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Margate Tavern Owners'' Association v. Brown

Decided: October 14, 1976.

MARGATE TAVERN OWNERS' ASSOCIATION, PLAINTIFF-RESPONDENT,
v.
G. ROLAND BROWN AND CARL VALORE, DEFENDANTS, AND MARGATE CIVIC ASSOCIATION, AN UNINCORPORATED ASSOCIATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT



Matthews, Seidman and Horn.

Per Curiam

Margate Civic Association, an unincorporated association of this State, appeals from a judgment of the Superior Court, Chancery Division, made on October 4, 1976, permanently restraining G. Roland Brown, Clerk of the City of Margate, and Carl Valore, Clerk of the County of Atlantic, from "placing on the November 2, 1976 general election ballot, the proposed ordinance submitted by the Margate Civic Association and which was approved by the said G. Roland Brown."

On August 5, 1976 appellant civic association submitted a petition to Brown for filing. Said petition was certified to contain and did in fact contain signatures of approximately 26% of the number of votes cast at the last preceding general election in Margate. The last preceding general election in Margate took place in November 1975. The petition addressed to the city clerk is set forth in the appendix hereto.

As observed, the petition was filed pursuant to N.J.S.A. 40:74-14. The city clerk, having found the petition to be sufficient, complied with the terms of said § 14 and the ordinance was then processed for the purpose of being placed upon the ballot pursuant to said statute.

On August 16, 1976 plaintiff association instituted the instant action in the Chancery Division, asserting that the procedure followed by the civic association was improper, illegal and inappropriate, and demanded an injunction

against the placing of the ordinance on the ballot. The civic association, which was not named as a party to the action brought by plaintiff, was permitted to intervene in the action. Following a hearing before the trial judge, he rendered an oral opinion in which he recognized that ordinary rules of construction would dictate that statutes providing for initiative and referendum processes should be liberally construed. However, he concluded that "the failure to bring the petition under the procedural requirements of N.J.S.A. 33:1-47.1 was fatal to the validity of that portion [of the ordinance] dealing with the hours of sale." His opinion indicates that his greatest concern in arriving at his conclusion was that to allow the proposal to appear on the ballot as written in ordinance form with an explanatory statement as required by the Title 33 statute and a court-ordered five-year mandatory moratorium "completely ignores the statutory requirement that the hours question must be separately and specifically set forth and tends to blur the distinction which the Legislature clearly intended between referenda dealing with liquor hours and other referenda."*fn1

We infer from this statement that the judge apparently was of the mistaken view that the explanatory statement which is directed to appear immediately below the printed question, as set forth in the Title 33 statute, includes the statement that "no further referendum of the same question shall be held therein prior to the general election to be held in such municipality in the fifth year thereafter."

N.J.S.A. 33:1-47.1 provides one of two ways to fix hours between which the sale of alcoholic beverages at retail may be made. The other method is provided by N.J.S.A. 33:1-40, which permits a municipal board or governing body by ordinance or resolution to limit such hours.

Section 47.1 requires a very brief explanatory statement which is quoted specifically in that statute. It does

not require the language under the quoted statement to appear and thus it does not require the statement to include anything more than what is between the quotation marks.

Sharrock v. Keansburg , 15 N.J. Super. 11 (App. Div. 1951), held that the statement provided for in § 47.1 need not be followed verbatim. Quoting from d'Espard v. Essex Fells , 84 N.J.L. 181, 182 (Sup. Ct. 1913), it concluded that the statement was directory only, in the sense that it could be varied in its text in order to accommodate the objective of ...


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