Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re McGovern

Decided: March 19, 1962.

IN THE MATTER OF JAMES A. MCGOVERN, SUBDEALER, APPELLANT,
v.
FLOYD R. HOFFMAN, DIRECTOR OF THE OFFICE OF MILK INDUSTRY OF THE DEPARTMENT OF AGRICULTURE OF THE STATE OF NEW JERSEY, RESPONDENT



Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.

Foley

This is an appeal from a determination and order of the Director of the Office of Milk Industry (O.M.I.), revoking plaintiff's subdealer's license on the ground that the licensee violated a condition of his license imposed by the Director at the time of its issuance.

On August 26, 1960, following a hearing, plaintiff's application for a subdealer's license was granted. Annexed to the license was the following condition:

"This license is granted upon the following express condition: The licensee, in his activities as a subdealer, is not to employ or to associate with in a business capacity any person who previously has been responsible in whole or in part for any act on account of which a license may be denied, suspended or revoked pursuant to the provisions of the Milk Control Act. (N.J.S.A. 4:12A-1 et seq.)"

Prior to the issuance of the license appellant had been employed as a milk truck driver by the E.J. McGovern Dairy Products, Inc., a New Jersey corporation which held a subdealer's license. His brother Eugene J. McGovern was president of this corporation, and in managerial charge of its operation. Pursuant to N.J.S.A. 4:12A-35 this license had been revoked because the company, through Eugene J. McGovern, had (1) purchased milk at prices lower than the minimum fixed by O.M.I., (2) done so pursuant to a secret agreement between the dealer and the licensee for their payment, and (3) then filed a false sworn monthly report with O.M.I. that it had made no purchases at prices lower than the minimum price fixed by O.M.I. The revocation was affirmed by this court. See, In re E.J. McGovern Dairy Products , 60 N.J. Super. 163 (App. Div. 1959), affirmed o.b. 31 N.J. 601 (1960).

At the hearing on plaintiff's application for a subdealer's license he was interrogated concerning his possible business association with his brother Eugene, in the event that his application were granted. In this connection the following appears in the record:

"Q. Now, to make this very clear, should you be granted a license, would you have any relationship whatsoever, be it by even a debt or by silent partnership or anything along these lines, with E. J. McGovern?

A. No, sir, none whatsoever.

Q. Would you have any relationship again in a broader sense with E.J. McGovern Dairy Products Corporation?

A. No, sir."

The license was then issued with the quoted condition inserted.

Subsequently, O.M.I. issued an order to show cause why plaintiff's license should not be suspended or revoked, and a hearing thereon was conducted on November 21, 1960. At that hearing testimony was adduced through several witnesses, which established that on a number of specified dates between October 31, 1960 and November 17, 1960 Eugene J. McGovern had been observed making deliveries of milk to certain of plaintiff's customers. When called as a witness by appellant, Eugene admitted that on nine or ten occasions during the period mentioned he had made deliveries of milk in his brother's behalf. His explanation was that he did so at his brother's request, when truck drivers regularly assigned to routes did not appear for work, and that he was not paid for his services. Upon the testimony described the Director revoked the license, holding:

"The testimony * * * convinces me that Eugene McGovern operated a route for James McGovern regularly during the two months preceding the hearing. James McGovern was aware of this situation and further was aware that it was in violation of N.J.S. 4:12A-35(11). (This section specifically covers the employment of persons who were responsible for an act on account of which a license may be revoked.) Eugene McGovern is such a person. I, therefore, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.