Hudson Bergen County Retail Liquor Stores Ass'n v. Bd. Of Com'rs Of Hoboken Lupo

• Decision Date: 24 April 1947
• Docket Number: Nos. 21-24.,s. 21-24.
• Parties: HUDSON BERGEN COUNTY RETAIL LIQUOR STORES ASS'N et al. v. BOARD OF COM'RS OF HOBOKEN et al. (four cases). LUPO et al. v. HUDSON BERGEN COUNTY RETAIL LIQUOR STORES ASS'N et al.
• Court: New Jersey Supreme Court

135 N.J.L. 502

52 A.2d 668

HUDSON BERGEN COUNTY RETAIL LIQUOR STORES ASS'N et al.

v.BOARD OF COM'RS OF HOBOKEN et al. (four cases).

LUPO et al.

v.HUDSON BERGEN COUNTY RETAIL LIQUOR STORES ASS'N et al.

Nos. 21-24.

Court of Errors and Appeals of New Jersey.

April 24, 1947.

Appeal from Supreme Court.

Proceedings by John Novak and others, Sydney Gordon and Louis Gordon trading as Gordon Brothers, Angelo Anthony Lupo, Charles Marinelli and Rose Pizzino to obtain licenses to conduct ‘package liquor stores' from the Board of Commissioner of the City of Hoboken, opposed by the Hudson Bergen County Retail Liquor Stores Association. The Board of Commissioners granted the licenses, and the Hudson Bergen County Retail Liquor Stores Association appealed to Alfred E. Driscoll, State Commissioner of the Department of Alcoholic Beverage Control. The Commissioner reversed the orders of the Board of Commissioners granting the licenses, and John Novak and others brought certiorari to the Supreme Court. From a judgment of the Supreme Court, 49 A.2d 36, reversing the order of the commissioner, the Hudson Bergen County Retail Liquor Stores Association appeals.

Judgment reversed and order of commissioner affirmed.

Nathan L. Jacobs, of Newark, Samuel Moskowitz, of Union City, and Fraser, Stoffer & Jacobs, of Newark, for respondent-appellant, Hudson Bergen County Retail Liquor Stores Assn.

Walter D. Van Riper, Atty. Gen., and Samuel B. Helfand, Deputy Atty. Gen., for Alfred E. Driscoll, State Com'r of Alcoholic Beverage Control.

John J. Fallon, of Hoboken, for Board of Com'rs of City of Hoboken.

Abraham J. Slurzberg, of Jersey City, and Joseph B. McFeely, of Hoboken, for John Novak, Sophie Brotman, Emil Pfeifer, John Lensi, Daniel G. Marotta, Sydney Gordon and Louis Gordon, trading as Gordon Brothers.

Anthony P. LaPorta, of Hoboken, for Angelo Anthony Lupo.

John F. Lynch, Jr., and N. Louis Paladeau, Jr., both of Jersey City, and Benedict A. Beronio, of Hoboken, for Charles Marinelli and Rose Pizzino.

CASE, Chief Justice.

This opinion is in the case of John Novak. The Hudson Bergen County Retail Liquor Stores Association filed its petition of appeal with the State Commissioner of Alcoholic Beverage Control naming as respondents John Novak and the Board of Commissioners of the City of Hoboken. The petition alleged that on October 2, 1945, the board had granted Novak's application for a plenary retail distribution license and had erred therein because the act was an abuse of discretion in that there were already ‘ample liquor outlets' to serve the needs of the neighborhood and of the city and that the granting of the licenses was socially undesirable. The board and Novak answered separately, admitting the granting of the license, otherwise denying the allegations of the petition and setting up that the Board of Commissioners was vested with authority to issue the license and that the appellant filed the petition for the selfish purpose of unlawfully establishing a monopoly in itself and its members; and Novak added the allegation that the municipality had the authority to determine the number of licenses.

At the hearing de novo before the commissioner the appellant put in proof tending to show that the City of Hoboken was ‘a mile square city’, that in 1940 its population, according to census, was 50,000; that the number of licenses was 238 on August 1, 1945, and that the granting of 12 additional licenses since that date brought the number to 250; that 250 licenses meant one license to every 200 of the population, including men, women and children, or, allowing a recognized deduction of 40 per cent of the total population for persons under 21 years of age and therefore not lawful patrons, a licensed place for every 120 adults; that although there had been an influx of workers due to war conditions these persons were mainly daily transients and not residents; that within approximately a two block radius of Novak's establishment there were 12 other licensed places; that all of the city licensees were members of the appellant organization and that the objection to the new licenses was that the city had reached the saturation point; that every municipality in Hudson County except Hoboken and all of the cities in the state comparable in size to Hoboken had limitation ordinances; that the number of licenses in Hoboken was at the lowest per capita of population in the state and that the resulting condition was ‘terrible’. The respondents took no testimony.

The commissioner correctly set up as his standard for decision that the issuance of retail liquor licenses in the first instance rested within the reasonable discretion of the local issuing authority, that in the absence of an abuse of such discretion the action of the authority in issuing licenses should not be disturbed and that, therefore, the question for determination by him was whether the respondent board had abused its discretion in granting the additional distribution licenses. He held that the issuing of liquor licenses without regard for the paramount issue of public necessity and convenience constitutes an abuse of discretion, that the license in dispute had been so issued, that any presumption of validity of the act of the board in granting the application had been negatived by the ratio of licenses to population, that public necessity did not require the additional license, that the Board of Commissioners had ‘run riot’ in the granting of licenses and that therefore the license involved herein, with other licenses, should be cancelled. The matter went on writ of certiorari to the Supreme Court which held that Hudson Bergen Retail Liquor Stores Association was not a taxpayer or an aggrieved person and was not found by the commissioner to be such and therefore, inasmuch as the statutory appeal was given to ‘any taxpayer or other aggrieved person opposing the issuance of such license’ (R.S. 33:1-22, N.J.S.A.), was not in position to take the appeal to the commissioner, and, further, that the act of the board in granting the license was not such an abuse of discretion as warranted the revocation of the license. The original appellant now appeals from that judgment of the Supreme Court.

The sale of intoxicating liquor has from the earliest history of our state been dealt with by legislation in an exceptional way. In its legal significance it is sui generis. ‘It is a subject by itself, to the treatment of which all the analogies of the law appropriate to other topics cannot be applied’. Paul v. Gloucester County, 50 N.J.L. 585, 595, 15 A. 272, 277, 1 L.R.A. 86. ‘The sale of intoxicating liquor is in a class by itself’. Bumball v. Burnett, 115 N.J.L. 254, 179 A. 307. ‘The right to regulate the sale of intoxicating liquors, by the legislature, or by municipal or other authority under legislative power given, is within the police power of the state, and is practically limitless. It may extend to the prohibition of the sale altogether. A license is not a contract. It is a mere privilege.’ Meehan v. Board of Excise Commissioners, 73 N.J.L. 382, 64 A. 689, 690, affirmed 75 N.J.L. 557, 70 A. 363. ‘There is no inherent right in a citizen to thus sell intoxicating liquors by retail. It is not a privilege of a citizen of the state or of a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils.’ Crowley v. Christensen, 137 U.S. 86, 11 S.Ct. 13, 15, 34 L.Ed. 620. ‘The liquor business is one peculiarly subject to strict governmental control.’ Franklin Stores Co. v. Burnett, 120 N.J.L. 596, 1 A.2d 25, 26.

The licensing tribunal is as the legislature may determine. Under VII Anne (Kinsey ch. XV) licenses were granted by ‘the Justices of the Peace in their Sessions or under the Hands and Seals of two Justices of the Peace out of the Sessions, the one of them being of the Quorum.’ By XII George II (Nevill ch. LX) the authority was limited to the justices in open session only. Under the act of February 24, 1797, it was in the Court of General Quarter Sessions. Pat. p. 235. By the Inns and Taverns Act of 1846 (Rev. p. 577, 3 C.S. 2890) it was in the Court of Common Pleas. Subject to the diversion of the power from time to time to one and another class of municipalities, the Court of Common Pleas remained the basic licensing body until the repealer of 1934 (ch. 32, P.L. 1934) which dovetailed with the present Alcoholic Beverage Control Act, ch. 436, P.L.1933. Both statutes became operative upon the repeal of national prohibition. By R.S. 33:1-21, N.J.S.A., the Court of Common Pleas was the issuing authority in sixth class counties until the repealer of 1942, Ch. 159, P.L.1942. There is no merit in the contention that the authority to issue or control licenses must, constitutionally, be placed within the municipality.

It is contended that the authority which the commissioner undertook to exercise is contrary to art. 4, sec. 7, per. 11 of the state constitution, N.J.S.A., which provides that the legislature shall not pass local or special laws regulating the internal affairs of towns...