Walinski v. Mayor & Council of City of Gloucester

• Decision Date: 24 February 1953
• Docket Number: No. C--627,C--627
• Parties: WALINSKI v. MAYOR & COUNCIL OF CITY OF GLOUCESTER et al.
• Court: New Jersey Superior Court

Page 122

25 N.J.Super. 122

95 A.2d 625

WALINSKI v. MAYOR & COUNCIL OF CITY OF GLOUCESTER et al.

No. C--627.

Superior Court of New Jersey

Chancery Division.

Feb. 24, 1953.

Frank M. Lario, Camden, for plaintiff.

William E. Hughes, Camden, for defendants Mayor & Council of City of Gloucester City, and Thomas Winkelspecht, Chief of Police of City of Gloucester City.

Theodore D. Parsons, Atty. Gen. (Samuel B. Helfand, Deputy Atty. Gen., of counsel), for defendant Dominic A. Cavicchia, Director of Division of Alcoholic Beverage Control of the State.

HANEMAN, J.S.C.

The plaintiff herein originally demanded relief in two counts: (1) a declaratory judgment concerning a certain referendum held in the City of Gloucester City, and (2) an injunction against allegedly extra-legal acts of the defendants in a purported enforcement of the law resulting from said referendum as defendants interpreted it.

At the pretrial conference the issue was narrowed to the relief demanded in the first count.

Under the pleadings here present, and in the present posture of this case, the defendants have conceded that this is a proper matter for determination under R.S. 33:1--47, N.J.S.A.

The problem arises under R.S. 33:1--47, N.J.S.A., which reads as follows:

'Whenever a petition, signed by at least fifteen per centum (15%) of the qualified electors of any municipality as evidenced by the total number of votes cast for members of the General Assembly, at the then next preceding general election held for the election of all of the members of the General Assembly, in such municipality, shall be presented to the governing board or body thereof, requesting a referendum on the question hereinafter stated, such governing board or body shall adopt forthwith a resolution directing the clerk of the county in which said municipality is situated to print, pursuant to Title 19, Elections, hereinafter referred to as the 'general election law,' upon the official ballot to be used in such municipality at the next ensuing general election, a question to read: 'Shall the sale of alcoholic beverages be permitted on Sundays in this municipality?' Thereupon the clerk or secretary of the governing board or body of such municipality shall forthwith deliver to such county clerk a certified copy of such resolution. If such copy shall be delivered to the county clerk not less than thirty days before such general election, he shall cause such question to be printed in an appropriate place on the ballot to be used in such municipality at the next ensuing general election, pursuant to the general election law and thereupon all proceedings with respect to the referendum on such question shall be subject to and governed by the general election law as in other cases of the submission of public questions to the electorate.

'If a majority of the legal voters voting upon the question shall vote 'Yes,' the clerk of the governing board or body of such municipality shall forthwith in writing notify the commissioner and municipal board, if any, having authority to issue such licenses, of the action taken by the legal voters of such municipality and the sale of alcoholic beverages on Sundays pursuant to the provisions of this chapter shall be permitted in such municipality.

'If a majority of the legal voters voting upon the question shall vote 'No,' then the clerk of the governing board or body of such municipality shall forthwith in writing notify the commissioner and municipal board, if any, as the case may be, having authority to issue such licenses of the action taken by the legal voters of such municipality and thereupon It shall be unlawful for any person to sell alcoholic beverages in such municipality on Sundays and such sale shall constitute a violation of this chapter.' (Italics supplied.)

The facts in connection herewith are as follows:

Pursuant to the above cited law, a proper petition having been presented to the governing body of the City of Gloucester, there was included on the ballot for the general election held on November 4, 1952, this question:

'Shall the sale of alcoholic beverages be permitted on Sundays in this municipality?'

As a result of a recount it was determined that there were 3,328 votes cast in the negative and 2,373 votes cast in the affirmative on said question.

The plaintiff, a holder of a plenary retail consumption license under R.S. 33:1 et seq., N.J.S.A., seeks to have determined the effect of the statute and referendum, to the end that it may be concluded whether the sale of alcoholic beverages is prevented in the City of Gloucester from midnight Saturday to midnight Sunday (as contended by defendants) or from 2 a.m. Sunday to midnight Sunday, as contended by plaintiff.

The plaintiff's statement of his contention is set forth in paragraph 9 of the complaint, which reads as follows:

'9. Plaintiff avers and contends that within the meaning and intent of the said provisions of the said ordinance and by reason of the result of the said public question as aforesaid, the sale of alcoholic beverages within the said City of Gloucester is prohibited after 2 A.M. on a Sunday to 7 A.M. Monday morning. The said 2 A.M. being the closing hour of Saturday, the weekday preceding the said Sunday and the 2 A.M. being the closing hour as provided in said ordinance and that the said referendum did not affect that closing hour.'

Plaintiff as well contends that 'in accord with custom the word Sunday * * * should be considered or interpreted to mean the business day of Sunday, beginning with the opening of business on that day.'

In support of this argument, plaintiff submits the following in an attempt to show the interpretation of Sunday by the governing body of the City of Gloucester:

(1) A resolution of the City of Gloucester adopted December 8, 1933, which reads in part as follows:

'(12) Hours of Sale: Any place for the sale of, consumption or distribution of the alcoholic beverages defined herein shall not open before the hour of 6 A.M. and shall close at 2 A.M. and shall remain closed without engaging in the sale of alcoholic beverages between the hours of 2 A.M. and 6 A.M. of any weekday. Said places shall not be opened at any time on Sunday or engage in the sale or distribution of said alcoholic beverages.'

(2) A resolution of the City of Gloucester dated January 3, 1935, which reads as follows:

'Be It Resolved by Common Council of the City of Gloucester City, County of Camden, from and after the passage of this resolution, that the sale of alcoholic beverages by licensed beverage dealers in the City of Gloucester, shall be legal until the hour of 2 A.M., local time, on Sunday, the first day of the week, commencing Sunday, January 6, 1935.

'All resolutions and parts of resolutions inconsistent herewith are hereby repealed.'

(3) A resolution of the City of Gloucester dated March 7, 1935, which reads as follows:

'Be It Resolved by Common Council of the City of Gloucester City, County of Camden, from and after the passage of this resolution, that the sale of alcoholic beverages by licensed beverage dealers in the City of Gloucester City shall be legal until the hour of 2 A.M., local time, on Sunday, the first day of the week; and from the hour of 3 P.M., local time, on Sunday, the first day of the week until the hour of 2 A.M. local time, Monday.

'All resolutions and parts of resolutions inconsistent herewith are hereby repealed.'

(4) An ordinance of the City of Gloucester adopted February 4, 1938, which reads in part as follows:

'Section 3. No alcoholic beverage shall be sold, served or delivered nor shall any licensee suffer or permit the sale, service or delivery of any alcoholic beverage upon any licensed premises directly or indirectly, between the hours of 2 A.M. and 7 A.M. any weekday or between 2 A.M. and 3 P.M. on any Sunday; provided, however, that beginning with the last Sunday in April of each year and ending with the last Sunday in September of each year the time as aforesaid shall be computed in accordance with Daylight Saving Time.'

'Section 10. Whenever New Year's Day falls on any day except Sunday, in addition to the opening hours above provided for, this said opening hour shall also be from 2 A.M. to 7 A.M. on New Year's Day.'

It is inconceivable that the actions of the governing body of the municipality could be binding upon the question of the intent of the statute. But admitting this to be true, merely for the sake of argument, an examination of the several resolutions and ordinances clearly demonstrates that the said governing body itself clearly recognized that there was no distinction between a 'business' day and a calendar day. They demonstrated that express, special and separate provisions must be made for Sunday, I.e., from midnight Saturday to midnight Sunday, from that made for a weekday. This is contrary to plaintiff's present position. Plaintiff's argument, insofar as local action is concerned, in the light of the above official action, is in any event, without merit.

In addition, plaintiff argues that the interpretation by the Director of the Division of Alcoholic Beverage Control, or his predecessors, has accorded to the word Sunday, as used in the pertinent statute, the meaning for which he argues. He has cited various conclusions of the Alcoholic Beverage Commissioner to sustain his position. Such constructions are entitled to be given great weight, since they embody long standing statutory construction by the Director. Passarella v. Board of Commissioners, 1 N.J.Super. 313, 64 A.2d 361 (App.Div.1949); Cino v. Driscoll, 130 N.J.L. 535, 34 A.2d 6 (Sup.Ct.1943).

The case of William Vassos and Charles Murphy, trading as Golden Moon v. Township Committee of the Township of Springfield (Burlington County), Bulletin 793, Item 6, cited by plaintiff, does not sustain his position. As a matter of fact, the Commissioner there decided that a referendum which prevented Sunday alcoholic beverage...