For the prosecutor, Sylvester C. Smith, Jr.
For D. Frederick Burnett, Edward J. Dorton.
For Herbert J. Franco and William H. Swick, Robert B. Meyner.
Before Justices Case, Donges and Heher.
The opinion of the court was delivered by
CASE, J. The writ brings up an order of the State Alcoholic Beverage Commissioner made March 11th, 1940, wherein (1) an ordinance of the town of Phillipsburg was "set aside, vacated and repealed pursuant to the power conferred by R.S. 33:1-41" and (2) two new plenary retail distribution licenses granted by the Board of Commissioners of the town of Phillipsburg were "canceled and declared null and void, and of no force and effect."
On May 22d, 1935, the Board of Commissioners of the town of Phillipsburg adopted a resolution, pursuant to the provisions of Pamph. L. 1934, ch. 85, limiting the number
of plenary retail distribution licenses to three. Three licenses were granted thereunder and are not questioned in this litigation. On August 16th, 1939, the board adopted an ordinance, pursuant to the provisions of R.S. 33:1-40, infra, fixing the number of plenary retail distribution licenses at five and repealing the previous limitation. Thereupon the board issued two additional licenses. It is that ordinance that the Commissioner of Alcoholic Beverages undertook to repeal and those licenses that he declared void. Prosecutor contends that the power to enlarge or to remove entirely the limitation on the number of licenses lay in the governing body of the town, that the commissioner was without authority to vacate or repeal the ordinance, that the statute, if and to the extent that it undertook to grant such authority, is unconstitutional and that, assuming authority, the evidence does not support the commissioner's decision.
The controlling statute was originally passed as chapter 436, Pamph. L. 1933, and is now embraced within the Revision as chapter 1 of title 33. The sections which have particular application are:
33:1-3 which established the office of State Commissioner of Alcoholic Beverages and provided that "It shall be the duty of the commissioner to supervise the manufacture, distribution and sale of alcoholic beverages in such a manner as to promote temperance and eliminate the racketeer and bootlegger;"
33:1-5 providing that each municipality of fifteen thousand population or over may establish a municipal ...