For the prosecutor, Kasen, Schnitzer & Kasen (Daniel G. Kasen, of counsel).
For the respondent, Walter D. Van Riper, Attorney-General of New Jersey (Samuel B. Helfand, Deputy Attorney-General, of counsel).
Before Case, Chief Justice, and Justices Heher and Colie.
The opinion of the court was delivered by
COLIE, J. Prosecutor holds a seasonal retail consumption license for a part of premises known as the West End Casino in Long Branch, New Jersey. On July 18th, 1946, an agent of the Alcoholic Beverage Commission, hereinafter referred to as the Commission, while making a routine inspection of the licensed premises, tested all the open bottles in both of the bars on the licensed premises. The fifty-four bottles from the main bar were found satisfactory. Eight of the twenty-three bottles from a small bar known as the Yacht Bar were "off-proof." Analysis by the Commission's chemist showed that seven of the seized bottles were substantially diluted with water or other non-alcoholic beverage. Prosecutor does not dispute that its employee, the bartender of the Yacht Bar, had diluted and misappropriated the contents of the seized bottles to his own use. The Commission charged that prosecutor "possessed illicit alcoholic beverages at your licensed premises, * * * all of which bottles contained alcoholic beverages not genuine as labeled; such possession being in violation of R.S. 33:1-50." After a hearing held on the authority of R.S. 33:1-31 the prosecutor was found guilty as charged and its license suspended for thirty days.
Prosecutor was allowed a writ of certiorari to review the ruling of the Commission and sets forth four reasons for reversal as follows:
"1. The Supreme Court held in State v. Pinto, 129 N.J.L. 255 (1942), that R.S. 33:1-50, which prosecutor was charged with violating, does not apply where the principal did not aid, encourage or connive at the perpetration of the violation
committed by its employee. The department wholly failed to prove that prosecutor aided, encouraged or connived in the action of the bartender and prosecutor affirmatively established the contrary.
"2. The offense charged against the prosecutor was possession of illicit alcoholic beverages. The testimony conclusively shows that the alcoholic beverages which the department considers illicit were not in the possession of the prosecutor.
"3. The offense charged against the prosecutor was possession of illicit alcoholic beverages. The department wholly failed to prove that the beverages which were the subject-matter of the charge were illicit.
"4. The penalty ordered by defendant is grossly excessive and disproportionate to the offense charged against the licensee, under the circumstances of the instant case, conflicts with defendant's established practice ...