On appeal from the Supreme Court, whose per curiam is reported in 134 N.J.L. 481.
For the respondent-appellant, Hudson Bergen County Retail Liquor Stores Association, Fraser, Stoffer & Jacobs (Nathan L. Jacobs and Samuel Moskowitz).
For Alfred E. Driscoll, State Commissioner of Alcoholic Beverage Control, Walter D. Van Riper, Attorney-General, and Samuel B. Helfand, Deputy Attorney-General.
For Board of Commissioners of the City of Hoboken, John J. Fallon.
For John Novak, Sophie Brotman, Emil Pfeifer, John Lensi, Daniel G. Marotta, Sydney Gordon and Louis Gordon, trading as Gordon Brothers, Abraham J. Slurzberg and Joseph B. McFeely.
For Angelo Anthony Lupo, Anthony P. LaPorta.
For Charles Marinelli and Rose Pizzino, John F. Lynch, Jr., N. Louis Paladeau, Jr., and Benedict A. Beronio.
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. This opinion is in the case of John Novak.
The Hudson Bergen County Retail Liquor Stores Association filed its petition of appeal with the State Commissioner of Alcoholic Beverage Control naming as respondents John Novak and the Board of Commissioners of the City of Hoboken. The petition alleged that on October 2d, 1945, the board had granted Novak's application for a plenary retail distribution license and had erred therein because the act was an abuse of discretion in that there were already "ample liquor outlets" to serve the needs of the neighborhood and of the city and that the granting of the licenses was socially undesirable. The board and Novak answered separately, admitting the granting of the license, otherwise denying the allegations
of the petition and setting up that the Board of Commissioners was vested with authority to issue the license and that the appellant filed the petition for the selfish purpose of unlawfully establishing a monopoly in itself and its members; and Novak added the allegation that the municipality had the authority to determine the number of licenses.
At the hearing de novo before the Commissioner the appellant put in proof tending to show that the City of Hoboken was "a mile square city," that in 1940 its population, according to census, was 50,000; that the number of licenses was 238 on August 1st, 1945, and that the granting of twelve additional licenses since that date brought the number to 250; that 250 licenses meant one license to every 200 of the population, including men, women and children, or, allowing a recognized deduction of forty per cent. of the total population for persons under twenty-one years of age and therefore not lawful patrons, a licensed place for every 120 adults; that although there had been an influx of workers due to war conditions these persons were mainly daily transients and not residents; that within approximately a two block radius of Novak's establishment there were twelve other licensed places; that all of the city licensees were members of the appellant organization and that the objection to the new licenses was that the city had reached the saturation point; that every municipality in Hudson County ...