The opinion of the court was delivered by
Fort, J.On the 13th day of March, 1903, the prosecutor was convicted before the recorder of the city of Perth Amboy of the violation of section 1 of the ordinance of the board of excise of that city.
By the agreed facts it appears that the board of excise of the city of Perth Amboy exists by virtue of an ordinance of the said city, passed under the act entitled “An act to establish an excise department in cities of this state,” passed April 8th, 1884, as amended'by act passed June 1st, 1886. Gen. Stai., p. 1806, § 111. This act provides for a board of five to be elected, by the people, but no voter is permitted to vote for more than three of the five persons to be elected. The ordinance of the common council of Perth Amboy, adopted under this statute, contains the same provisions as to the election of the members of the board.
In Bowden v. Bedell, 39 Vroom 451, this court declared this act unconstitutional. McArdle v. Jersey City, 37 Vroom 590.
*195The members of the board of excise of Perth Amboy, though organized under an unconstitutional law, may still be de fado officers and only be subject to be ousted of their functions'in a direct proceeding by quo warranto at the relation of the attorney-general. Attorney-General v. Town of Dover, 33 Vroom 138. But still, as Justice Van Syckel points out in that case, any person may challenge th-e act when it is set up as' a support for the exercise of any right or privilege. Upon a conviction under an ordinance passed under the authority conferred by this unconstitutional statute the defendant may set up its unconstitutionality to show lack of authority to sustain the conviction. Flaucher v. Camden, 27 Id. 244.
The conviction in this case is set aside.