On applications for writ of certiorari.
For the petitioners, Harold Simandl.
For the defendant Erwin B. Hock, Commissioner of the State Department of Alcoholic Beverage Control, Walter D. Van Riper, Attorney-General (by Samuel B. Helfand, Deputy Attorney-General).
For the defendant Bayshore Tavern Association, William C. Egan (by A. Nathan Cowen).
For the defendant Mayor and Council of the Borough of Highlands, John M. Pillsbury.
Before Justices Donges, Colie and Eastwood.
The opinion of the court was delivered by
EASTWOOD, J. By similar orders made on September 25th, 1947, the Commissioner of the State Department of Alcoholic Beverage Control revoked the plenary retail consumption licenses issued to the petitioners by the defendant Borough Council on May 12th, 1947, for the 1946-1947 term and canceled renewals thereof for the 1947-1948 term, issued on June 17th, 1947. His action in so doing forms the basis of the present applications for review.
On May 12th, 1947, the Borough Council issued four plenary retail consumption licenses, two of which were issued to the petitioners, Edward R. Brush and Francis R. Ormond. Renewals of the licenses were issued effective on July 1st, 1947. As the basis of his revocatory action the Commissioner assigned the fact that:
"A consideration of the record clearly indicated, as this defendant found, that when issuing the licenses to these petitioners, 'the Borough Council did not give any consideration to the question of public need for additional plenary retail consumption licenses in the community' * * *, and that the Borough Council had 'abused its discretion.' * * *"
At the time the licenses in question were issued by the municipal authority it appears that the population of the Borough of Highlands, according to the last federal census, was 2,076, and that at that time, there had already been issued 28 such licenses, or one license to every 74 persons. If nothing further had been pleaded in extenuation of the action of the issuing authority we would conclude that the needs of the municipality, in so far as the availability and adequacy of drinking facilities were concerned, were more than amply provided for, and that the Commissioner had properly exercised his authority in making the revocations complained of. However, petitioners argue that the Borough of Highlands is a summer resort and in that season the population is so greatly increased that the issuance of their licenses was justified. It is said on their behalf that during the summer season the population could be conservatively estimated at 15,000 persons. Be that as it may, our review of the facts leads us to concur with the finding of the Commissioner that:
"Even if due allowance is made for the increase in the summer population, the issuance of any plenary retail consumption licenses in excess of twenty-eight would appear to be excessive and an abuse of the discretionary power conferred upon the local issuing authority by R.S. 33:1-19; R.S. 33:1-24." It was testified that the petitioners were veterans of the last war, and in the words of Borough Councilman Rast, at the public hearing concerning the issuance of the licenses, "* * * there were a hundred people around the room, all of them wanted to give a license to these veterans, feeling how they fought in this war. * * * the only objection was the Reverend and one of the tavern owners, and there was I'd say a hundred to two for the licenses, * * *. I believe that is what made them grant these licenses to these people." It seems to us, and we so hold, that the licenses were granted more on the basis of expediency rather than on the question of a public need for additional licenses in the community. It appears that there were three other licensed premises in the immediate neighborhood of the Brush premises, and that there ...