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Cafe Gallery Inc. v. State

Decided: March 25, 1983.

CAFE GALLERY, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DIAMOND CASINO, INC., A CORPORATION OF THE STATE OF NEW JERSEY T/A LONDONSHIRE HOUSE, CARUGNO, INC., A CORPORATION OF THE STATE OF NEW JERSEY, T/A ARTHUR'S HOUSE OF FINE FOODS, AND THE CITY OF BURLINGTON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFFS,
v.
STATE OF NEW JERSEY, BY THE DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF ALCOHOLIC BEVERAGE CONTROL, JOSEPH A. LERNER, AS DIRECTOR OF THE DIVISION OF ALCOHOLIC BEVERAGE CONTROL, AND JOHN DOE, CONSTITUTING ANY UNNAMED OR UNKNOWN ENFORCEMENT AGENTS FOR THE DIVISION OF ALCOHOLIC BEVERAGE CONTROL, CHIEF CLAYTON, CHIEF OF THE POLICE DEPARTMENT OF THE CITY OF BURLINGTON, AND XYZ CORPORATION AND JOHN SMITH, REPRESENTING THE NAMES OF ALL OTHER PLENARY RETAIL CONSUMPTION LICENSEES WITHIN THE CITY OF BURLINGTON, MORE PARTICULARLY DESCRIBED ON EXHIBIT ARE MADE A PARTY TO THIS ACTION AS A CLASS REPRESENTING LICENSEES NOT ENTITLED TO OPEN ON SUNDAY WITHIN THE CITY OF BURLINGTON, DEFENDANTS



Haines, A.j.s.c.

Haines

[189 NJSuper Page 471] The Sunday sale of alcoholic beverages has been a controversial issue in the City of Burlington for many years. In Cafe Gallery v. Burlington, 186 N.J. Super. 189 (Law Div.1982), this court recognized the validity of a 1949 city referendum prohibiting such sales, while striking down five subsequent referenda on the same subject. The effect of the decision was to prevent the sale of alcoholic beverages in Burlington's restaurants, otherwise permitted for 11 years by referenda, ordinance and the Division of Alcoholic Beverage Control. The effect of the decision was postponed to permit submission of new referenda in the November 1982 election. New referenda were submitted accordingly.

If adopted, they would have permitted Sunday sales in the city by all licensees, whether or not operating restaurants. The referenda were defeated, apparently continuing the Sunday sales prohibition. Shortly before the election, however, Senate Bill 1645, a special law, L. 1982, c. 147, became effective. It applied only to the City of Burlington, permitting restaurants there to sell alcoholic beverages on Sundays, provided the city adopted an appropriate ordinance. It did so a few days before the election. The results of the referenda were therefore ignored. The Sunday sale of alcoholic beverages in Burlington's restaurants has continued unabated.

Defendant class now challenges the validity of the special law, claiming it violates Due Process and Equal Protection Clauses of our State and Federal Constitutions. It also argues that (1) the city's ordinance authorizing the petition which requested the Legislature to enact a special law was ultra vires and (2) the referendum provisions of our Alcoholic Beverage Law prevail over the provisions of the special law. Finally, the class challenges the validity of the 1982 referenda.

Special legislation is authorized by N.J.Const. (1947), Art. IV, ยง VII, par. 10, which states:

Upon petition by the governing body of any municipal corporation formed for local government, or of any county, and by vote of two-thirds of all the members of each house, the Legislature may pass private, special or local laws regulating the internal affairs of the municipality or county. The petition shall be authorized in a manner to be prescribed by general law and shall specify the general nature of the law sought to be passed. Such law shall become operative only if it is adopted by ordinance of the governing body of the municipality or county or by vote of the legally qualified voters thereof. The Legislature shall prescribe in such law or by general law the method of adopting such law, and the manner in which the ordinance of adoption may be enacted or the vote taken, as the case may be.

General laws prescribing the method for adopting special legislation have been enacted by the Legislature. They appear in N.J.S.A. 1:6-10 et seq. The city's procedures comply with the statutory provisions.

N.J.S.A. 33:1-47 and 47.1 authorize Sunday sales referenda. The class contends that they take precedence over the special legislation. Its argument is without merit. The Legislature did not intend that result. Its special law was enacted at Burlington's request after the decision in Cafe Gallery v. Burlington, supra, which construed our Sunday sales statutes and threatened an end to such sales in the city's restaurants. The Legislature "is presumed to be familiar with judicial declarations" relating to its own enactments. State v. Federanko, 26 N.J. 119, 129 (1958). When it adopted the special law it must have intended to overcome the consequences of Cafe Gallery and the 1949 referendum. This result would follow only if the existing legislation were made subordinate to the special law. General rules of construction also support this conclusion. Where "a subsequent legislative enactment clearly conflicts with an earlier statute affecting the same subject matter, the courts will find a legislative intent to supersede the earlier law." American Fed'n State, Cty. Mun. Emp. v. Hudson Welf. Bd., 141 N.J. Super. 25, 32 (Ch.Div.1976).

The defense argues also that the city's ordinance, authorizing the petition to the Legislature, was ultra vires. It stresses the provisos in N.J.S.A. 33:1-47 and 47.1 which state that "so long as such referendum [regarding Sunday sales] remains effective, all ordinances, resolutions or regulations inconsistent with the result of such referendum shall have no effect within such municipality." That language cannot be read as contradicting the Constitution, which does not require deference by special laws to existing enactments. Neither does N.J.S.A. 1:6-10 et seq, which establishes procedures for the adoption of special laws. N.J.S.A. 33:1-47 and 47.1, if construed as the defense contends, would conflict with N.J.S.A. 1:6-10 et seq. This is contrary to the principle that statutes should be construed harmoniously. State v. Federanko, supra 26 N.J. at 129. That principle is observed when N.J.S.A. 33:1-47 is interpreted as being subordinate to N.J.S.A. 1:6-10.

The class's constitutional challenges are equally unpersuasive. The courts, particularly trial courts, are very reluctant to reach the conclusion that a statute is unconstitutional. Supermarkets General Corp. v. Sills, 93 N.J. Super. 326 (Ch.Div.1966). Statutes should be interpreted to reach an opposite result. A strong presumption favors the validity of legislation. Velmohos v. Maren Engineering Corp., 83 N.J. 282 (1980). These rules place a heavy burden upon one who challenges legislation as arbitrary and unreasonable. Orange Taxpayers Council v. Orange, 83 N.J. 246, 256 (1980); Harvey v. Essex Cty., 30 N.J. 381, 388 (1959).

The initial constitutional argument points to the voting rights conferred upon city residents by the Alcoholic Beverage Law's referenda provisions. It is claimed that the importance of the right to vote is so highly considered that any special law removing that right must be unconstitutional. Plainly, this is not so. There is no fundamental constitutional right to a referendum; such right is created only by legislation. Stop the Pay Hikes Comm. v. Irvington, 166 N.J. Super. 197, 208 (Law Div.1979); Smith v. Livingston Tp., 106 N.J. Super. 444 (Ch.Div.1969). This is especially true in the case of alcoholic beverages, the regulation of which is within the nearly absolute control of the Legislature. Mazza v. Cavicchia, 15 N.J. 498 (1954). It could, for example, abolish the right to sell such beverages if it wished to do so. Eskridge v. Alcoholic Beverage Control Div., 30 N.J. Super. 472 (App.Div.1954). ...


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