Barnes. v. Essex County Park Comm'n
| Decision Date | 25 September 1914 |
| Docket Number | No. 79.,79. |
| Parties | BARNES et al. v. ESSEX COUNTY PARK COMMISSION et al. |
| Court | New Jersey Supreme Court |
Appeal from Supreme Court.
Certiorari by Robert Barnes and others against the Essex County Park Commission and others, to review the validity of an ordinance of such commission. From a judgment setting aside the ordinance (88 Atl. 837), defendants appeal. Affirmed.
Alonzo Church, of Newark, for appellants. Borden D. Whiting, of Newark, for appellees.
The Essex County Park Commission on January 7, 1913, passed an ordinance excluding from the parkway known as Park avenue in Essex county "omnibuses, express wagons, carts or other vehicles carrying or ordinarily used to carry merchandise, goods, tools, or rubbish, however propelled, * * * except as it may be necessary to carry supplies to or from residences on either side of the avenue, or in case of buildings being erected fronting on said avenue, when it shall be lawful to carry building materials thereto. * * *" The prosecutors, respondents, engaged in the grocery business and having a store on Park avenue (the one in question) with customers located, some of them on the avenue, and more elsewhere, to whom they delivered goods by means of ordinary grocery delivery wagons, of which they run six in number, constantly using the avenue for delivery purposes, obtained a certiorari to review the validity of the ordinance. The Supreme Court, after hearing, set the ordinance aside, and the respondents appealed.
We agree with the Supreme Court that Park avenue, laid out under authority of the act of the Legislature (P. L. 1870, p. 181), is a public highway. This is so by the express language of that statute, which enacts that the avenues, when constructed by the board, "shall be deemed and taken to be public roads or highways." It is true too that Park avenue has been used as a public road and highway without restriction until restricted use was attempted to be imposed upon it by the ordinance under consideration.
The Supreme Court in its opinion says that if the public enjoyment of the avenue is now to be impaired, it can only be because the Legislature has passed some act under which power to that end has been clearly granted and expressed, and that this has not been done.
The act under which the commission is empowered to pass ordinances (P. L. 1907, p. 180, § 1) provides:
"The said board shall have full power and authority and is hereby...
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