Gaine v. Burnett

• Decision Date: 04 February 1939
• Docket Number: No. 248.,248.
• Citation: 122 N.J.L. 39,4 A.2d 37
• Parties: GAINE v. BURNETT, Commissioner of Alcoholic Beverage Control.
• Court: New Jersey Supreme Court

4 A.2d 37

122 N.J.L. 39

GAINE

v. BURNETT, Commissioner of Alcoholic Beverage Control.

No. 248.

Supreme Court of New Jersey.

Feb. 4, 1939.

Certiorari proceeding by John Gaine against D. Frederick Burnett, Commissioner of Alcoholic Beverage Control of the State of New Jersey, to review a determination that the prosecutor had violated a regulation of the State Department of Alcoholic Beverage Control.

Writ dismissed.

Argued January term, 1939, before BROGAN, C. J., and BODINE and HEHER, JJ.

Quinn & Doremus and John J. Quinn, all of Red Bank, and William F. Hanlon, of New York City, for prosecutor.

Nathan L. Jacobs, of Newark, for defendant.

BODINE, Justice.

The prosecutor of this writ brings up for review his conviction for a violation of rule 6 of Regulation 30 of the State Department of Alcoholic Beverage Control. He sold whiskey below the price fixed by the Commissioner.

The sale of intoxicating liquor from early times has been a regulated matter. By the laws of 1738-39, tavern keepers were obliged to apply to the justices of the peace annually in open court for a license. Allinson's Laws, p. 103. The justices of the peace fixed the price at which liquor was to be sold and the licensee was obliged to post, in a conspicuous place in his premises, the prices so fixed and was also subject to a penalty for a non observance of the regulation. Id. p. 105. After the revolution, like provisions were reenacted, together with a ban on gaming of any sort, in places where liquor was sold. Paterson, pp. 237, 238. The Court of Common Pleas, for a long time, under legislative direction continued to grant licenses and fixed the prices for the liquor at its Spring Session. Nixon's Digest 1709-1755, p. 340, sec. 21, Rev St 1847, sec. 21, p. 581. This provision was, however, repealed before the Revision of 1877. In that work the bulk of the act, as contained in the Revised Statutes 1847, was continued with the additions of various supplements authorizing the granting of licenses in some municipalities by township committee or common council, vesting in them discretion in the amount of licensee fees and the control of the sale of liquor.

Chapter 208, P.L.1938, p. 492 N.J.St. Annual 1938", 33:1-23.1, 23.1 note, is as follows: "Whereas, Alcoholic beverage licensees have been unduly stimulating the sale of alcoholic beverages by indiscriminate price cutting, resulting in price wars, and by excessive advertising of bargain values and cut prices; these practices are deemed detrimental to the proper operation of the liquor industry and contrary to the interests of temperance; the sale of alcoholic beverages is unusually susceptible to abuse, with resulting danger to the general public and should be strictly supervised and regulated to prevent undue stimulation of public demand for alcoholic beverages; therefore, * * * 1. The State Commissioner of Alcoholic Beverage Control is hereby vested with the following powers to be exercised in such manner as will assist in properly supervising the liquor industry and promoting temperance: The commissioner may, in his discretion, by rule and regulation, prohibit or regulate the sale of alcoholic beverages within this State in violation of any fair trade contract entered into pursuant to the legislative sanction afforded by Revised Statutes, Title 56, chapter four."

Chapter 165, P.L.1938, p. 375, R.S.1937, 56:4-5, 56:4-5 note, 56:4-6 referred to, purported to protect the owner of trade marked articles from resale, except at the price fixed by contract.

After the enactment of this legislation, and pursuant to the power vested in the Commissioner by the Control Act of 1933, R.S. 33:1, he promulgated Regulation 30. Sections 6 and 7 are as follows:

"6. Whenever any such contract and price list or altered contract or price list is filed and published as aforesaid, no retail licensee shall sell any product affected thereby except (2) at the price stipulated therein by the manufacturer or wholesaler; or (b) pursuant to and within the terms, conditions and limitations of a special permit first obtained from the Department of Alcoholic Beverage Control.

"7. Application by a retail licensee for special permit authorizing the sale of any particular product affected by a Fair Trade contract without regard to the price stipulated therein will be entertained in the following situations: (a) where the product was actually possessed by the retailer prior to the execution of the Fair Trade contract; (b) where the retailer is actually closing out his stock for the purpose of discontinuing delivering such product; (c) where the product is damaged or deteriorated in quality and notice is given to the public thereof; and (d)...