Camden, Dec. 17 – (Special) – In an order by Judge Bruce Littlejohn, presiding jurist of the Fifth Judicial Circuit, filed in the office of the clerk of courts here, the defendant’s demurrer in the case of the City of Camden, a municipal corporation vs. E. Tallmadge Bowen of Blaney has been sustained.

The matter came before Judge Littlejohn upon the demurrer by the defendant to the complaint of the plaintiff and involved an action instituted by the City of Camden against the defendant seeking to recover the sum of three hundred and twenty-three dollars alleged to be due under a contract whereby the fire department of the city furnished men and equipment to combat a fire on the defendant’s premises. The complaint alleged that by reason of various consultations between the city and Bowen, a contract existed whereby the plaintiff was to furnish the services referred to and the defendant was to pay the charges therefor.

The defendant Bowen, through his attorneys, J. Clator Arrants, Allen Murchison and John Carl West, admitted the existence of the alleged contract and entered certain defenses, including a counter claim for $8,000, which constituted damage allegedly incurred by the fire because of the alleged tardy arrival of equipment from the city to the scene of the fire.

A demurrer was interposed by the plaintiff to these defenses and the counter claim, which demurrer was heard by Judge G. Duncan Bellinger, resident judge at the June, 1951 term of common please court. Judge Bellinger, in a full and comprehensive order dated Sept. 14, 1951 sustained the demurrer to the county claim on the grounds that the contract was ultra vires and therefore void.

Said Judge Bellinger in his order “It is clear that the complaint in the action fails to state facts sufficient to constitute a cause for action because if viewed as a tort there is no statutory authority authorizing the plaintiff to maintain the action, and if viewed as an action for breach of contract, the contract sued on was ultra vires as being beyond the power of the city of Camden to enter into and therefore void.

Judge Littlejohn in his finding states that there was no appeal by either party from the said order.

“I do not deem it necessary to go into a lengthy discussion of the reasons and authorities cited by Judge Bellinger,” said Judge Littlejohn. “Sufficient to say I am in complete accord with him that the alleged contract was ultra vires and therefore void. The fact have been so construed and in my view this holding is the law in the case.

“Subsequent to Judge Bellinger’s order the defendant interposed a demurrer to the complaint on the ground that the contract which was the basis for the suit was ultra vires and therefore void. In view of Judge Bellinger’s previous holding, which, as I have already stated, I am in complete accord, it appears that the defendant’s position is correct and that the plaintiff can not sustain this action on a contract which is unquestionably ultra vires. Therefor I am of the opinion that the defendant’s demurrer must be sustained.”

The legal action taken by the city against Bowen grew out of a fire at the Bowen plant in Blaney on Nov. 21, 1949. The city billed Bowen $323 for service in combating the fire. Bowen followed with a counter-action through his attorneys, Messrs West Mutchison and Arrants, and claimed that there was a delay of one hour after the telephone appeal for help brought fire equipment from the city the scene and “because of the inadequateness of said men and equipment no substantial benefit insured to the defendant.

Bowen claimed that by virtue of a contract with the city, it was agreed that facilities of the department would be forthcoming upon the application by Bowen on the basis of usual charges for same.

He charged that the city failed and neglected to respond promptly on the call for service, equipment and men reaching the scene of the fire one hour later. During this time the fire spread, he charges, and caused considerable damage. The amount of $8,000 was given in the counter claim, caused, he charged by a break in the contract.