Chaiet v. City Of East Orange.
| Decision Date | 14 January 1948 |
| Docket Number | No. 237.,237. |
| Citation | 136 N.J.L. 375,56 A.2d 599 |
| Parties | CHAIET et al. v. CITY OF EAST ORANGE. |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
Certiorari by Joseph Chaiet, trading as Orange Used Car Company, and others against the City of East Orange to determine validity of redinances.
Writ dismissed.
October term, 1947, before CASE, C. J., and BURLING, J.
Milton M. Unger, Adrian M. Unger and Henry Gottfried, all of Newark, for prosecutors.
Walter C. Ellis, of East Orange, for defendant.
The City of East Orange has ordinances which, read together, require those who would engage in the business of selling or exchanging automobiles on open lots to obtain a license to do so, to pay a license fee of $300 if the area is not more than 10,000 square feet or $500 if the area exceeds that square footage and within ten days after the license is granted to enclose the area by a fire proof fence not less than 18 inches in height without openings except where the street curb has been lowered in accordance with the rules of the engineer's office. Prosecutors assert that new cars are sold only from showrooms, wherefore the ordinances in actual practice apply only to ‘used car lots'; a conclusion which may be conceded without weakening the defendant's case.
Three of the prosecutors, severally, come within the application of the ordinance provisions and deny the legality thereof upon the grounds, first, that they are discriminatory and, second, that they are without or are contrary to statutory authority. We shall discuss these grounds in reversed order. Prosecutors do not deny that the power to license businesses generally is lodged with the municipality. Their contention is that the prima facie right of the city is superseded by the imposition of state licenses upon the same business function.
In the year from June 1, 1946, to May 31, 1947, in the City of East Orange, there were twenty-one licensed open lot enterprises of the kind here considered. The number of sales by the several licensees is variable. One dealer testified that he sold about 400 cars during the year. Others refused to say. The bulk of the sales occur during the ‘season’-April, May, June and part of July. It is obvious that there must be much activity during certain periods and on certain days. The fire hazard, the theft hazard, the protection of pedestrians from promiscuous driving of cars from any point across the sidewalk, the danger to passing traffic of promiscuous entrance and exit of cars, the sanitary hazard where no toilets are maintained, the general confusion of such a business when not supervised and restricted serve to present a fit, almost a necessary, subject for the exercise of a degree of municipal control and an appropriate one for imposing a fee which is commensurate with the occasion for additional municipal expenses.
The general authority of a municipality to license and regulate businesses by ordinance and to impose fees thereon for revenue is contained in R.S. 40:52-1 and 2 N.J.S.A. The statute contains a provision, however, that nothing therein shall be construed to authorize or empower a municipality to license or regulate any person holding a license or certificate issued by any department, board, commission or other agency of the state; and prosecutors contend that the last mentioned provision nullifies the ordinance power of the defendant municipality for the reason that prosecutors hold two sets of state licenses or certificates, one under R.S. 39:10-1 et seq., N.J.S.A., and the other under R.S. 39:3-18, N.J.S.A.
The first of those statutes, R.S. 39:10-1 et seq., N.J.S.A., provides in section 19 that no person shall engage in the business of buying, selling or dealing in motor vehicles in this state unless he is authorized to do so and that the licensing shall be exercised by the Commissioner of Motor Vehicles. Formerly the fee was $10 and now, by the amendment of ch. 136, P.L.1946, N.J.S.A. 39:10-19, it is $100; but the fee is paid only on the initial issuing of the license and not on the issuing of the annual renewal. The purpose of the statute is stated in section three thereof, R.S. 39:10-3, N.J.S.A., as follows: ‘This chapter shall be so interpreted and construed as to effectuate its general purpose to regulate and control titles to, and possession of, all motor vehicles in this state, so as to prevent the sale, purchase, disposal, possession, use or operation of stolen motor vehicles, or motor vehicles with fraudulent titles, within this state.’
It is clear that the licensing authority of the Commission is for...
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...236 A.2d 874 (1967); Coculo v. City of Trenton, 85 N.J.Super. 523, 526-527, 205 A.2d 340 (App.Div.1964); Chaiet v. East Orange, 136 N.J.L. 375, 377, 56 A.2d 599 (Sup.Ct.1947); Coast Cigarettes Sales, Inc. v. Long Branch, 121 N.J.Super. 439, 445-446, 297 A.2d 599 (Law Div.1972); State v. Sto......
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...supra. It excludes municipal licensing of persons holding certain licenses from state agencies, and in Chaiet v. City of East Orange, 136 N.J.L. 375, 377, 56 A.2d 599, 600 (Sup.Ct.1948), Chief Justice Case, in contrasting the state licenses with municipal licenses under the act, noted that ......
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