Cino v. Driscoll

• Citation: 130 N.J.L. 535,34 A.2d 6
• Decision Date: 27 September 1943
• Docket Number: No. 224.,224.
• Parties: CINO et al. v. DRISCOLL, Commissioner of State Department of Alcoholic Beverage Control.
• Court: United States State Supreme Court (New Jersey)

130 N.J.L. 535

34 A.2d 6

CINO et al.

v.DRISCOLL, Commissioner of State Department of Alcoholic Beverage Control.

No. 224.

Supreme Court of New Jersey.

Sept. 27, 1943.

Certiorari proceeding by Ortenzio Cino and another, trading as the ‘T’ Bar and Grill, to review an order of Alfred E. Driscoll, Commissioner of the State Department of Alcoholic Beverage Control, affirming an order of the Municipal Board of Alcoholic Beverage Control of the City of Newark temporarily suspending prosecutors' plenary retail consumption license to sell alcoholic beverages.

Order of Commissioner reversed, and cause remanded.

May term, 1943, before PARKER, HEHER, and PERSKIE, JJ.

Harold Simandl, of Newark, for prosecutors.

Clarence E. Kremer, of Newark, for respondent.

PERSKIE, Justice.

This case presents for review prosecutors' challenge of the affirmance, by the State Commissioner of Alcoholic Beverage Control, of the temporary suspension of their plenary retail consumption license to sell alcoholic beverages. N.J.S.A. 33:1-31.

The basic question for decision is whether the Commissioner, N.J.S.A. 33:1-30, in the discharge of his duty ‘to hear and conduct’ and ‘to render a decision’ on prosecutors' appeal, N.J.S.A. 33:1-38, was obliged, as urged, to hear the testimony de novo, or whether he could legally use, as he did, a verified transcript of the testimony upon which the local issuing authority based the challenged temporary suspension.

Prosecutors are the holders of a plenary retail consumption license to sell alcoholic beverages on their premises at 257 Market Street, Newark, N. J. N.J.S.A. 33:1-12. They were tried and convicted by the Municipal Board of Alcoholic Beverage Control, hereafter referred to as Newark Board, on a complaint which, among other things, charged that, on August 4, 1942, prosecutors did sell for consumption on their licensed premises, alcoholic beverages to Leonard Zaleski and John Joseph Makowski, minors, in violation of Rule No. 1, of Regulations No. 20, of the Department of Alcoholic Beverage Control, adopted in 1933 and prohibiting the sale and consumption of alcoholic beverages on licensed premises ‘to any person under the age of twenty-one years,’ and also in violation of N.J.S.A. 33:1-77, as amended and approved in 1939 and providing, subject to defenses not here raised, that ‘anyone who sells any alcoholic beverage to a minor shall be guilty of a misdemeanor.’ The Newark Board suspended prosecutors' license for twenty-five days.

In due season and in accordance with the regulations for appeals prescribed by the Alcoholic Beverage Control, prosecutors appealed to the Commissioner, who continued the statutory stay of their suspension. N.J.S.A. 33:1-31.

In their petition of appeal, prosecutors alleged, among other things, that the action of the Newark Board was erroneous in that it ‘was contrary to the weight of the evidence.’ Be that as it may, it is clear that prosecutors did not agree to present their appeal to the Commissioner either upon an agreed statement of facts or upon an available stenographic transcript of the proceedings before the Newark Board. Rule 8 of Regulations No. 14.

Concededly, the Commissioner did not take testimony de novo on the merits of the charges. Without notice to counsel for prosecutors, the Commissioner, in pursuance of Rule 14 of Regulations No. 14, ‘relaxed or dispensed’ his rules for this appeal (cf. Ogden v. Robertson, 15 N.J.L. 124, 126, as to the suggested impropriety for so doing) and, over objection, he used the testimony given by the minors at the hearing before the Newark Board. This testimony admittedly formed the basis for the suspension by the Newark Board. Additionally, and over further objections, the Commissioner used police teletype messages as to the whereabouts of the minors and also used ex parte affidavits of the minors which had been admitted for prosecutors for the limited purpose of identifying signatures thereto. On the proofs so used, the Commissioner affirmed the action of the Newark Board. Thereafter, on application, he continued the stay of the suspension pending application for a writ of certiorari which was granted with a continuance of the stay.

We think that the Commissioner fell into reversible error.

1. The meaning of the word ‘appeal’ in its ‘original and strictly technical sense’ was a proceeding which was introduced into equity practice from the ‘civil law’ and ‘by which the whole cause was removed from a lower to an appellate court’ and was there tried ‘de novo’ upon evidence newly introduced. Today, it may be ‘similarly’ used in law cases. It has become ‘a term of general application in the law.’ It is a term which has ‘various meanings in different jurisdictions and circumstances.’ Its meaning depends upon the ‘statutory provisions relating to appellate procedure and the different senses in which the word ‘appeal’ is used therein.' Cf. 4 C.J.S., Appeal and Error, § 17, p. 79, 3 C.J. § 28, p. 314.

The asserted obligation on the part of the Commissioner to have taken testimony de novo must therefore be found in the statute, i. e., the Alcoholic Beverage Law, N.J.S.A. 33:1-1 et seq., or it does not exist. Cf. 5 C.J.S., Appeal and Error, § 1525, p. 246; 4 C.J. § 2646, p. 726; Valentino v. Bird, 57 N.J.L. 538, 21 A. 606; Feeney v. Rueger, 57 N.J.L. 356, 31 A. 217. True, this statute does not expressly provide that the hearing of the appeal by the Commissioner shall be a hearing on testimony de novo, nor does it expressly provide that the hearing of the appeal by the Commissioner shall be, for example, as it is on appeal from the Bureau to the Pleas under our Workmen's Compensation Act, P.L.1921, c. 229, p. 731, 734, 735, N.J.S.A. 34:15-51 et seq., a trial de novo merely in the sense of ‘providing a new mind for the consideration of the testimony adduced.’ Cf. Charlock v. M. W. Kellogg Co., 132 A. 297, 4 N.J.Misc. 260; Sweigard v. Richards, 118 N.J.L. 394, 193 A. 188; Calicchio v. Jersey City Stock Yards Co., 125 N.J.L. 112, 116, 14 A.2d 465. But it is also true that a statute ‘often speaks as plainly by inference, and by means of the purpose which underlies it, as in any other manner.’ And ‘that which is clearly implied is as much a part of the law as that which is expressed.’ Cf. Brandon v. Montclair, 124 N.J.L. 135, 11 A.2d 304, 309, affirmed 125 N.J.L. 367, 15 A.2d 598; Kobylarz v. Mercer, 130 N.J.L. 44, 52, 31 A.2d 208.

[3] A reading of our Alcoholic Beverage Law discloses that our legislature vested plenary, original and appellate power in the Commissioner ‘to supervise’, inter alia, the sale of alcoholic beverages in such a manner as ‘to promote temperance and eliminate the racketeer and bootlegger.’ N.J.S.A. 33:1-3.

For enumerated causes, the Commissioner may, on hearing and notice, suspend or revoke any license whether issued by him or by any other issuing authority. N.J.S.A. 33:1-31. In such a proceeding, as in every other proceeding authorized by the statute, or appropriate for its enforcement, N.J.S.A. 33:1-35, the Commissioner ‘may examine, under oath, any and all persons whatsoever,’ compel by ‘subpoena the attendance of witnesses', and ‘production of books, records,’ etc. Such powers are, ‘in our ordinary tribunals deemed essential to the ascertainment of truth.’ Cf. Van Emburgh v. Paterson, etc., Tracton Co., 70 N.J.L. 668, 670, 59 A. 461, 462. The Commissioner is given the power ‘to establish procedure and rules' relating to appeals. N.J.S.A. 33:1-38. These and other powers vested in the Commissioner by the statute clearly bespeak the legislative mind to concentrate the responsibility of attaining the expressed objectives of the statute in one of its own choosing. It is the duty of the Commissioner to hear, conduct and decide appeals. We construe that duty, in the circumstances exhibited, to mean that the Commissioner is obliged to conduct a hearing on testimony de novo as if that obligation had been expressly stated in the statute. That this is so finds persuasive expression in the rules of the Department of Alcoholic Beverage Control pertaining to appeals, heard, conducted and decided by the Commissioner.

We are told and this is not denied that these rules, presently in force, were promulgated by the first Commissioner who was elected by a joint session of the legislature contemporaneously with the creation of the Department of Alcoholic Control. P.L.1933, c. 436, p. 1180, 1183, now N.J.S.A. 33:1-3. The following are some of the applicable rules:

‘Regulations No. 14. Appeals.’

‘6. All appeals shall be heard de novo, and the parties may introduce oral testimony and documentary evidence, but the burden of establishing that the action of the respondent issuing authority was erroneous and should be reversed, shall rest with the appellant.’

‘8. Where none of the material facts is disputed, or where there is available a stenographic transcript of the proceedings before the issuing authority, the parties may agree to present the appeal upon an...