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In re Larsen

Decided: January 29, 1952.

IN THE MATTER OF DISCIPLINARY PROCEEDINGS AGAINST VIRGINIA P. LARSEN, T/A OLE'S RANCH, DUTCHTOWN ROAD, KRESSON, VOORHEES TOWNSHIP, P.O. MARLTON RFD, N.J., HOLDER OF PLENARY RETAIL CONSUMPTION LICENSE C-2 FOR THE 1950-51 AND 1951-52 LICENSING YEARS, ISSUED BY THE TOWNSHIP COMMITTEE OF VOORHEES TOWNSHIP


McGeehan, Jayne, and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D. William J. Brennan, Jr., J.A.D. (concurring).

Jayne

On October 22, 1951, the Director of the Division of Alcoholic Beverage Control suspended for a period of 180 days the plenary retail consumption license theretofore issued to the appellant for the premises known as Ole's Ranch in Voorhees Township.

The alleged infraction which occasioned the disciplinary proceedings was that on May 31, 1951, and on divers days prior thereto, the licensee allowed, permitted, and suffered lewdness and immoral activity in and upon the licensed premises, viz. , the renting of rooms for the purpose of illicit sexual intercourse, in violation of Rule 5 of State Regulations No. 20. Vide, R.S. 33:1-26, 31, 39, 73; R.S. 52:17 B -51.

In the consideration of the present appeal we hold fast to the legal principles that we have heretofore deemed applicable to similar proceedings as announced in our recent decisions in In re Schneider , 12 N.J. Super. 449 (App. Div. 1951); Greenbrier, Inc., v. Hock , 14 N.J. Super. 39 (App. Div. 1951), certif. den. 7 N.J. 581 (1951).

The subjects debated in the prosecution of the present appeal are: (1) whether the evidence adduced adequately sustains the determination of the Director that the licensee was guilty of the alleged transgression comprehended by Rule 5, State Regulations No. 20; (2) whether the investigatory methods and course of conduct pursued by the agents of the Division in quest of evidence are contrary to law or public policy; and (3) whether the suspension of the license for the stated period of 180 days was inordinately harsh, excessive, and arbitrary.

In view of the pertinent principles of law which by reference to the opinion in the Schneider case, supra , we iterate in the determination of the present appeal, our comment will relate to the three points thus projected.

It is immediately obvious that the testimony, together with the exhibits such as the registration cards, room keys, and identified money, adequately warranted in an evidential respect

the factual conclusion that the servants of the licensee in the pursuit of their employment arranged for the rental of, and actually let in the licensed premises, "rooms for purposes of illicit intercourse."

We are earnestly importuned by counsel for the appellant to recognize the appeal as the practical equivalent of a trial before us de novo on the record submitted. The overture sprouts from a speculative perversion of Rule 3:81-13. Interpretative expositions of the import and meaning of this rule have been numerous. We are empowered not only to review the facts and make independent findings thereon, but the exercise of this power is permissive and a litigant may not as a matter of right require our exercise of it. Cf. Rules 1:2-20 and 4:2-6.

In the oral discourse at the argument of this appeal it was pointed out that the Director promulgates the rules, employs the agents to make the investigations, and ultimately adjudicates the merits of the complaints made by and, as here, supported by the testimony of his own representatives. The answer which immediately falls off the tip of the tongue is that in the evolution of governmental administrative and supervisory agencies, the Congress and the state legislatures have constitutionally and quite uniformly delegated to such agencies the power to adjudicate controversies arising within the area of the particular administrative field. The problem of merger of powers of prosecutor and judge in administrative agencies is one with which students of American administrative law have been much concerned. See Schwartz, American Administrative Law, p. 101, et seq (1950). In Brinkley v. Hassig , 83 Fed. 2 d 351, 356 (C.C.A. 10, 1936), the court stated:

"The spectacle of an administrative tribunal acting as both prosecutor and judge has been the subject of much comment, and efforts to do away with such practice have been studied for years. The Board of Tax Appeals is an outstanding example of one such successful effort. But it has never been held that such procedure denies constitutional right. On the contrary, many agencies have

functioned for years, with the approval of the courts, which combine these roles. The Federal Trade Commission investigates charges of business immorality, files a charge in its own name as plaintiff, and then decides whether the proof sustains the charges it has preferred. The Interstate Commerce Commission and state Public Service Commissions may prefer complaints to be tried before themselves."

Vide, Gellhorn, Administrative Law, p. 731, et seq.; Invective and Investigation in Administrative Law , 52 Harv. L. Rev. 1201. The wisdom and prudence of the legislative delegation of such a broad variety of functions to an administrative executive or board are not justiciable subjects.

Strictly, an administrative adjudication is not judicial; hence its characterization as " quasi -judicial" is employed to denote its detachment from the judicial branch of the government. Administrative adjudications are nevertheless subject to judicial review. If, for example, the adjudication offends the State or Federal Constitution, is ultra vires the statutory grant, is unsupported by adequate evidence, or is unreasonable, unjustly discriminatory, arbitrary, or capricious, the intervention of the courts may be invoked.

Of what relevancy to the consideration of the present appeal has the mere breadth of the delegated duties and powers of the Director? We suspect that we are invited even in the absence of any indicative evidence judicially to entertain the inference that the Director by reason solely of his official situation and environment did not critically scrutinize the testimony of his investigators.

Where such a proposed inference is neither based upon evidence nor upon the substructure of common knowledge and experience, it is essentially visionary, resting only upon a foundation purely imaginary and supposititious. To improvise and effectuate such an inference in proceedings of this nature would be an untenable abridgment and unjustifiable weakening of the disciplinary powers expressly conferred upon the Director by the Legislature. Moreover in its pragmatical consequence, the Division of Alcoholic Beverage

Control would, as suggested by the Deputy Attorney-General, "become little more than a medium for the transmission of ...


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