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In re Sanders

decided.: June 26, 1956.

IN THE MATTER OF THE SUSPENSION OR REVOCATION OF THE DISTRIBUTOR'S CIGARETTE LICENSE OF MARTIN SANDERS, MILTON SANDERS, SAMUEL SANDERS AND SEYMOUR SANDERS, PARTNERS, T/A I. BOSS & CO., LICENSE NO. 96, AND THE RETAIL DEALER'S CIGARETTE LICENSE OF PHILIP HOCHMAN, LICENSE NO. 0709. MARTIN SANDERS, ET AL., T/A I. BOSS & CO., APPELLANTS,
v.
DIRECTOR, DIVISION OF TAXATION, DEPARTMENT OF THE TREASURY, STATE OF NEW JERSEY, RESPONDENT



Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

On November 18, 1955 the Director of the Division of Taxation, Department of the Treasury, ordered that the distributor's cigarette license No. 96 of the appellants Martin Sanders, Milton Sanders, Samuel Sanders, and Seymour Sanders, partners trading as I. Boss & Co., be suspended for a period of five consecutive business days beginning at noon on November 28, 1955, and that the retail dealer's license No. 0709 of Philip Hochman be likewise suspended for the same period. N.J.S.A. 56:7-33.

The retailer, Hochman, does not appeal from the order of suspension of his license but the Sanders, the distributors, do so in relation to the stated interruption of their license.

On appeal the latter proposed to us for decision three questions, viz. , (1) were the appellants accorded a fair and impartial hearing in consonance with the principles of due process; (2) was it prejudicially erroneous to consider the charges against the distributor and the retailer at the same hearing, and (3) was there adequate evidence to support the factual findings of the Director.

It is at once obvious that the holder of the distributor's license and the holder of the retailer's license were charged with cooperative participation in the transaction which allegedly constituted the infraction of N.J.S.A. 56:7-20. Tersely stated, the transaction between them was one in which the distributor was alleged to have given and the retailer accused of having received a rebate in the sale of cigarettes at two cents a carton below the legal minimum price.

Nowhere in the record can a faint intimation be found that either of the licensees desired a separate hearing. Indeed, the correlative and conjunctive characteristics of the charges would reasonably recommend a concomitant hearing. Naturally and logically would the evidence of charges of such mutuality be interrelated in its application to the alleged guilt of each of the accused, whether introduced concurrently or in immediately successive separate hearings. We fail to perceive any injustice suffered by the appellants

in the expeditious course of procedure thus voluntarily pursued.

The deprivation of the appellants of due process is suggested to exist in their failure to be represented at the hearing by an attorney. The situation in that particular is conspicuously exposed by the following quotation from the appendix:

"Mr. Tilton (State Supervisor of Cigarette Tax Bureau, the hearer): How do the licensees plead?

Mr. Sanders: Not guilty.

Mr. Tilton: And Mr. Hochman, how do ...


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