For the prosecutor, Harry Grossman.
For the defendant D. Frederick Burnett, state commissioner, &c., Nathan L. Jacobs.
For the defendant borough of Runnemede, S. Lewis Davis.
Before Brogan, Chief Justice, and Justices Bodine and Heher.
The opinion of the court was delivered by
HEHER, J. In 1934, at a referendum election held pursuant to section 44 of the act relating to alcoholic beverages (Pamph. L. 1933, pp. 1180, 1211, as amended by chapter 257, Pamph. L. 1935, p. 818; R.S. 1937, 33:1-47), the electors of the borough of Runnemede, in the county of Camden, resolved in the negative the question of whether the sale of alcoholic beverages should "be permitted on Sundays" in the municipality.
At a meeting held on September 30th, 1937, the municipal governing body adopted a resolution directing the resubmission of that identical question to the voters of the municipality at the ensuing general election. The referendum was had accordingly; and the question was answered in the affirmative.
The resolution of resubmission was based upon a petition filed with the governing body under section 44 of the Beverage Control act, supra, signed by the requisite number of qualified electors, requesting a referendum on the question of whether the sale of alcoholic beverages should "be permitted on Sundays in the municipality after 1:00 P.M.;" and on December 27th, 1937, the commissioner of alcoholic beverage control, in response to the borough clerk's request for his "opinion on the whole matter, that is in regard to the question submitted, and the legal hours of sales now in this Borough on Sunday," advised the clerk by letter that, in view of the failure of the governing body to submit the question demanded in the petition, the referendum was "void and of no effect," and therefore the "previous referendum," held in 1934, resulting in a
prohibition of Sunday sales of alcoholic beverages, "has never been superseded," and "no sales of alcoholic beverages may be lawfully made at any time on Sundays in Runnemede."
The return shows that on Sunday, January 2d, 1938, representatives of the defendant commissioner "explained" to prosecutor, the holder of a plenary retail consumption license issued by the local governing body, that "there was some controversy" relating to "the wording on the ballot concerning open Sunday and until the matter was definitely settled licensed premises should remain closed on Sunday as the licensee would be subject to revocation proceedings and might lose the license for the premises;" that the "licensee was responsible for the conduct of his premises and he would have to decide for himself if he wanted to be subject to revocation proceedings;" and that prosecutor expressed his "desire to do what" the defendant-commissioner "desired," and informed them that he "would immediately close," and acted accordingly.
Prosecutor maintains that the referendum is not subject to collateral attack -- citing State, ex rel. Love v. Freeholders of Hudson County, 35 N.J.L. 269; O'Donnel v. Dusman, 39 Id. 677; Conger v. Convery, 52 Id. 417; Winters v. Warmolts, 70 Id. 615; ...