Clapp, Goldmann and Ewart. The opinion of the court was delivered by Ewart, J.A.D.
This is an appeal from an order made June 12, 1953 by the Director of the Division of Alcoholic Beverage Control affirming the action of the Township Committee of the Township of Millburn, sitting as an excise board, in having denied appellants' application for a plenary retail consumption license for premises situate at No. 5 Old Short Hills Road in the Township of Millburn.
The premises for which the application was made consist of a very old dwelling house in which appellants have operated for upwards of seven years past a restaurant under the name of "Millburn Inn." The premises have never heretofore been licensed to sell intoxicating beverages. It is situate on the same side of the street and adjacent to the Millburn High School, there being less than 200 feet in distance separating the inn and the high school building.
An earlier application for a license for the same premises was made by the same applicants on December 19, 1951. That earlier application was likewise denied on January 7, 1952 upon a technical ground, viz. , upon the ground that there was less than 200 feet distance from the nearest entrance to the school to the nearest entrance to the inn, measured in the normal way a pedestrian would properly walk. R.S. 33:1-76. No appeal was taken from the denial on January 7, 1952. Instead, the applicants constructed a cinder block wall effectively closing that entrance to the inn which was nearest the high school building and erected a fence part way across the entrance to the auto parking lot used by the inn's patrons so that, as a result of these structural changes the distance from the entrance to the inn to the nearest entrance to the high school building, measured in the normal way a pedestrian would properly walk, was extended to a distance of 205.8 feet. There was no change in the location of either the inn building or the high school building. Thereupon, appellants renewed their application for a plenary retail consumption license, a hearing was had before the township committee on October 20, 1952, and the three members of the committee then present at the meeting voted unanimously to deny the application. From that denial the applicants appealed to the Director of the Division of Alcoholic Beverage Control who affirmed the action of the township committee by an order made June 12, 1953, as aforesaid, and from that decision of the Director this appeal has been prosecuted.
No question has been raised as to the character or fitness of the applicants for the license.
The basis upon which the committee denied the second application for the license is set forth in the testimony of Clarence A. Hill, chairman of the township committee, as follows:
"Q. Will you state to the Director, through the Hearer, the grounds upon which you cast your vote against the application? A. Well, primarily on the ground that this inn is much too close to the high school. The high school happens to be the next door
neighbor of the inn. It is the next property to the inn. And we didn't consider it a proper location for a place serving liquor."
And later the same witness was questioned as to the effect of the structural changes made by the applicants for the license between the denial of the first application on January 7, 1952 and the filing of the second application at a later date, with the following result:
"Q. What, if any, effect upon your judgment, as one of the members of the local issuing authority, in denying the latest application did the presence of those changes to the premises in question have? A. I don't think they changed the situation one bit. In effect, we still have an inn which is in exactly the same position that it was when the prior application was denied. And nothing that has been done by way of installing a couple of rails in a driveway, or anything else for that matter, has removed the inn from its too close proximity to the high school."
And on cross-examination the witness was questioned as to the effect upon him of protests lodged with the committee by the board of education and by certain civic ...