the expiration of the term and omitted cases of default in payment of rent. Pamph. L., pp. 743, 744. This was corrected by Pamph. L. 1915, p. 96, and the act as finally amended is that to be considered at this time. It provides, in section 1 (abstracting the language except where quoted), that any tenant, &c., of any houses, lands or tenements and the assigns, &c., of such tenant may be removed from such premises "by any District Court in the county where such premises are situated or by any justice of the peace of the County where such premises are situated in the manner hereinafter prescribed in the following cases:" (I.) holding over

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after expiration of term and notice; (II.) default in rent. Section 2, the first of those relating to manner of procedure, contains the provisions that "the landlord may make affidavit of the facts," and may file the same with the clerk of any District Court within the limits of the county in which the premises are situated or in case the premises do not lie within a first-class county or within a city or a judicial district in which there is a District Court, then with any justice of the peace of the county in which the premises are situated; and on filing such affidavit the clerk or justice of the peace with whom the same is filed shall issue a summons, &c., &c.

Section 1, taken alone, seems to confer jurisdiction generally on both District Courts and justices of the peace; but when considered with section 2, it is plain that the jurisdiction of the justices is restricted to cases where the premises lie neither within a first-class county nor in a city or judicial district in which there is a District Court; for in all other cases there is only one class of officials with whom the affidavit may be filed-i. e., the clerks of District Courts; and as the summons can issue and the case proceed only on filing of the affidavit, and when filed with the clerk, that functionary is to issue summons, it is plain that a justice who is not empowered to receive the affidavit is not invested with jurisdiction to issue the summons or to hear the case.

It follows, therefore, that the proceeding brought up in this case was coram non judice for want of jurisdiction of the subject-matter.

The point is made that there was an appearance and a defence on the merits, and the objection to jurisdiction was therefore waived. But waiver is not applicable in cases where the tribunal had no jurisdiction of the subject-matter. School Trustees v. Stocker, 42 N. J. L. 115; Wheeler & Wilson Manufacturing Co. v. Carty, 53 Id. 336; Collins y. Keller, 58 Id. 429.

The judgment and proceedings will be set aside, with costs.

93 N. J. L.

Scheible v. Hightstown.

JOHN

G. SCHEIBLE, PROSECUTOR, V. BOROUGH OF
HIGHTSTOWN ET AL., RESPONDENTS.

Submitted February 10, 1919-Decided March 4, 1919.

1. The requirements of the Soldiers' Vote act (Pamph. L. 1918, p. 437) apply substantially to the same extent to a vote on local option, taken at a general election, as at a special election, and if the provisions of such Soldiers' Vote act have not been complied with, such election is invalid.

2. It is not a substantial compliance with the provisions of the Soldiers' Vote act (Pamph. L. 1918, p. 437) that the secretary of state sent special agents to some of the military camps and a bundle of ballots and other papers by mail to the commanding officers of other camps, hoping that the ballots in some way would reach those for whom they were intended, when it appears that neither ballots nor copies of the law nor voting instructions were mailed to the several voters.

3. Prosecutor held not barred by laches, where the election took place in November, thirty days thereafter were allowed by law to count the soldier vote, and writ was applied for and allowed in January.

On certiorari.

Before Justices PARKER and MINTURN.

For the prosecutor, Harry Heher.

For the respondents, Aaron V. Dawes, James Hammond and George S. Hobart.

The opinion of the court was delivered by

PARKER, J. The writ attacks the validity of a popular vote taken at the last general election on the question whether the sale of liquor should be prohibited thereafter in the borough of Hightstown. The principal question in the case. and the only question requiring specific examination for the purposes of a decision, is that relating to the casting of the soldier and sailor vote. We have already had occasion to deal with this subject in the group of cases recently decided under

Scheible v. Hightstown.

93 N. J. L.

the title of Miller v. Montclair, 92 N. J. L. 292. In those cases, however, the election was called for a special day, and is known to the statute as a special election. We sustained the finding of the Chief Justice and other justices, sitting singly as a summary court under the statute, that the several elections must be set aside because of failure to comply with the requirements of the Soldiers' Vote act (Pamph. L. 1918, p. 437), but expressed no view with relation to the soldier vote at a local option referendum held at the same time and voted on the same ticket with the general election. Individual justices had intimated a distinction, as in the opinions of Mr. Justice Kalisch in the Holman Case, 104 Atl. Rep. 212, and the Lamb Case, 105 Id. 448, the result in which we upheld a few days ago. For the first time, we think, this question relating to a local option ballot voted on the day of general election is squarely presented as a necessary ground of decision. It comes up in a double aspect, viz.: (1) Is it necessary to the validity of the result of an election held at such a time that the requirements of the Soldiers' Vote act should be substantially complied with; and (2), if so, was there a failure of such substantial compliance?

On the first branch of the inquiry the result we reach is that the substantial compliance is a requisite to the validity of the vote even at a general election. The act itself makes no distinction in its mandate; by its express language it applies to general, special and primary elections. And, as we observed in the Miller case, the act disregards the doctrine of constructive notice, even to some extent as to its own existence as a law, by requiring transmission to the soldier of a copy of the act, or printed directions how to cast a ballot thereunder, official or unofficial. We also held that failure of compliance was not a mere irregularity; and the fact that strict compliance was rendered impracticable by reason of the exigency of national regulations did not excuse the state and local authorities from the performance of the duties laid on them by the statute. As was said by Mr. Justice Bergen, in deciding the case of Thompson r. South Brunswick, in

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