
    WILLIAM WENTZELL, RELATOR, v. CHARLES E. STEELMAN, ETC., ET AL., RESPONDENTS. THE STATE, EX REL. CELIA CHAMPION, v. WILLIAM WENTZELL.
    Argued May 7, 1930
    Decided July 1, 1930.
    Before Justices Paekee, Campbell and Bodine.
    Eor the relator in mandamus and respondent in quo warranto, Oole <& Cole.
    
    Eor the respondents in mandamus and relator in quo warranto, lligbee ■& lligbee.
    
   Pee Cukiam.

Without going into details as to the facts these two proceedings present but one common point of contest, and that is, on the merits, was William A. Wentzell qualified for and eligible to appointment as a member of the police force of Somers Point on April 9th, 1926, he then being admittedly of the age of forty-four years. It is insisted that he was not because under Pamph. L. 1926, ch. 324, p. 600, approved March 31st, 1926, nine days earlier, it is provided that no person shall be appointed who is under twenty-one years or over thirty-five years of age at the time of his appointment.

This act was amended by Pamph. L. 1927, p. 495, and again by Pamph. L. 1928, ch. 215, p. 387, such amendment retaining the same age qualifications.

This court recently considered this legislation in State, ex rel. Mulsoff v. Sloat, No. 268, January term, 1930 (not yet officially reported) and declared that these statutes have no validity or vitality.

We held in Mulsoff v. Sloat, supra:

"Pamph. L. 1915, ch. 373, p. 688, by section 2, fixes the ages of such appointees at twenty-one to fifty-five years. By the Home Rule act (2 Cum. Supp. Comp. Stat., p. 2154, §§ *136-1604) this provision of the act of 1915 was carried into that act and by Pamph. L. 1917, ch. 204, p. 575 (at p. 665), the act of 1915, supra, was specifically repealed. By Pamph. L. 1926, ch. 324, p. 600, the legislature attempted to amend section 2 of the repealed act of 1915, supra, by fixing the ages of twenty-one to thirty-five years. This was ineffective, being constitutionally inhibited. Again by Pamph. L. 1928, ch. 215, p. 387, there was a like, ineffective and constitutionally prohibited attempt to amend and revive this repealed act of 1915, supra. This leaves paragraph 4, article 15 of the Home Rule act, as amended by Pamph. L. 1920, ch. 184 (2 Cum. Supp. Comp. Slat., §§ 136, 1604), as the only valid existing legislation upon this subject and it fixes the age limits at twenty-one to fifty-five years.”

It becomes apparent, therefore, that the appointment of Wentzell is legally free from attack because of his age at the time of such appointment.

We have thought it advisable to indicate our view of the very right of WentzelPs claim to the office, although in neither of the cases at the head of this memorandum is that view available as a basis of decision because of procedural reasons.’

Mandamus by Wentzell will not lie, as another is in occupation of the office of chief of police which Wentzell claims. Leeds v. Atlantic City, 52 N. J. L. 332. Quo Warranto against Wentzell will not lie, because he is not in occupation of the office to which his right is challenged by Mrs. Champion, the relator in quo warranto.

The result is that the rule to show cause for a mandamus, and likewise the rule to show cause for leave to file an information, must be discharged, with costs.  