Franklin Stores Co. v. Burnett
| Decision Date | 15 August 1938 |
| Docket Number | No. 205.,205. |
| Parties | FRANKLIN STORES CO. v. BURNETT, Commissioner of Alcoholic Beverages. |
| Court | New Jersey Supreme Court |
Proceeding on writ of certiorari by the Franklin Stores Company against D. Frederick Burnett, Commissioner of Alcoholic Beverages, challenging a rule promulgated by the Commissioner prohibiting the sale on licensed premises of certain substances which may be used for the manufacture of alcoholic drinks.
Writ dismissed.
Argued May term, 1938, before CASE, DONGES, and PORTER, JJ.
Louis B. Englander, of Newark, for prosecutor.
Nathan L. Jacobs, of Newark, for defendant.
In this proceeding prosecutor challenges a rule promulgated by the Commissioner of Alcoholic Beverages prohibiting the sale on licensed premises of certain substances which may be used for the manufacture of alcoholic drinks.
Prosecutor moves to strike certain affidavits from the return. Without passing upon the propriety of including the affidavits in the return, we think they may remain in the record because of the following stipulation entered into at the time of the taking of depositions:
"It is stipulated that the matter set forth in the Commissioner's return to the writ including the affidavits which form part thereof shall be considered as though having been given on direct examination under oath here reserving to the prosecutor his rights to object to the competency, materiality, and relevancy of the affiants' testimony, and reserving to the prosecutor the right of cross-examining said witnesses and providing further that the prosecutor reserves the right to object to the offer of any testimony on behalf of the defendant at that time on the ground that after the filing of his return the defendant has no right to take testimony in support thereof."
Insofar as they may be incompetent, immaterial and irrelevant, the affidavits will not be considered. Prosecutor apparently has not pursued his right to cross-examination of the affiants, and must be presumed to have waived it. As to the last objection, it is well settled that a defendant in certiorari has an equal right with a prosecutor to present proofs in this court.
Rule 18 of the Commissioner, which is under attack, provides: "No licensee shall sell or possess, or allow, permit or suffer on or about the licensed premises, any malt, hops, oak shavings or chips, flavoring or coloring agents, cordial or liquor extracts, essences or syrups, or any ingredient,...
To continue reading
Request your trial
-
Mazza v. Cavicchia
...granted the Director the power to promulgate rules and regulations, R.S. 33:1--39, N.J.S.A.; see Franklin Stores Co. v. Burnett, 120 N.J.L. 596, 1 A.2d 25 (Sup.Ct.1938); Greenspan v. Division of Alcoholic Beverage Control, 12 N.J. 456, 459, 460, 97 A.2d 413 3. The appellant then questions t......
-
Grand Union Co. v. Sills
...other matters as might become necessary in the stringent administration of the law. N.J.S.A. 33:1--39. In Franklin Stores Co. v. Burnett, 120 N.J.L. 596, 598, 1 A.2d 25 (Sup.Ct.1938), this regulatory power was upheld in an opinion which reaffirmed the State's 'practically limitless' power t......
-
Boller Beverages, Inc. v. Davis
...control in every phase. Therefore the authority to regulate is broadly said to be practically limitless. Franklin Stores Co. v. Burnett, 120 N.J.L. 596, 598, 1 A.2d 25 (Sup.Ct.1938); Hudson Bergen County Retail Liquor Stores Association v. Hoboken, 135 N.J.L. 502, 503, 52 A.2d 668 (E. & A.1......
-
X-L Liquors v. Taylor
...& A.1939), price-fixing was held to fall within the general rule-making power of R.S. 33:1--39, N.J.S.A.; In Franklin Stores Co. v. Burnett, 120 N.J.L. 596, 1 A.2d 25 (Sup.Ct.1938), a rule prohibiting possession by licensees of certain articles designed for the manufacture of 'homemade' liq......