
    ALFRED L. PEER, PROSECUTOR, v. THE BOARD OF EXCISE COMMISSIONERS OF NEWARK ET AL.
    Argued November 6, 1903
    Decided February 23, 1904.
    A license to sell liquors by less measure than one quart cannot be granted for a place in which a grocery or other mercantile business is carried on. Pamph. P. 1889, p. 97, § 11.
    On certiorari.
    
    Before Justices Fort and Pitney.
    For the prosecutor, Elvin W. Grane.
    
    For the defendants, Malcolm MacLear.
    
   The opinion of the court was delivered by

Fort, J.

The license granted to the defendant, the Family Supply Company, and brought up by the writ in this case, is a license under which the defendant may sell spirituous, vinous, malt and brewed liquors by less measure than one quart.

The proof clearly demonstrates that the place where the license was granted to permit such sale was a store in which a grocery and other mercantile business was carried on.

The granting of such a license to sell liquors in such a placéis prohibited by statute. Pamph. L. 1889, p. 77, § 11;. Gen. Slat., p. 1813, § 141.

Aii attempt was made to prove that the place where the liquor part of the business was to be conducted was in a separate part of the premises from that used in the general business.

It is manifest that the alleged separation is a subterfuge; does not exist, in fact, and is not intended to be a separation. There is not so much even as a partition between the place where groceries and other articles are sold and the “space,” so to spealc, alleged to be set apart for the sale of liquor.

The excise board of the city of Newark was without power to grant the license brought up.

It is the duty of the court or board having power to grant licenses, when it is alleged that the place sought to be licensed is a grocery store or other place where a mercantile business is carried on,. to investigate as to the -truth of the allegation, and if the fact appears to be as alleged, to refuse the license under which the licensee can sell by a less measure than one quart.

The license in this case is vacated and set aside, with costs.  