Larsen, In re

• Decision Date: 29 January 1952
• Docket Number: No. A--68,A--68
• Citation: 17 N.J.Super. 564,86 A.2d 430
• Parties: In re LARSEN.
• Court: New Jersey Superior Court — Appellate Division

Page 564

17 N.J.Super. 564

86 A.2d 430

In re LARSEN.

No. A--68.

Superior Court of New Jersey, Appellate Division.

Argued Jan. 7, 1952.

Decided Jan. 29, 1952.

Joseph Tomaselli, Camden, argued the cause for appellant (Malandra & Tomaselli, Camden, attorneys).

Samuel B. Helfand, Deputy Atty. Gen., argued the cause for respondent (Theodore D. Parsons, Atty. Gen., of New Jersey).

Before Judges McGEEHAN, JAYNE, and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

JAYNE, J.A.D.

On October 22, 1951, the Director of the Division of Alcoholic Beverage Control suspended for a period of 180 days the plenary retail consumption license theretofore issued to the appellant for the premises known as Ole's Ranch in Voorhees Township.

The alleged infraction which occasioned the disciplinary proceedings was that on May 31, 1951, and on divers days prior thereto, the licensee allowed, permitted, and suffered lewdness and immoral activity in and upon the licensed premises, Viz., the renting of rooms for the purpose of illicit sexual intercourse, in violation of Rule 5 of State Regulations No. 20 Vide, R.S. 33:1--26, 31, 39, 73, N.J.S.A.; R.S. 52:17B--51, N.J.S.A.

In the consideration of the present appeal we hold fast to the legal principles that we have heretofore deemed applicable to similar proceedings as announced in our recent decisions in Re Schneider, 12 N.J.Super. 449, 79 A.2d 865 (App.Div.1951); Greenbrier, Inc. v. Hock, 14 N.J.Super. 39, 81 A.2d 398 (App.Div.1951), certification denied 7 N.J. 581, 83 A.2d 380 (1951).

The subjects debated in the prosecution of the present appeal are: (1) whether the evidence adduced adequately sustains the determination of the Director that the licensee was guilty of the alleged transgression comprehended by Rule 5, State Regulations No. 20; (2) whether the investigatory methods and course of conduct pursued by the agents of the Division in quest of evidence are contrary to law or public policy; and (3) whether the suspension of the license for the stated period of 180 days was inordinately harsh, excessive, and arbitrary.

In view of the pertinent principles of law which by reference to the opinion in the Schneider case, supra, we iterate in the determination of the present appeal, our comment will relate to the three points thus projected.

It is immediately obvious that the testimony, together with the exhibits such as the registration cards, room keys, and identified money, adequately warranted in an evidential respect the factual conclusion that the servants of the licensee in the pursuit of their employment arranged for the rental of, and actually let in the licensed premises, 'rooms for purposes of illicit intercourse.'

We are earnestly importuned by counsel for the appellant to recognize the appeal as the practical equivalent of a trial before us De novo on the record submitted. The overture sprouts from a speculative perversion of Rule 3:81--13. Interpretative expositions of the import and meaning of this rule have been numerous. We are empowered not only to review the facts and make independent findings thereon, but the exercise of this power is permissive and a litigant may not as a matter of right require our exercise of it. Cf. Rules 1:2--20 and 4:2--6.

In the oral discourse at the argument of this appeal it was pointed out that the Director promulgates the rules, employs the agents to make the investigations, and ultimately adjudicates the merits of the complaints made by and, as here, supported by the testimony of his own representatives. The answer which immediately falls off the tip of the tongue is that in the evolution of governmental administrative and supervisory agencies, the Congress and the state legislatures have constitutionally and quite uniformly delegated to such agencies the power to adjudicate controversies arising within the area of the particular administrative field. The problem of merger of powers of prosecutor and judge in administrative agencies is one with which students of American administrative law have been much concerned. See Schwartz, American Administrative Law, p. 101, et seq. (1950). In Brinkley v. Hassig, 83 F.2d 351, 356 (C.C.A. 10, 1936), the court stated: 'The spectacle of an administrative tribunal acting as both prosecutor and judge has been the subject of much comment, and efforts to do away with such practice have been studied for years. The Board of Tax Appeals is an outstanding example of one such successful effort. But it has never been held that such procedure denies constitutional right. On the contrary, many agencies have functioned for years, with the approval of the courts, which combine these roles. The Federal Trade Commission investigates charges of business immorality, files a charge in its own name as plaintiff, and then decides whether the proof sustains the charges it has preferred. The Interstate Commerce Commission and state Public Service Commissions may prefer complaints to be tried before themselves.' Vide, Gellhorn, Administrative Law, p. 731, et seq.; Invective and Investigation in Administrative Law, 52 Harv.L.Rev. 1201. The wisdom and prudence of the legislative delegation of such a broad variety of functions to an administrative executive or board are not justiciable subjects.

Strictly, an administrative adjudication is not judicial; hence its characterization as 'quasi-judicial' is employed to denote its detachment from the judicial branch of the government. Administrative adjudications are nevertheless subject to judicial review. If, for example, the adjudication offends the State or Federal Constitution, is Ultra vires the statutory grant, is unsupported by adequate evidence, or is unreasonable, unjustly discriminatory, arbitrary, or capricious, the intervention of the courts may be invoked.

Of what relevancy to the consideration of the present appeal has the mere breadth of the delegated duties and powers of the Director? We suspect that we are invited even in the absence of any indicative evidence judicially to entertain the inference that the Director by reason solely of his official situation and environment did not critically scrutinize the testimony of his investigators.

Where such a proposed inference is neither based upon evidence nor upon the substructure of common knowledge and experience, it is essentially visionary, resting only upon a foundation purely imaginary and suppositious. To improvise and effectuate such an inference in proceedings of this nature would be an untenable abridgment and unjustifiable weakening of the disciplinary powers expressly conferred upon the Director by the Legislature. Moreover in its pragmatical consequence, the Division of Alcoholic Beverage Control would, as suggested by the Deputy Attorney-General, 'become little more than a medium for the transmission of evidence to the appellate court.'

Our courts have repeatedly declared that a license to vend intoxicating liquor is not a contract but a privilege. It is a business which may be restricted by 'such conditions as will limit to the utmost its evils.' It should be carefully supervised and conducted by reputable people in a reputable manner, and the governmental power extensively to regulate the conduct of those privileged to maintain premises for the sale of intoxicating liquors, especially by retail, is accorded broad judicial support. In re Schneider, supra, and cases cited therein.

We therefore decline to fabricate for use in the review of proceedings of this nature artificial inferences of the inevitable existence of the suggested disadvantageous influence in the factual adjudications of the administrative commissioner or director. The normal inference is to the contrary. 42 Am.Jur. 680, § 240.

It must also be realized that it is not within the domain of the courts to dictate the fashion, manner, method, and course of covert action which the Director shall pursue in the investigations he is lawfully authorized to make. Our remedial appellate function enables us to nullify those lines of detection and exposure which offend the law or public policy.

Violations of the character charged in the instant proceedings are undoubtedly difficult to detect and prove, except through the services of governmental investigators. It is said that furtive watchfulness is labor in vain and that timely and opportune invasions of the inn and tavern are too speculative, and that in consequence the investigators by their own solicitations tempt the licensee to transgress the rule of morality.

The words of Justice Minturn in his concurring opinion in State v. Dougherty, 88 N.J.L. 209, 218, 96 A. 56, 60, L.R.A.1916C, 991 (E. & A.1915), reverberate 'The dormant energy for transgression more or less smouldering in human breasts awaits only the opportunity presented by a more acute, energetic, and subtle mind, supported by the apparent respectability, character, and social standing of the tempter, to produce the leap that blasts hope and character, and spells moral destruction in an abyss of remorse and shame.'

But Horace philosophized that he who is moral and innocent within is well armed to repel the temptation. Anent the motives of the public investigators, see Camden v. Public Service Railway Co., 84 N.J.L. 305, 86 A. 447 (E. & A.1913).

We must be aware that we are not here concerned with a conviction of crime but rather with a purely disciplinary proceeding relating to the exercise by the licensee of a highly restricted and conditional temporary privilege to the treatment of which the ordinary analogies of the law are not always made applicable.

The foregoing subjects have evidently filtered into the argument of this appeal because in view of the contradictory state of the evidence on one of the elements of the charge it is sought thereby to induce us to substitute our entirely independent conception of the factual proof.

We perceive in the transcript of the evidence certain...