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Township Committee of Township of Freehold and Harold F. McCormick and William S. McCormick Trading v. Gelber

Decided: June 24, 1953.

TOWNSHIP COMMITTEE OF THE TOWNSHIP OF FREEHOLD AND HAROLD F. MCCORMICK AND WILLIAM S. MCCORMICK TRADING AS MCCORMICK BROTHERS, APPELLANTS,
v.
WILLIAM H. GELBER AND DIVISION OF ALCOHOLIC BEVERAGE CONTROL, RESPONDENTS



Goldmann, Smalley and Schettino. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).

Schettino

This is an appeal from an order of the Director of the Division of Alcoholic Beverage Control reversing the action of appellant, Township Committee of the Township of Freehold, in issuing a plenary retail distribution license to appellants McCormick Brothers, and directing the cancellation of the license.

On June 27, 1952 the township committee took final action upon an ordinance relating to the issuance of one plenary retail distribution license. The record is not clear as to the precise content of that ordinance, but we gather the result of the amendment was that one such license could be issued upon the vote of two of the three members of the committee. At the same meeting, the committee had before it four applications for that license, which included one by the McCormick Brothers and another by respondent, Gelber. No action was taken upon any of the applications other than the McCormick application, and the record of the proceedings of that day discloses two members voting for the McCormick application and the remaining member "not voting." From that action Gelber appealed to the director, who entered the order here under review.

A full blood brother of the McCormick Brothers was a member of the township committee. He abstained from voting upon the amendatory ordinance described above, but upon the consideration of the application, his was one of the two votes cast in favor of it. The director concluded McCormick was disqualified because of interest and his disqualification vitiated the action of the committee.

Appellants contend: (1) The director was without jurisdiction to entertain the appeal; (2) McCormick was not disqualified; (3) if McCormick was otherwise disqualified, the rule of necessity authorized his vote because the third committee member abstained; (4) the vote of the abstaining member should be deemed to be an affirmative vote, and thus the necessary vote of two members is supplied notwithstanding the vitiation of McCormick's vote. We will consider these points in the stated order.

I.

Appellants concede the appeal was authorized by R.S. 33:1-22 prior to its amendment in 1946, but urge the amendment removed that right. The amendment added the words italicized in the following provision:

"If the other issuing authority shall issue a license, or grant an extension of said license for a limited time not exceeding its term, to the executor or administrator of a deceased licensee, or to such person who shall be appointed by the courts having jurisdiction, in the event of the incompetency of any licensee , any taxpayer or other aggrieved person opposing the issuance of such license may, within thirty days after the issuance of such license, appeal to the commissioner from the action of the issuing authority."

We are satisfied that the amendment had no such effect. Its purpose was merely to add to the category of appealable actions the grant of extensions in the situations embraced in the italicized portion in order to fill a gap in the statutory scheme. It could not have been the intention of the Legislature to terminate a right of review of the issuance of licenses. No reason is suggested why the Legislature would have planned the curious situation for which appellants contend. The construction urged by appellants could not be adjusted with the legislative objective that the director be vested with jurisdiction to accomplish "'fair, impartial, stringent and comprehensive administration' of the statute." Brush v. Hock , 137 N.J.L. 257, 260 (Sup. Ct. 1948). We cannot attribute to the Legislature a purpose so at variance

with the common sense of the situation when the language used is susceptible of a ...


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