17 Club, Inc., In re, A--186

• Decision Date: 25 May 1953
• Docket Number: No. A--186,A--186
• Citation: 26 N.J.Super. 43,97 A.2d 171
• Parties: In re 17 CLUB, Inc.
• Court: New Jersey Superior Court — Appellate Division

Page 43

26 N.J.Super. 43

97 A.2d 171

In re 17 CLUB, Inc.

No. A--186.

Superior Court of New Jersey Appellate Division.

Argued May 4, 1953.

Decided May 25, 1953.

Maurice C. Brigadier, Jersey City, for appellant.

Samuel B. Helfand, Deputy Atty Gen., for respondent (Theodore D. Parsons, Atty. Gen.).

Before Judges EASTWOOD, BIGELOW and JAYNE.

The opinion of the court was delivered by

JAYNE, J.A.D.

The uncertainty of those future eventualities that are reasonably comprehensible must be considered ordinarily to inhere in one's choice of what is best to do. But one cannot always expect to rescue oneself from the disadvantageous consequences of a speculative choice of action by means of grasping upon some thin thread of the law however ably the strand is polished.

This corporate licensee holding a plenary retail consumption license was charged by the Director of the Division of Alcoholic Beverage Control with the violation of Rules 5 and 6 of State Regulations No. 20. Confidently supposing that a plea of Non vult would be conducive to the imposition of a relatively light and slender penalty, such a plea was submitted and as contemplated a hearing was waived. But, alas, the license was not suspended Pro tempore but revoked.

It then became realistically apparent to the licensee that the expectation to lose the anchor but save the ship was fanciful and inaginative. Figuratively expressed, the licensee naturally desired to play his hand over again, but the Director of the Division would not accede. The application of the licensee to subduct the unserviceable plea of Non vult and contest the charges was denied. The licensee feels aggrieved, hence this appeal.

We note initially that the licensee in the submission of the plea of Non vult was represented by an attorney. Counsel now engaged to prosecute the appeal proposes that a plea of Non vult is legally inappropriate and unauthorized in a proceeding of this nature; that the order of revocation of the license was grossly excessive in its punitive effect and constituted a punishment incommensurable with such a plea, and that the Director erroneously denied the licensee a hearing on the petition to permit a retraction of the plea and supplant it by a plea of not guilty.

The diligently prepared briefs of counsel treat of the origin, nature, import, purpose, and effect of a so-called plea of Non vult or Nolo contendere in other than capital cases in the courts of criminal jurisdiction. Despite the inducement we refrain from a profuse discussion of the general subject. Suffice here to state that in our courts the plea of Non vult or Nolo contendere has the equivalent pragmatical effect of a plea of guilty in the case in which it is entered, and its acceptance does not legally abridge or reduce the power of the court to impose the maximum penalty fixed by our pertinent statute as the punishment for the specific offense. Peacock v. Judges of Court of Hudson Quarter Sessions, 46 N.J.L. 112 (Sup.Ct.1884); State v. Henson, 66 N.J.L. 601, 608, 50 A. 468, 616 (E. & A.1901); State v. Osborne, 79 N.J.Eq. 430, 435, 82 A. 424 (Ch.1911); State v. Alderman, 81 N.J.L. 549, 79 A. 283 (E. & A.1911); Waters v. Court of Special Sessions, 132 N.J.L. 44, 38 A.2d 577 (Sup.Ct.1944); Kravis v. Hock, 136 N.J.L. 161, 165, 54 A.2d 778 (E. & A.1947); State v. Griffith, 14 N.J.Super. 77, 84, 81 A.2d 382 (App.Div.1951); State v. Phillips, 20 N.J.Super. 60, 63, 89 A.2d 466 (App.Div.1952), affirmed 10 N.J. 503, 92 A.2d 385 (1952).

The early records reveal that the declaration or plea has long been recognized as an implied confession in which the defendant 'doth not directly own himself guilty but in a manner admits it by yielding to the king's mercy.' 2 Hawkins P.C. 31; 1 Chitty Crim.Law (1819 ed.), 430, c. 10. In practice the effect of the plea left nothing for the court to do except to impose sentence. Commonwealth v. Ingersoll, 145 Mass. 381, 14 N.E. 449 (Sup.Jud.Ct.1888); U.S. v. Norris, 281 U.S. 619, 623, 50 S.Ct. 424, 425, 74 L.Ed. 1076 (1930); State v. Alderman, supra.

The plea has been advantageous to a defendant in that while it produces the implied confession of guilt in the criminal prosecution, it is not operative against him in a civil action arising from the commission of the same wrong. State v. Henson, supra.

It is not surprising that the plea has become the prototype of an answer or response of an accused to charges and complaints in punitive or disciplinary proceedings conducted by administrative agencies.

While statutes creating an administrative agent or body quite uniformly confer upon the agent or body the power to prescribe rules of practice and procedure to govern the proceedings before them, yet we have little, if any, doubt of the implied power of such agencies to adopt any fair and reasonable practice and procedure conducive to the ascertainment of the facts upon which the agency is authorized to decide and act and which will promote the ends of justice in the administration and effectuation of the statutory purpose. 73 C.J.S., Public Administrative Bodies and Procedure, §§ 71--113, pp. 399--434; 42 Am.Jur. 447; Cooper, Am. Agencies and the Courts (1951), p. 102.

Our Legislature has empowered the Director of the Division of Alcoholic Beverage Control 'to do, perform, take and adopt all other (in addition to those specified) acts, procedures and methods designed to insure the fair, impartial, stringent and comprehensive administration' of our Alcoholic Beverage Law. R.S. 33:1--23, 39, N.J.S.A. Pleas of Non vult in proceedings of this nature have been heretofore recognized in Vesey v. Driscoll, 132 N.J.L. 293, 40 A.2d 291 (Sup.Ct.1944); Galsworthy, Inc., v. Hock, 3 N.J.Super. 127, 65 A.2d 610 (App.Div.1949).

Ought we participate in toying technically with terminology? Suppose this licensee upon being served with a copy of the charges and informed of the date designated for the hearing had not in his response employed the symbolic Latin term 'non vult' but replied, 'A hearing is unnecessary. I do not desire to contest the charges,' would the consequential import and effect of his answer be significantly different? We think not.

The axis of this appeal is the denial of the licensee's petition to withdraw his previous answer to the charges, now to deny them and to contest their verity at a hearing. The denial of that privilege by the Director is said to have been an unfair and mistaken exercise of discretion. We consequently inquire into the relevant circumstances.

On June 4, 1952 a copy of the charges was dispatched by registered mail to the licensee together with a notice of the date, time and place of the hearing thereof. The communication contained the following instructions:

'You must enter a plea of guilty or non vult or not guilty not later than Thursday, June 12, 1952 or at any time before that date. The plea may be submitted by letter provided it reaches us not later than that date.'

The latter request is made in pursuance of the recommendations of a bulletin the pertinent portion of which reads:

'* * * Effort should be made to obtain the licensee's plea to the charges prior to the hearing date so that, in the event that a confessive plea of guilty or non vult is entered (thus making formal hearing unnecessary), the Director may be notified so that witnesses from the Division will not needlessly be compelled to attend the hearing.'

The mature aforethought devoted by the officers of the licensee and its attorney to the submission of the plea of Non vult is clearly exhibited by a reproduction of the following correspondence between the attorney of the licensee and the representatives of the Director. It begins with the letter of the attorney dated June 12, 1952:

'I represent the 17 Club, Inc. of 17 William Street, Newark, New Jersey, upon whom you have served notice and charges and have advised that plea must be entered on or before June 12, 1952.

'In behalf of said 17 Club, Inc. I wish to enter a plea of 'not guilty' to both charges.

'I will be unable to prepare my defense for hearing on June 19, 1952 because I have a crowded calendar prior to and on that date.

'I expect to be away from the office from June 23rd through July 4th and shall appreciate your adjourning the date for hearing to a date subsequent to July 5, 1952 and advising me of said date.'

The Deputy Director replied on the same day:

'This acknowledges your letter dated June 12, 1952 entering a plea of not guilty on behalf of the above named licensee in pending disciplinary proceedings and requesting adjournment of the hearing presently scheduled for June 19th.

'The plea of not guilty has been entered and pursuant to your request and for the reasons stated in your letter, the hearing is being adjourned to Wednesday, July 9, 1952, at 10:00 a.m.'

Further adjournments of the hearing eventuated and on August 20, 1952 the attorney of the licensee transmitted the following communication:

'I have been requested and authorized by my client in the above matter to enter a change of plea on each of the charges from 'not guilty' to 'non vult.'

'I herewith make such change of plea on each of the charges so...