For the prosecutor, Paul C. Kemeny.
For the respondents, Joseph T. Karcher.
Before Justice Case, sitting as a single justice pursuant to the statute.
The opinion of the court was delivered by
CASE, J. Prosecutor, after due newspaper advertisement, applied for and was granted a plenary retail consumption
license by the mayor and council of the Borough of Sayreville. Later a neighboring property owner lodged a complaint and asked for the revocation of the license upon allegations that prosecutor had obtained the license by fraud and suppression of material facts. The statute provides (R.S. 33:1-25): "Fraud, misrepresentation, false statements, mis-leading statements, evasions or suppression of material facts in the securing of a license are grounds for revocation." There was a trial at which both the complaining property owner and prosecutor were represented by counsel. By a vote of three councilmen for and one councilman against, the decision was that "the licensee has been guilty of fraud, misrepresentation, false statements, misleading statements, evasion and suppression of material facts in securing the license" and that the license should be revoked.
The governing body of the borough consisted of the mayor and six councilmen. The mayor and four councilmen sat in trial. Two councilmen were not present. R.S. 40:88-1 provides:
"Three councilmen and the mayor, and, in the absence of the mayor, four councilmen, shall constitute a quorum for the transaction of business; but a smaller number may meet and adjourn from time to time. The mayor shall preside over all meetings except as herein in this article otherwise provided, but shall not vote except to give the deciding vote in case of a tie."
The complaining property owner called and caused to be sworn and to testify as witnesses in his behalf two of the four sitting councilmen, by name Popowski and Buchanan. After their testimony had been taken prosecutor objected to their sitting further in the case. The mayor and council were advised by the borough attorney that the councilmen against whom objection had been so made should be permitted to sit. That was the ruling. Prosecutor noted formal exception. When the issue was decided two of the three votes for revocation came from those men. If the two members were disqualified to sit, there was not a legal quorum for the conduct of the business then in hand and the body lacked jurisdiction
to proceed with the trial or to decide the issue. In such an event the capacity of the body to hear and decide was as thoroughly destroyed as though the tribunal had consisted of a single person who became disqualified. It is in proof that one of the two did not know that he was to be called, and the fair inference is that the complainant had made known to no one, either the called ...