Borough of Dumont v. Caruth

Citation123 N.J.Super. 331,302 A.2d 566
PartiesThe BOROUGH OF DUMONT, Plaintiff, v. Brian CARUTH et al., Defendants.
Decision Date06 March 1973
CourtMunicipal Court of New Jersey

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 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.

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 state or of the United States, as it may deem 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, and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law.

The regulation in question was adopted by the Dumont Recreation Commission pursuant to Ordinance #2--31, which is enacted under authority of, and is substantially similar in wording to, N.J.S.A. 40:12--6, which follows:

The board of recreation commissioners shall have full control over all lands, playgrounds and recreation places acquired or leased under the provisions of sections 40:12--1 to 40:12--9 of this title (pertaining to the establishment and powers of boards of recreation commissioners over parks an dplaygrounds) and may adopt suitable rules, regulations and by-laws for the use thereof, and the conduct of all persons while on or using the same; and any person who shall violate any of such rules, regulations or by-laws shall be deemed and adjudged to be a disorderly person. . . .

I agree with Dumont's contention that the Legislature's use of the word 'and' between the phrases 'may adopt . . . rules . . . for the use thereof' and 'the conduct of all persons while on or using the same' indicates a desire to invest authority to regulate more than the mere deportment of persons using public parks. The Legislature clearly intended to allow the municipalities, through their boards of recreation commissioners, to regulate the 'use' of parks As well as conduct while using them.

The municipality contends that the word 'use' means that it is empowered to determine whether and When the parks can be used at all, rather than merely the uses to which the parks may be put. I agree. A survey of the cases dealing with the power of municipalities over public facilities in general bears out this conclusion. A municipality holds public property in trust for the public, but there is no requirement that such property must be made available for public use at all times. It is entirely reasonable, and I am sure that this is what the Legislature intended by wording the statute as it did, that in the interest of public safety and welfare a municipality may close a park during certain hours of the night just as it may close public buildings. Surely the Legislature did not intend that municipalities are required to hold open all public facilities for public use 24 hours a day.

The United States Supreme Court has addressed this subject in a case arising from New Jersey, Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). The court modified and affirmed a decree declaring unconstitutional a Jersey City ordinance which required a permit to be issued by the Chief of Police for the leasing of a hall for any public meeting at which the speaker advocated various 'suversive' positions. The court ruled, as had the United States Court of Appeals for the Third Circuit, 101 F.2d 774 (3d Cir. 1939), modifying Committee for Industrial Organization v. Hague, 25 F.Supp. 127 (D.N.J.1938), that the ordinance unconstitutionally permitted uncontrolled suppression by public officials of freedom of expression of views. In making this determination, the court, by Mr. Justice Roberts, made the following observations regarding...

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3 cases
  • Sente v. Mayor and Municipal Council of City of Clifton
    • United States
    • New Jersey Supreme Court
    • 12 Diciembre 1974
    ...570, 308 A.2d 60 (Law Div.1973); an ordinance preventing one's presence in a municipal park after dark--Borough of Dumont v. Caruth, 123 N.J.Super. 331, 302 A.2d 566 (Mun.Ct.Dumont 1973); an ordinance licensing cigarette machines--Coast Cigarettes Sales, Inc. v. Mayor, Coun., Long Branch, 1......
  • State v. Tiernan
    • United States
    • New Jersey County Court
    • 13 Marzo 1973
  • Board of Recreation Com'rs of Borough of Rutherford v. Borough of Rutherford
    • United States
    • New Jersey Superior Court — Appellate Division
    • 7 Marzo 1979
    ...Solid Waste Managem. Auth. v. Ringwood, supra, 131 N.J. at 70, 328 A.2d 258. Judge (now Justice) Pashman in Dumont v. Caruth, 123 N.J.Super. 331, 302 A.2d 566 (Mun.Ct. 1973), expressed the function of such boards accurately when he * * * The Legislature clearly intended to allow the municip......

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