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Rutherford Lodge No. 547 Benevolent and Protective Order of Elks v. Hock

Decided: February 10, 1949.

RUTHERFORD LODGE NO. 547 BENEVOLENT AND PROTECTIVE ORDER OF ELKS, RUTHERFORD POST NO. 109 AMERICAN LEGION AND REYNOLDS-EVERETT-SCHNEIDER POST NO. 227 VETERANS OF FOREIGN WARS, APPELLANTS,
v.
ERWIN B. HOCK, STATE COMMISSIONER OF ALCOHOLIC BEVERAGE CONTROL, RESPONDENT



Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.

Eastwood

Appellants attack an asserted determination by the respondent (hereinafter referred to as "Commissioner"), and contend that it unlawfully terminated their club liquor licenses as of December 1, 1948, consequent upon the result of a referendum election participated in by the voters of the borough of Rutherford. The Commissioner contends that he merely gave an advisory opinion or interpretation of the legal effect of the referendum election with respect to the three club licenses theretofore issued to and held by the appellants.

The relevant facts are: On November 2, 1948, a referendum election was held in the Borough of Rutherford on the question:

"Shall the retail sale of all kinds of alcoholic beverages, for consumption on the licensed premises by the glass or other open receptacle pursuant to chapter 1 of the title Intoxicating Liquors of the Revised Statutes (Section 33:1-1, et seq.), be permitted in this municipality?"

The vote was negative. The Commissioner, on November 18, 1948, in response to a letter from the Borough Clerk of Rutherford Borough, informing him of the result of said referendum, sent a communication to the clerk, stating that by virtue of paragraph 3 of R.S. 33:1-45 and "Pursuant to the provision of the statutory section and the negative vote thereunder at the referendum, it will be unlawful for the Mayor and Council to issue any license which shall permit the retail sale of alcoholic beverages for consumption on the licensed premises by the glass or other open receptacle; and, from and after midnight of Wednesday, December 1, 1948, the three club licenses now outstanding in the Borough shall be completely void and inoperative. (See the enclosed copies of Re Rutherford, Bulletin 63, Item 1, and Re Merchantville, Bulletin 58, Item 3.)" Under date of November 18, 1948, the Commissioner forwarded a copy of this letter to each of the appellants, stating that it was for their "prompt and careful attention. * * *" Appellants state that thereafter they made an oral request of the Commissioner for a hearing, although the record does not reveal this fact. In the argument before this court, it was conceded that the Commissioner had held lengthy conferences with representatives of the appellants, that in response to the request of counsel for appellants for a hearing, the Commissioner stated that the statute did not provide the means for such a hearing on the question at issue, that there was no factual issue presented and the question of the proper construction of the pertinent section of the statute had been "completely argued before him".

Appellants contend that the letters written by the Commissioner constituted reviewable action or decision by him under Rule 3:81-8. The Commissioner contends that he did nothing more than to give utterance to his interpretation or construction of the provisions of the statute in question, that his opinion was merely of an advisory nature, there was no formal hearing or

proceeding before him, there is no authority for a hearing on the question at issue, and that he made no reviewable determination. As stated, appellants contend that the Commissioner's action had the effect of terminating their licenses; that their licenses would not have expired otherwise until June 30, 1949; that rights valuable to appellants are involved, and to disregard the asserted determination of the Commissioner would expose appellants to prosecution under the criminal laws of this State.

Rule 3:81-8, as amended, provides that a "Review of the final decision or action of any State Administrative Agency shall be by appeal to the Appellate Division. * * *" Formerly, such a review, if allowed, was by certiorari. The basis for the issuance of a writ of certiorari to review a decision of an administrative agency was clearly defined by Mr. Justice Heher in Morgan v. Burnett , 121 N.J.L. 352, 2 A. 2 d 339 (Sup. Ct. 1938), wherein he stated:

"It is the settled rule in this court that 'certiorari will not lie to revise or correct erroneous opinions, however hurtful they may be to individuals concerning whom they are expressed. An order, judgment, or determination affecting the rights of prosecutors is necessary as a foundation for the use of the writ.' * * * 'The writ of certiorari cannot be used to draw judicial opinions in advance or to affect adjudications of subordinate tribunals.' Newark v. Fordyce , 88 N.J.L. 440, 97 A. 67, 68; Livingston v. Rector, &c., of Trinity Church , 45 N.J.L. 230; Drake v. Plumo , 44 N.J.L. 362; Watson v. Medical Society of New Jersey , 38 N.J.L. 377."

Cf. Vesey v. Driscoll , 132 N.J.L. 293, 40 A. 2 d 291 (Sup. Ct. 1944).

Our review of the letters of the Commissioner convinces us that he merely expressed his opinion or interpretation of the legal effect of the referendum election with respect to the club licenses held by the appellants, that these letters did not constitute a final decision or action by him and, therefore, are not reviewable. The decided cases of our courts so hold, supra. For many years the Commissioner has adopted the practice of furnishing his opinions and views to issuing authorities, licensees and others who have communicated with him and who have posed certain questions and ...


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