In Re An Act Concerning Alcoholic Beverages., 1-A.

• Decision Date: 30 April 1943
• Docket Number: No. 1-A.,1-A.
• Citation: 31 A.2d 837,130 N.J.L. 123
• Parties: In re AN ACT CONCERNING ALCOHOLIC BEVERAGES.
• Court: New Jersey Supreme Court

130 N.J.L. 123

31 A.2d 837

In re AN ACT CONCERNING ALCOHOLIC BEVERAGES.

No. 1-A.

Supreme Court of New Jersey.

April 30, 1943.

Proceeding in the matter of the alleged nullity of ‘An Act concerning alcoholic beverages, and supplementing Chapter 1 of Title 33 of the Revised Statutes', N.J.S.A. 33:1-1 et seq., commonly known as Chapter 264 of the Laws of 1942 of the State of New Jersey, N.J.S.A. 33:1-93.1 et seq.

Petition dismissed.

CASE and PARKER, JJ., dissenting.

January term, 1943, before BROGAN, C. J., and PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, and COLIE, JJ.

Osborne, Cornish & Scheck, of Newark (Ervin S. Fulop, of Newark, of counsel), for petitioners.

George H. Stanger, of Vineland, for respondent Neil Deighan.

William C. Egan, of Jersey City, for respondents William G. Wellhofer et al.

PERSKIE, Justice.

Pursuant to N.J.S.A. 1:7-4, petitioners, on November 8, 1942, attacked the enactment of L.1942, c. 264, p. 708, N.J.S.A. 33:1-93.1 et seq., approved June 25, 1942 (‘An Act concerning alcoholic beverages, and supplementing chapter one of Title 33 of the Revised Statutes'). That attack is based upon the broad statutory grounds that petitioners had ‘reason to believe’ that L.1942, supra, was not ‘approved by the governor’ or ‘otherwise made effective as law in the manner required by the constitution * * *.’ N.J.S.A. 1:7-1.

The statute thus invoked concededly permits an attack only upon the ‘procedure’, the ‘machinery’ of making laws and not upon the constitutional validity of their ‘provisions.’ For the statute relates ‘exclusively’ to the matter of ‘passage and enactment, and not to the effect of the statute when so enacted.’ In re Borg, 123 N.J.L. 104, 105, 106, 8 A.2d 221, 222. The case at bar was so argued and briefed and is considered and determined accordingly.

And since the legislature has permitted such attack to be made upon its enactments, ‘which (enactments) but for such permission would be unexpungable’ (Cf. Pangborn v. Young, 32 N.J.L. 29), petitioners must establish the truth of what they assert by ‘clear and convincing evidence.’ In re Low, 88 N.J.L. 28, 30, 95 A. 616. Cf. In re Petition of Attorney General, 98 N.J.L. 586, 121 A. 736.

The question we are therefore called upon to decide is whether petitioners have properly established as charged that the President of the Senate in approving Senate Bill #296, now L.1942, supra, acted in excess of the power conferred by Art. V, Par. 13 of the state constitution, N.J.S.A., which, so far as is here pertinent, provides: ‘In case * * * of the governor[s] * * * absence from the state * * * the powers, duties * * * of the office shall devolve upon the president of the senate * * * until the governor absent * * * shall return * * *.’

The evidence which gives rise to the stated question is as follows: Hon. Charles Edison, governor of the state, in planning to attend, as he did, a conference of governors at Asheville, N. C., ‘made arrangements' with Mr. I Grant Scott, president of the senate, ‘to act in his (governor's) absence from the state.’ In pursuance of those arrangements, and before assuming the duties of acting governor, Senator Scott, on June 20, 1942, took the statutory oaths of office. N.J.S.A. 52:15-4 and N.J.S.A. 41:1-1 et seq. Thereafter, and for a ‘little over two weeks' ‘until some time in July’ (the exact date is not made to appear) Senator Scott, without challenge or protest on the part of anyone, openly exercised the powers, duties and functions of the office of the governor. He was recognized by members of Governor Edison's staff and by the people as the acting governor of the state. During the stated period, he approved some seventeen bills which, according to the records of the secretary of state, are now the following numbered chapters of the public law (1942) of the state: approved on June 25, 1942, p. 708, c. 264, N.J.S.A. 33:1-93.1 et seq. (Act concerning alcoholic beverages, here in question), approved June 29, 1942, p. 709, c. 265 (Act appropriating $10,000 to the Commission on Historic Sites), p. 710, c. 266, (Act appropriating $10,000 to the Commission on Historic Sites), and p. 711, c. 267 (Act providing for no lapsing of unexpended balance of appropriations made), approved June 30, 1942, p. 711, c. 268, N.J.S.A. 39:3-84 (Act amending section 39:3-84 of the Revised Statutes), p. 713, c. 269, N.J.S.A. 18:13-19 (Act amending section 18:13-9, service determining seniority right of teachers), p. 715, c. 270 (Act making appropriation to the Commission on Interstate Co-operation), p. 715, c. 271, N.J.S.A. 40:184-27 (Act amending act authorizing cities to sell certain lands), p. 717, c. 272 (Act concerning State Highway Department), p. 718, c. 273 (Act transferring $100,000 to State Purchase Fund), p. 719, c. 274, N.J.S.A. 12:5-9 note (Supplement to Title 12, ch. 5 of Revised Statutes, N.J.S.A. 12:5-1 et seq.) p. 720, c. 275 (Act providing payment of temporary bonus to certain state employees), p. 725, c. 276 (Act appropriating $10,000 to the Legislature), p. 726, c. 277 (Act appropriating $15,000 to Department of Alcoholic Control), p. 727, c. 278 (Act authorizing State House Commission to sell land in Kearny to a Post of the Veterans of Foreign Wars) p. 728, c. 279, N.J.S.A. 1:3 note (Act concerning sale of Revised Statutes, and p. 730, c. 280 (Amending act concerning payment of temporary bonus, supra).

Senate Bill #296, in the 1942 session of the legislature, ‘passed’ the senate and assembly on June 15, 1942, was ‘forwarded’ to the governor's office on June 25, 1942, and was ‘approved’ by the acting governor, about 11:30 a. m., on June 25, 1942, in the office of the governor at Trenton, N. J., in the presence of an executive assistant to Governor Edison, a fellow senator who sponsored the bill, the president of the association of retail dealers of alcoholic beverages, and a photographer. The bill was then filed with the secretary of state, N.J.S.A. 1:2-5, and is now L.1942, supra. Although comment is made upon the speed with which the bill was singled out and approved without investigation, nonetheless, counsel for petitioners emphasize that they charge ‘no one with improper conduct.’

Governor Edison re-entered the state about 8:30 a. m., on June 25, 1942; his train arrived at Newark approximately 9:15 a. m. He talked with Senator Scott, over the telephone, ‘within a half hour, three-quarters of an hour previous to the signing of the bill.’ At the time of this conversation Senator Scott was in the governor's office at Trenton. The evidence does not disclose the place from which Governor Edison spoke, nor the subjectmatter of that conversation. Nor is there any evidence that the governor told Senator Scott that he (Governor Edison) had returned to assume his executive powers and duties. Nor is there any evidence that the governor caused notice of such a return to be given to the personnel of his staff who concededly recognized Senator Scott as the acting governor at the time he approved Senate Bill #296. As already indicated, the personnel of Governor Edison's staff continued so to recognize Senator Scott until the early part of July, 1942, when the governor returned from another absence from the state, which absence began about 2:00 p. m., on June 28, 1942, and caused notice of his return to assume his executive powers to be given to Senator Scott who thereupon ceased to function as the acting governor. We mark the facts that arrangements, de novo, were not made by or for the governor with Senator Scott to function as acting governor from June 28, 1942, to the early part of July, 1942, and that Senator Scott did not again take the statutory oaths of office so to function.

The evidence of the governor is, however, that he ‘resumed the duties of his office between June 25, and June 28, 1942,’ and that he ‘considered (himself) available for all the duties the governor was supposed to perform during that time.’ We attach no particular significance to his admission that he could not recall from memory just where he was on each day from June 25 to June 28, 1942, or to specify what particular duties, if any, he may have performed on each of those days. For although the governor made abundantly clear that he could ‘easily’ have caused a check up to be made of the ‘very complete record’ which he kept ‘of his activities', yet, for reasons not disclosed, counsel for neither side took advantage of his offer. Be that as it may, the question still remains whether the governor had made a ‘return’ to the state within the meaning of that word as used in the constitution.

For petitioners it is contended that, in the circumstances exhibited, the presence of the governor in the state on June 25, 1942, before Senate Bill #296 was approved by Senator Scott, as acting governor, ipso facto, constituted a ‘return’ by the governor to the state within the meaning of the constitution (Art. V, par. 13), and thus in the legal sense rendered Senator Scott powerless to approve the bill, and requires us to decree L.1942, supra, null and void.

We think that petitioners' contentions are not sound. They are based, in our opinion, upon a too narrow and strict, if not an altogether erroneous, interpretation of the provisions of Art. V, par. 13, of the constitution.

There is no need to restate the established principles of law controlling the interpretation of a constitutional provision. They are fully stated in State v. Murzda, Err. & App., 116 N.J.L. 219, 222, 223, 183 A. 305. It shall suffice if we but observe that ours is the function to ascertain the ‘true sense and meaning’ of the words used in light of the provision in which they appear, and in light of the correlated provisions, if any, and in light of the instrument as a whole. More tersely stated, our objective is to ascertain the ‘thought’ which the constitution expresses. State v. Murzda, supra, 116 N.J.L. at pages 222, 223, 183 A. at page 307. In thus seeking to...