On appeal from the New Jersey Supreme Court, whose opinion is reported in 135 N.J.L. 259.
For the prosecutor-appellant, Irving I. Jacobs.
For the respondent, Walter D. Van Riper, Attorney-General (Samuel B. Helfand, of counsel).
The opinion of the court was delivered by
OLIPHANT, CHANCELLOR. This case presents an appeal from a judgment of the Supreme Court dismissing a writ of certiorari allowed to review what is termed a "ruling and determination" of the Commissioner of Alcoholic Beverage Control which adjudged the prosecutor-appellant ineligible to hold employment in the alcoholic beverage trade by reason of his entering a plea of nolle contendere to an indictment for an offense involving moral turpitude. R.S. 33:1-25, 26.
Prosecutor-appellant was the licensed operator of a cafe located in Atlantic City where entertainment in the form of a floor show was presented. In August, 1943, his license was suspended as the result of an investigation by alcoholic beverage control agents which disclosed a lewd and obscene performance. He was indicted for the crime of aiding and abetting a lewd and lascivious entertainment based upon the same facts which resulted in the suspension of his license. On December 10th, 1943, he pleaded nolle contendere to the indictment and was sentenced thereon.
Thereafter, on June 8th, 1944, appellant transferred his liquor license to his mother who still holds it. Because of the commission's suspicion that such transfer was one in name only and made for the purpose of allowing the appellant to, in fact, continue to operate the cafe, he and his mother were requested by letter to appear before the commission, he to be examined under oath, and he was advised that a hearing would be held to determine his eligibility to be employed in any capacity in the alcoholic beverage business.
Appellant voluntarily appeared, the hearing was held and he was examined under oath. He admitted his plea of nolle contendere to the indictment hereinbefore referred to, which was put in evidence.
The Commissioner ruled that appellant was ineligible to be employed by any liquor licensee in New Jersey because of his
conviction of a crime involving moral turpitude and advised him of such ruling by letter enclosing a "copy of his decision."
The statute R.S. 33:1-25 provides that no license shall be issued to any person who has been convicted of a crime involving moral turpitude, which admittedly the crime charged against this appellant did, while R.S. 33:1-26 provides that no person who cannot qualify as a licensee "shall be knowingly employed by or connected in any business capacity whatsoever with a licensee."
It should be noted that neither of the cited sections empower the Commissioner to make any rule or decision concerning the eligibility of an individual for employment on licensed premises. Nor is any such specific authorization given ...