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Walinski v. Mayor and Council

Decided: February 24, 1953.

ANDREW J. WALINSKI, PLAINTIFF,
v.
MAYOR AND COUNCIL OF THE CITY OF GLOUCESTER; THOMAS WINKELSPECHT, CHIEF OF POLICE OF THE CITY OF GLOUCESTER; AND DOMINIC A. CAVICCHIA; DIRECTOR OF THE DIVISION OF ALCOHOLIC BEVERAGE CONTROL OF THE STATE OF NEW JERSEY, DEFENDANTS



Haneman, J.s.c.

Haneman

[25 NJSuper Page 125] The plaintiff herein originally demanded relief in two counts: (1) a declaratory judgment concerning a certain referendum held in the City of Gloucester City, and (2) an injunction against allegedly extra-legal

acts of the defendants in a purported enforcement of the law resulting from said referendum as defendants interpreted it.

At the pretrial conference the issue was narrowed to the relief demanded in the first count.

Under the pleadings here present, and in the present posture of this case, the defendants have conceded that this is a proper matter for determination under R.S. 33:1-47.

The problem arises under R.S. 33:1-47, which reads as follows:

"Whenever a petition, signed by at least fifteen per centum (15%) of the qualified electors of any municipality as evidenced by the total number of votes cast for members of the General Assembly, at the then next preceding general election held for the election of all of the members of the General Assembly, in such municipality, shall be presented to the governing board or body thereof, requesting a referendum on the question hereinafter stated, such governing board or body shall adopt forthwith a resolution directing the clerk of the county in which said municipality is situated to print, pursuant to Title 19, Elections, hereinafter referred to as the 'general election law,' upon the official ballot to be used in such municipality at the next ensuing general election, a question to read: 'Shall the sale of alcoholic beverages be permitted on Sundays in this municipality?' Thereupon the clerk or secretary of the governing board or body of such municipality shall forthwith deliver to such county clerk a certified copy of such resolution. If such copy shall be delivered to the county clerk not less than thirty days before such general election, he shall cause such question to be printed in an appropriate place on the ballot to be used in such municipality at the next ensuing general election, pursuant to the general election law and thereupon all proceedings with respect to the referendum on such question shall be subject to and governed by the general election law as in other cases of the submission of public questions to the electorate.

If a majority of the legal voters voting upon the question shall vote 'Yes,' the clerk of the governing board or body of such municipality shall forthwith in writing notify the commissioner and municipal board, if any, having authority to issue such licenses, of the action taken by the legal voters of such municipality and the sale of alcoholic beverages on Sundays pursuant to the provisions of this chapter shall be permitted in such municipality.

If a majority of the legal voters voting upon the question shall vote 'No,' then the clerk of the governing board or body of such municipality shall forthwith in writing notify the commissioner and municipal board, if any, as the case may be, having authority to issue such licenses of the action taken by the legal voters of such municipality,

and thereupon it shall be unlawful for any person to sell alcoholic beverages in such municipality on Sundays and such sale shall constitute a violation of this chapter. (Italics supplied.)

The facts in connection herewith are as follows:

Pursuant to the above cited law, a proper petition having been presented to the governing body of the City of Gloucester, there was included on the ballot for the general election held on November 4, 1952, this question:

"Shall the sale of alcoholic beverages be permitted on Sundays in this municipality?"

As a result of a recount it was determined that there were 3,328 votes cast in the negative and 2,373 votes cast in the affirmative on said question.

The plaintiff, a holder of a plenary retail consumption license under R.S. 33:1 et seq. , seeks to have determined the effect of the statute and referendum, to the end that it may be concluded whether the sale of alcoholic beverages is prevented in the City of Gloucester from midnight Saturday to midnight Sunday (as contended by defendants) or from 2 A.M. Sunday to midnight Sunday, as contended by plaintiff.

The plaintiff's statement of his contention is set forth in paragraph 9 of the complaint, which reads as follows:

"9. Plaintiff avers and contends that within the meaning and intent of the said provisions of the said ordinance and by reason of the result of the said public question as aforesaid, the sale of alcoholic beverages within the said City of Gloucester is prohibited after 2 A.M. on a Sunday to 7 A.M. Monday morning. The said 2 A.M. being the closing hour of Saturday, the weekday preceding the said Sunday and the 2 A.M. being the closing hour as provided in said ordinance and that the said referendum did not affect that closing hour."

Plaintiff as well contends that "in accord with custom the word Sunday * * * should be considered or interpreted to mean the business day of Sunday, beginning with the opening of business on that day."

In support of this argument, plaintiff submits the following in an attempt to show the interpretation of Sunday by the ...


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