302 A.2d 566 (N.J.Mun.Ct. 1973), Borough of Dumont v. Caruth

Citation:302 A.2d 566, 123 N.J.Super. 331
Opinion Judge:[9] Pashman
Party Name:The BOROUGH OF DUMONT, Plaintiff, v. Brian CARUTH et al., Defendants.
Attorney:[6] Mr. Emil S. Cuccio, Acting Borough Prosecutor, for the Borough of Dumont; (Messrs. Calissi, Klinger, Cuccio and Baldino, attorneys); Mr. Emil S. Cuccio on the brief.
Case Date:March 06, 1973
Court:Municipal Court of New Jersey

Page 566

302 A.2d 566 (N.J.Mun.Ct. 1973)

123 N.J.Super. 331



Brian CARUTH et al., Defendants.

Municipal Court, Borough of Dumont, New Jersey.

March 6, 1973

Page 567

[123 N.J.Super. 333] Emil S. Cuccio, Hackensack, Acting Borough Prosecutor, for Borough of Dumont (Calissi, Klinger, Cuccio & Baldino, Hackensack, attorneys), Emil S. Cuccio, Hackensack, on the brief.

Vincent McCarthy, Hackensack, for defendants Brian Caruth, Pamela Filipowicz and James Alimena (Bergen County Legal Services Assurance Corporation, attorneys), Vincent McCarthy, Hackensack, on the brief.

PASHMAN, A.J.S.C., Temporarily Assigned.

Defendant were charged by the Borough of Dumont with violating Ordinance #536, Chapter 2--31, in that they were present on June 6, 1972 at 11:06 p.m. in a Borough park located at 15 New Street in Dumont after the 11:00 p.m. curfew.

The ordinance in question adopted rules and regulations regarding the use of Borough parks and the facilities therein. One of the regulations provides that '(n)o person may remain, stay or loiter in a park between the hours of 11 o'clock p.m. and sunrise.' The foregoing facts have been stipulated.

In challenging the validity of this ordinance, the defendants, while framing their argument in somewhat more elaborate terms, are in essence claiming that:

(1) the ordinance constitutes an unreasonable exercise of the police power in that there is no statutory authority for the imposition of the curfew and that there is [123 N.J.Super. 334] no necessity to justify its imposition under the general police power, and

(2) even if there is authority for the Borough to enact such an ordinance, the imposition of the curfew is done in such a way as to allow for arbitrary enforcement and abuse of police power so that the ordinance must be stricken as vague and over-broad in that it allows punishment of innocent conduct.

Page 568

To counter these arguments, Dumont claims that N.J.S.A. 40:12--6 explicitly grants municipalities the right to enact regulations governing the use of parks and playgrounds and that this statute authorizes the imposition of the curfew in question. It contends that because of this legislative authorization, the standards governing the validity of a general curfew do not apply and municipalities are to be allowed greater latitude in regulating the use of parks than in the case of public streets and sidewalks in general. In addition, it contends that the ordinance and its adopted regulations, taken as a whole, establish a valid constitutional purpose and set forth reasonable constitutional standards for enforcement which do not allow unconstitutional arbitrary enforcement.

We turn first to the question of whether the municipality is empowered either by specific statutory grant or by the general police power to impose a curfew in its parks.

The general power of municipalities to act for the welfare of their inhabitants derives from two main sources other than the specific grants of authority in N.J.S.A. 40:48--1. It derives from specific grants of authority contained in many statutes in which municipalities are directed or advised to carry out the will of the Legislature in specific instances and it derives from N.J.S.A. 40:48--2, which provides as follows:

Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this...

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