I disagree with the majority holding that the writ ofcertiorari should be dismissed.
The eleventh reason filed by the prosecutor reads:
"The proceedings purporting to be a hearing, conducted by a part only of the members of said Commission, were informal and non-judicial, and did not afford the objectors to the granting and issuance of said licenses an adequate opportunity to be heard in objection to the granting and issuance thereof, and who were thereby denied due process of law, in violation of the Constitution of the United States."
This point is treated in the prosecutor's brief. It reads: "The hearing must be before a quorum of the administrative body andonly those members hearing the evidence should participate inits determination." (Italics mine.) In the brief filed by the Attorney-General, this point is discussed and I quote therefrom: *Page 137
"Fifthly, it is urged that the hearing must be held before a quorum of the administrative body and only those members hearing the evidence should participate in its determination. With this, we disagree. The aviation act specifically gives the power to its chairman or vice-chairman to conduct hearings in respect to matters involving aviation. It would seem very unreasonable to insist that because a member was not present he should be precluded after examination of the testimony presented before other members of the Commission and examination of the exhibits and factual and personal view of the ground situation — that this commissioner should be precluded from voting in favor or against the application."
The eleventh reason quoted above encompasses the point that one or more of the Commissioners who participated in the ruling under review did not hear all the evidence, and I am of the opinion that this court is bound by the decision of the Court of Errors and Appeals in McAlpine v. Garfield Water Commission,135 N.J.L. 497. In that case, hearings were held and one of the Commissioners who voted to discharge McAlpine was absent during the taking of part of the testimony. The Supreme Court held that this did not invalidate the action of the Commission but on appeal the Court of Errors and Appeals held otherwise; Judge Wells saying (at p. 500):
"It is well settled and well founded that in the conduct of such hearings these governmental bodies, being primarily administrative and not judicial, should not be held to strict conformity with judicial procedure required in a court of law. It is likewise well settled and well founded, however, that the employee concerned shall be given a fair and impartial trial. These elements of fairness and impartiality must appear in the conduct of the hearing itself and in the deliberations and decision which follow.
"Whenever any action is taken by a board or commission, it must necessarily be based upon the expressions of opinion and the vote of its members. If the action relates to a hearing such as concerned in this appeal, then the expressions of opinion and the votes of the several members must be based upon the evidence adduced from the hearing. Since it is not *Page 138 feasible to evaluate the personal influence which may be exerted by any one member, we believe it necessarily follows that fairness and impartiality can only be assured when the members participating in the deliberations and decision of the board or commission, following a hearing on employee performance, have had an equal opportunity to hear and evaluate all of the evidence presented at the hearing."
There is no dispute in the instant case that all of the evidence was not presented in the presence of all of the commissioners who voted to grant the license and for that reason I believe that the decision under review should be reversed.
I am unable to perceive any distinguishing feature between the McAlpine case and the instant case arising out of the fact that the former involved the discharge of an employee and that the present case involves the granting of a license. Implicit in the opinion of the Court of Errors and Appeals is the fundamental thought that a person who has not heard the testimony is in no legal status to act as judge of the cause. *Page 139