Matthews v. City of Asbury Park

• Court: New Jersey Supreme Court
• Writing for the Court: PERSKIE, J.
• Citation: Matthews v. City of Asbury Park, 113 N.J.L. 205, 174 A. 213 (N.J. 1934)
• Decision Date: 30 July 1934
• Parties: AMELIA V. MATTHEWS AND MARY A. HALL, PROSECUTORS, v. CITY OF ASBURY PARK, ROLAND H. LOOG, CLERK OF SAID CITY, AND JOHN JACOBS, RESPONDENTS; AMELIA V. MATTHEWS AND MARY A. HALL, PROSECUTORS, v. CITY OF ASBURY PARK, ROLAND H. LOOG, CLERK OF SAID CITY, AND SAMUEL BRODY, RESPONDENTS

174 A. 213

MATTHEWS et al.

v. CITY OF ASBURY PARK et al. (two cases).

Supreme Court of New Jersey.

July 31, 1934.

Application for writ of certiorari by Amelia V. Matthews and another against the City of Asbury Park, John Jacobs and others, and against the City of Asbury Park, Samuel Brody, and others, to review the issuance of liquor licenses to the named individual respondents.

Application denied.

Argued before PERSKIE, J., at Chambers, pursuant to statute.

Hobart & Minard, of Newark, for prosecutors.

John Milton, of Jersey City, for respondents.

PERSKIE, Justice.

P. L. 1933, c. 436, p. 1180, § 22, as amended by P. L. 1934, c. 85, p. 218 (N. J. St. Annual 1934, § 100—333), provides: "Every applicant for a license shall cause a notice of intention to make such application to be published in a form prescribed by rules and regulations, once a week for two weeks successively in a newspaper, printed in the English language, published and circulated in the municipality in which the licensed premises are located. * * *"

In pursuance to the aforesaid advertisement, the city of Asbury Park, operating under the Municipal Manager Act (Comp. St. Supp. 1924, 1930, § ***136—101 et seq., N. J. St. Annual 1931, § ***136—1401 et seq., N. J. St. Annual 1932, § ***136—1412), did, on July 3, 1934, issue a liquor license to Samuel Brody, at N. W. corner Third and Ocean avenues, and to John Jacobs, at S. W. corner Second and Ocean avenues, both in Asbury Park, by a vote of two to one (notation of minutes of said meeting: "Mayor Dennis and Councilman Groce not eligible to vote"). Neither prosecutrices nor any one else appears to have made any objection thereto either to the issuing body, i. e., the city of Asbury Park, or the Commissioner of the State Department of Alcoholic Beverage Control.

There is no claim that the licenses were obtained by fraud or deceit. Freeman v. Hague, 106 N. J. Law, 137, 147 A. 553.

But it does appear, and it is not controverted, in the case of John Jacobs, that he has been in business at the given address for over ten years. He employs 51 people and 10 extras over the week-ends, and has a weekly pay roll of over §700. He has expended more than $10,000 in furnishing his beer garden, and has recently signed a lease for four years at a rental for the period of $10,750.

That the respondent Brody conducts a restaurant and bar at the given address, and has been in business, at that location, for over 16 years. He employs 20 people and has a pay roll of $427.50 weekly. He has expended more than $18,000 in furnishing his beer garden, and occupies the premises under a four-year lease calling for a rental of $4,000, plus 10 per cent. of the gross receipts of the business over $40,000.

In the Jacobs case the premises of the prosecutrix Amelia V. Matthews are located 3 1/2 blocks from his premises; the premises of the prosecutrix Mary A. Hall are located 5 1/2 blocks from his premises. In the Brody case it appears that the Matthews premises are located 4 1/2 blocks from his premises and that the Hall premises are located 6 1/2 blocks therefrom. In the territory between the premises of the prosecutrices and that of the respondents there are five other places selling alcoholic beverages at no greater distance from the premises of the prosecutrices.

It was not until July 16, 1934, that notice was given of an application before me for a writ of certiorari to review the issuing of the aforesaid licenses, returnable July 18, 1934.

The argument is made that the granting of the licenses, as aforesaid, were illegal solely by reason of the two to one vote. I am not concerned on this application with the disqualification of Dennis and Groce.

Prosecutrices, in their brief, concede that section 711 of the Municipal Manager Act (Comp. St. Supp. 1924, § ***130—711), and section 3 of the Commission Government Act, as amended by P. L. 1910, c. 193, p. 400 (Comp. St. Supp. 1924, § **136—4), are substantially the same with regard to the number of councilmen necessary to constitute a quorum, and the requirement that an affirmative vote of a majority of all the members shall be necessary to take any action or pass any measure. In the case of Housman v. Earle, 98 N. J. Law, 379, 120 A. 738, the common-law rule, by reason of an absence of statutory provisions, was followed, namely, that a majority of the quorum was all that was necessary. It is argued that the effect of this holding is not adverse to the facts of the instant case, for it is pointed out that in the Housman v. Earle Case the subject-matter involved was an election and not a resolution and in the managerial act it is definitely provided that "the affirmative vote of * * * members shall be necessary to take any action or pass any measure."

To this argument answer is made that section 711 (P. L. 1923, page 227) of the Municipal Manager Act (Comp. St. Supp. 1924, § ***136—711) was, by implication, repealed by the Home Rule Act as amended P. L. 1926, p. 378 (see Comp. St. Supp. 1930, § *136—1001); that section 711 has no application to the issuance of a license by the issuing authority under the...