Bd. of Com'rs of Town of Phillipsburg v. Burnett

• Decision Date: 22 July 1940
• Docket Number: No. 243.,243.
• Citation: 14 A.2d 533
• Parties: BOARD OF COM'RS OF TOWN OF PHILLIPSBURG v. BURNETT et al.
• Court: New Jersey Supreme Court

14 A.2d 533

BOARD OF COM'RS OF TOWN OF PHILLIPSBURG

v. BURNETT et al.

No. 243.

Supreme Court of New Jersey.

July 22, 1940.

Certiorari proceeding by the Board of Commissioners of the Town of Phillipsburg against D. Frederick Burnett, Commissioner, and others, to review an order of the State Alcoholic Beverage Commissioner wherein an ordinance of the Town of Phillipsburg was set aside and two new plenary retail distribution licenses granted by the Board of Commissioners of the Town of Phillipsburg were canceled.

Reversed in part and affirmed in part.

Argued May term, 1940, before CASE, DONGES, and HEHER, JJ.

Sylvester C. Smith, Jr., of Newark, for prosecutor.

Edward J. Dorton, of Jersey City, for D. Frederick Burnett.

Robert B. Meyner, of Phillipsburg, for Herbert J. Franco and William H. Swick.

CASE, Justice.

The writ brings up an order of the State Alcoholic Beverage Commissioner made March 11, 1940, wherein (1) an ordinance of the Town of Phillipsburg was "set aside, vacated and repealed pursuant to the power conferred by R.S. 33:1-41 [N.J. S.A. 33:1-41]" and (2) two new plenary retail distribution licenses granted by the Board of Commissioners of the Town of Phillipsburg were "cancelled and declared null and void, and of no force and effect".

On May 22, 1935, the Board of Commissioners of the Town of Phillipsburg adopted a resolution, pursuant to the provisions of P.L.1934, ch. 85, limiting the number of plenary retail distribution licenses to three. Three licenses were granted thereunder and are not questioned in this litigation. On August 16, 1939, the Board adopted an ordinance, pursuant to the provisions of R.S. 33:1-40, N.J.S.A. 33:1-40, infra, fixing the number of plenary retail distribution licenses at five and repealing the previous limitation. Thereupon the board issued two additional licenses. It is that ordinance that the Commissioner of Alcoholic Beverages undertook to repeal and those licenses that he declared void. Prosecutor contends that the power to enlarge or to remove entirely the limitation on the number of licenses lay in the governing body of the town, that the commissioner was without authority to vacate or repeal the ordinance, that the statute, if and to the extent that it undertook to grant such authority, is unconstitutional and that, assuming authority, the evidence does not support the commissioner's decision.

The controlling statute was originally passed as ch. 436, P.L. 1933, and is now embraced within the revision as ch. 1 of Title 33, N.J.S.A. 33:1-1 et seq. The sections which have particular application are:

33:1-3, N.J.S.A. 33:1-3, which established the office of state commissioner of alcoholic beverages and provided that "It shall be the duty of the commissioner to supervise the manufacture, distribution and sale of alcoholic beverages in such a manner as to promote temperance and eliminate the racketeer and bootlegger";

33:1-5, N.J.S.A. 33:1-5, providing that each municipality of 15,000 population or over may establish a municipal board of alcoholic control;

33:1-12, subd. 3a, N.J.S.A. 33:1-12, subd. 3a, providing that the governing body may, by ordinance, enact that no plenary retail distribution license shall be granted within its municipality;

33:1-19, N.J.S.A. 33:1-19, providing that "It shall be the duty of the governing board or body of each municipality, except in such municipalities as shall have created municipal boards pursuant to this chapter, in which latter event it shall be the duty of such respective municipal boards, to administer the issuance of all other [viz., inclusive of plenary retail distribution] licenses within their respective municipalities, in accordance with this chapter, and forthwith to report the issuance of all such licenses to the commissioner. The issuing authorities constituted by this section are sometimes hereinafter referred to as 'other issuing authority'";

33:1-22, N.J.S.A. 33:1-22, providing that if "the other issuing authority" shall refuse to issue or shall issue a license an aggrieved party may appeal to the commissioner;

33:1-31, N.J.S.A. 33:1-31, providing that any license, whether issued by the commissioner or any other issuing authority, may be suspended or revoked by the commissioner and that the other issuing authority may suspend or revoke a license issued by it, upon the grounds set forth therein;

33:1-38, N.J.S.A. 33:1-38, authorizing the commissioner to order "the other issuing authority" to issue or to revoke a license and "to make all findings, rulings, decisions and orders as may be right and proper and consonant with the spirit of this chapter";

33:1-40, N.J.S.A. 33:1-40, providing "The governing board or body of each municipality may, as regards said municipality, by ordinance, limit the number of licenses to sell alcoholic beverages at retail, but any such limitation adopted by ordinance or resolution prior to July...