On application for writ of certiorari.
For the prosecutor, Samuel S. Ferster and Donal C. Fox.
For the respondent, Walter D. Van Riper, Attorney-General and Samuel B. Helfand, Deputy Attorney-General.
Before Case, Chief Justice, and Justice Burling.
The opinion of the court was delivered by
BURLING, J. The prosecutor was, on March 13th, 1946, the holder of plenary retail consumption license C-7 issued by the Township Committee of the Township of Livingston for premises at 343 West Mount Pleasant Avenue, Livingston, County of Essex and State of New Jersey.
Notice was given on April 10th, 1946, to the prosecutor of the presentment of the charge against him in the following language: "On March 13th, 1946, you possessed illicit alcoholic beverages at your licensed premises viz. three 4/5 quart bottles labeled 'Canadian Club Blended Canadian Whisky' all of which bottles contained alcoholic beverages not genuine as labeled; such possession being in violation of R.S. 33:1-50" and calling upon him to show cause why his license should not be suspended or revoked. The prosecutor pleaded "not guilty" to the charge and after the reception of the testimony he was adjudged guilty and his license was suspended for a period of twenty-five days by the Deputy Commissioner, Erwin B. Hock, now the Commissioner of the Department of Alcoholic Beverage Control.
Application was made to the Honorable Charles W. Parker, Justice of the Supreme Court, for a writ of certiorari and the writ was denied by him. Application was then made to the Supreme Court en banc.
With his present application, the prosecutor presented an affidavit dated the 7th day of April, 1947. There is printed in the state of case an affidavit dated the 20th day of March, 1947, of Samuel B. Helfand. It is assumed that this affidavit was used on the application to Mr. Justice Parker on March 22d, 1947, but is also again presented. In addition the testimony taken before the hearer of the Department of Alcoholic Beverage Control on July 26th, 1946, which was the basis for the order for which a review is desired is printed in the state of case. In the briefs of both parties references are made to the affidavits referred to and the testimony. In disposing of this matter, consideration has been given to such affidavits and testimony upon the assumption that there was an agreement by them to that effect.
On March 13th, 1946, an agent of the Department of Alcoholic Beverage Control made an inspection of the prosecutor's licensed premises, and in the course of such inspection, tested the contents of the prosecutor's open liquor stock. On the agent's preliminary test, three of these bottles, each labeled "Canadian Club Blended Canadian Whisky," indicated a variance in color from a genuine sample of that product. These three bottles, together with a sealed bottle of the same brand of liquor obtained from the prosecutor for comparative purposes, were submitted to the department's chemist for formal analysis. The chemist testified that the chemical formula for a genuine sample of Canadian Club Blended Canadian Whisky is as follows:
Acids -- Not less than 19 grams per one hundred liters.
Solids -- Not more than 125 grams per one ...