Auto-Rite Supply Co. v. Mayor and Tp. Committeemen of Woodbridge Tp.

• Decision Date: 14 August 1956
• Docket Number: AUTO-RITE,No. L--4974--55,L--4974--55
• Citation: 124 A.2d 612,41 N.J.Super. 303
• Parties: SUPPLY CO., a corporation of the State of New Jersey, Rockford Furniture Co., a corporation of the State of New Jersey, American Shops, Inc., of Woodbridge, a corporation of the State of New Jersey, and Anna Miller and Irwin Mancbach, t/a Irwin's Fine Furniture, Plaintiffs, v. MAYOR AND TOWNSHIP COMMITTEEMEN OF THE TOWNSHIP OF WOODBRIDGE, and theTownship of Woodbridge, In the County of Middlesex, a municipal corporation ofthe State of New Jersey, Defendants. P.W. . Law Division
• Court: New Jersey Superior Court

Page 303

41 N.J.Super. 303

124 A.2d 612

AUTO-RITE SUPPLY CO., a corporation of the State of New Jersey, Rockford Furniture Co., a corporation of the State of New Jersey, American Shops, Inc., of Woodbridge, a corporation of the State of New Jersey, and Anna Miller and Irwin Mancbach, t/a Irwin's Fine Furniture, Plaintiffs, v. MAYOR AND TOWNSHIP COMMITTEEMEN OF THE TOWNSHIP OF WOODBRIDGE, and theTownship of Woodbridge, In the County of Middlesex, a municipal corporation ofthe State of New Jersey, Defendants.

No. L--4974--55 P.W.

Superior Court of New Jersey.

Law Division.

Aug. 14, 1956.

Jacobson & Winter, Perth Amboy, for plaintiffs.

Nathan Duff, Perth Amboy, for defendants (Robert N. Wilentz, Perth Amboy, of counsel).

EWART, J.S.C.

By this suit in lieu of the former prerogative writ of Certiorari, plaintiffs, taxpayers of the Township of Woodbridge, attack the validity of an ordinance of the Township of Woodbridge in the County of Middlesex adopted on or about February 7, 1956. A copy of the ordinance under attack is annexed to the complaint as Exhibit A.

The municipal defendants file formal answer denying the material allegations of the complaint and the plaintiffs, on notice, thereupon move for summary judgment under R.R. 4:58 upon the grounds that the ordinance is discriminatory against them in favor of other local merchants; that the ordinance violates the due process and equal protection clause of the Federal Constitution and constitutes an unreasonable exercise of police power; that the ordinance bears no reasonable relation to the police power under the Municipal Home Rule Act; that the ordinance is vague and ambiguous and therefore unenforceable; that the ordinance was promulgated and adopted for the benefit of certain private interests within the municipality; and that the ordinance by its terms is unreasonable, arbitrary and discriminatory in violation of constitutional guaranties. Plaintiffs supported their motion by affidavits of Irwin E. Mancbach, William Borbely, Adam Reiser, Harry Meyerson and Max Strelsin. The defendants filed no answering affidavits.

A reference to the ordinance will reveal that it is a penal ordinance prohibiting the sale, disposition or delivery on the Sabbath of a limited selected list of merchandise particularly described in the ordinance, under penalty, upon conviction, of either or both fine and imprisonment.

Defendants having filed no affidavits controverting the allegations of plaintiffs' affidavits, the factual matters (but not conclusions) set forth in the plaintiffs' affidavits are to be taken as true.

Statutory Law

While the Township of Woodbridge, a municipal corporation, possesses only such power to legislate by ordinance as the State has conferred upon it either in express terms or as arise by necessary or fair implication (New Jersey Good Humor, Inc., v. Board of Commissioners of Borough or Bradley Beach, 124 N.J.L. 162, at pages 164--165, 11 A.2d 113 (E. & A.1939); Reid Development Corp. v. Parisppany-Troy Hills Township, 31 N.J.Super. 459, at page 465, 107 A.2d 20 (App.Div.1954)), yet I think there is no question but that the Legislature has conferred upon municipalities in this State express authority to adopt ordinances to preserve the public peace and order (R.S. 40:48--1(6), N.J.S.A.) and such other ordinances as may be deemed necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants (R.S. 40:48--2, N.J.S.A.). Such delegation of power by the State to a municipal corporation represents an exercise of the police power inherent in every sovereign state.

Therefore, there would appear to be no doubt but that the Township of Woodbridge, a municipal corporation, has been delegated the power and does possess the authority, in exercise of the so-called police power, to adopt and to enforce ordinances to preserve the public peace and order and to promote the public health by providing for and attempting to secure repose and quiet on the Sabbath. It remains for determination, however, as to whether the particular ordinance under attack does constitute a valid exercise of that power.

Constitutional Guaranties

Article I, paragraph 1, of the 1947 New Jersey Constitution describes as a natural and unalienable right the acquisition, possession and protection of property, and paragraph 5 of the same Article provides that no person shall be denied the enjoyment of any civil right, nor be discriminated against in the exercise of any civil right.

And the 14th Amendment to the Federal Constitution forbids any State to deprive any person of property without due process of law, and forbids any state to deny to any person the equal protection of the laws.

Presumption as to Validity of Ordinance

There is, of course, a presumption in favor of the validity of an ordinance, and the burden of showing to the contrary rests upon those who attack it. Edwards v. Mayor & Council of Borough of Moonachie, 3 N.J. 17, 26, 68 A.2d 744 (1949); City of Elizabeth v. Windsor-Fifth Avenue Corp., 31 N.J.Super. 187, 106 A.2d 9 (App.Div.1954); Bellington v. Township East Windsor, 32 N.J.Super. 243, 108 A.2d 179 (App.Div.1954).

However, the court is charged with the duty of seeing to it that the efficiency of constitutional guaranties shall not be whittled away or eroded by unwarranted presumptions under the facts and circumstances of a particular case. Otherwise, constitutional guaranties protecting individual rights and rights of property would become a mere rope of sand in no wise restraining municipal or governmental action. Gulf, C. & S.F. Ry. Co. v. Ellis, 165 U.S. 150, 154, 17 S.Ct. 255, 41 L.Ed. 666 (1897); Washington National Ins. Co. v. Board of Review, etc., 1 N.J. 545, 554, 64 A.2d 443 (1949).

The Police Power and Its Limitations

The police power is an attribute of sovereignty and is inherent in every sovereign government. Reingold v. Harper, 6 N.J. 182, at page 194, 78 A.2d 54 (1951); 11 Am.Jur., 966--967. It comprehends measures essential to the preservation and protection of the public health, safety and common welfare. New Jersey Good Humor, Inc. v. Board of Commissioners of Borough of Bradley Beach, supra, 124 N.J.L. at pages 168--169, 11 A.2d at page 117; Reingold v. Harper, supra, 6 N.J. at page 190, 78 A.2d at page 57; 11 Am.Jur., 972--973.

And, of course, the police power inherent in every sovereign state may be delegated by it to its municipal corporations as has been done in this State by the statutory provisions above cited.

But broad as is the police power, it is not without its limitations. Its exercise must be directed to a legitimate end, that is, the protection of a basic interest of society rather than the advantage of particular individuals. Home B. & L. Association v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934); New Jersey Good Humor, Inc., v. Board of Comm'rs of Borough of Bradley Beach, supra, 124 N.J.L. at page 168, 11 A.2d at page 117; Reingold v. Harper, supra, 6 N.J. at page 192, 78 A.2d at page 58. Regulation of occupations cannot be valid where it amounts to an arbitrary or unwarranted interference with the right of a citizen to pursue a lawful business. A valid exercise of the police power is dependent upon a reasonable necessity for its exercise to protect the health, safety, morals or common welfare of the State and of its inhabitants. 11 Am.Jur., 1047--1048. And it is not within the bounds of reason to prohibit particular classes of business, lawful in themselves, for the enrichment or protection of another class. Subversion of competition is not in the public interest and the police power cannot lawfully be addressed to that end. New Jersey Good Humor, Inc., v. Board of Comm'rs of Borough of Bradley Beach, supra, 124 N.J.L. at page 168, 11 A.id at page 117.

An exercise by the State of police power affecting personal and property rights is nugatory unless made in good faith for the attainment of a public object. If the dominant purpose be the service of private interests under the cloak of the general public good, it constitutes a perversion and abuse of the power and is unlawful. New Jersey Good Humor, Inc., v. Board of Comm'rs of Borough of Bradley Beach, supra, 124 N.J.L. at page 169, 11 A.2d at page 117; Reingold v. Harper, supra, 6 N.J. at page 192, 78 A.2d at page 58. The police power may not be invoked for the economic protection alone of particular individuals or group of individuals. Reingold v. Harper, supra, 6 N.J. at page 192, 78 A.2d at page 58.

Another important limitation upon the exercise of the police power by the Legislature, or by a municipality where that power has been delegated by the Legislature, is to be found in the due process and equal protection clauses of both our State Constitution and the Federal Constitution. 1947 N.J.Constitution, Article I, paragraphs 1, 5; 14th Amendment, Federal Constitution. Each forbids class legislation arbitrarily discriminatory against some and favoring others in like circumstances. It is essential that the classification itself be reasonable and not arbitrary and be based upon material and substantial distinctions and differences reasonably related to the subject matter of the legislation or to...