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In re Alleged Nullity of An Act Concerning Alcoholic Beverages

Decided: April 30, 1943.


On petition for annulment of chapter 264 of the Laws of 1942, supplementing chapter one of Title 33 of the Revised Statutes.

For the petitioners, Osborne, Cornish & Scheck (Ervin S. Fulop, of counsel).

For the respondent Neil Deighan, George H. Stanger.

For the respondents William G. Wellhofer et al., William C. Egan.

Before Brogan, Chief Justice, and Justices Parker, Case, Bodine, Donges, Heher, Perskie, Porter and Colie.


The opinion of the court was delivered by

PERSKIE, J. Pursuant to N.J.S.A. 1:7-4, petitioners, on November 8th, 1942, attacked the enactment of Pamph. L. 1942, ch. 264, p. 708, approved June 25th, 1942 ("An act concerning alcoholic beverages, and supplementing Chapter one of Title 33, of the Revised Statutes"). That attack is based upon the broad statutory grounds that petitioners had "reason to believe" that L. 1942, supra, was "not approved by the Governor" or "otherwise made effective as law in the manner required by the constitution * * *." N.J.S.A. 1:7-1.

The statute thus invoked concededly permits an attack only upon the "procedure," the "machinery" of making laws and not upon the constitutional validity of their "provisions." For the statute relates "exclusively" to the matter of "passage

and enactment and not to the effect of the statute when so enacted." In re Borg, 123 N.J.L. 104, 105, 106; 8 A.2d 221. The case at bar was so argued and briefed and is considered and determined accordingly.

And since the legislature has permitted such attack to be made upon its enactments, "which [enactments] but for such permission would be unexpungable" (Cf. Pangborn v. Young, 32 N.J.L. 29), petitioners must establish the truth of what they assert by "clear and convincing evidence." In re Low, 88 Id. 28, 30; 95 A. 616. Cf. In re Petition of Attorney-General, 98 N.J.L. 586; 121 A. 736.

The question we are therefore called upon to decide is whether petitioners have properly established as charged that the president of the Senate in approving Senate Bill No. 296, now L. 1942, supra, acted in excess of the power conferred by article V, paragraph 13 of the State Constitution which, so far as is here pertinent, provides:

"In case * * * of the governor(s) * * * absence from the state * * * the powers, duties, of the office shall devolve upon the president of the senate * * * until the governor, absent * * * shall return * * *."

The evidence which gives rise to the stated question is as follows: Hon. Charles Edison, Governor of the state, in planning to attend, as he did, a conference of governors at Ashville, North Carolina, "made arrangements" with Mr. I. Grant Scott, president of the Senate, "to act in his [Governor's] absence from the state." In pursuance of those arrangements, and before assuming the duties of acting governor, Senator Scott, on June 20th, 1942, took the statutory oaths of office. N.J.S.A. 52:15-4 and N.J.S.A. 41:1-1, et seq. Thereafter, and for a "little over two weeks" "until some time in July" (the exact date is not made to appear) Senator Scott, without challenge or protest on the part of anyone, openly exercised the powers, duties and functions of the office of the governor. He was recognized by members of Governor Edison's staff and by the people as the acting Governor of the state. During the stated period, he approved some seventeen bills which, according to the records of the Secretary of State, are now the following numbered chapters

of the public law (1942) of the state: approved on June 25th, 1942, chapter 264 (act concerning alcoholic beverages, here in question), approved June 29th, 1942, chapter 265 (act appropriating $10,000 to the Commission on Historic Sites), chapter 266 (act appropriating $10,000 to the Commission on Historic Sites), and chapter 267 (act providing for no lapsing of unexpended balance of appropriations made), approved June 30th, 1942, chapter 268 (act amending section 39:3-84 of the Revised Statutes), chapter 269 (act amending section 18:13-9, service determining seniority right of teachers), chapter 270 (act making appropriation to the Commission on Interstate Co-operation), chapter 271 (act amending act authorizing cities to sell certain lands), chapter 272 (act concerning State Highway Department), chapter 273 (act transferring $100,000 to State Purchase Fund), chapter 274 (Supplement to Title 12, chapter 5 of Revised Statutes), chapter 275 (act providing payment of temporary bonus to certain state employees), chapter 276 (act appropriating $10,000 to the legislature), chapter 277 (act appropriating $15,000 to Department of Alcoholic Control), chapter 278 (act authorizing State House Commission to sell land in Kearny to a Post of the Veterans of Foreign Wars), chapter 279 (act concerning sale of Revised Statutes, and chapter 280 (amending act concerning payment of temporary bonus, supra).

Senate Bill No. 296, in the 1942 session of the legislature, "passed" the Senate and Assembly on June 15th, 1942, was "forwarded" to the Governor's office on June 25th, 1942, and was "approved" by the acting Governor, about 11:30 A.M., on June 25th, 1942, in the office of the Governor at Trenton, New Jersey, in the presence of an executive assistant to Governor Edison, a fellow senator who sponsored the bill, the president of the association of retail dealers of alcoholic beverages, and a photographer. The bill was then filed with the Secretary of State, N.J.S.A. 1:2-5, and is now L. 1942, supra. Although comment is made upon the speed with ...

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