City of Newark v. Johnson

• Decision Date: 08 November 1961
• Docket Number: Nos. 578,579,s. 578
• Citation: 175 A.2d 500,70 N.J.Super. 381
• Parties: CITY OF NEWARK, Plaintiff-Respondent, v. Edward and Nellie JOHNSON, Defendants-Appellants. CITY OF NEWARK, Plaintiff-Respondent, v. Alphonso SIMMONS, Defendant-Appellant. -Criminal, New Jersey
• Court: New Jersey County Court

Page 381

70 N.J.Super. 381

175 A.2d 500

CITY OF NEWARK, Plaintiff-Respondent, v. Edward and Nellie JOHNSON, Defendants-Appellants.

CITY OF NEWARK, Plaintiff-Respondent, v. Alphonso SIMMONS, Defendant-Appellant.

Nos. 578, 579.

Essex County Court

Law Division-Criminal, New Jersey.

Nov. 8, 1961.

David D. Furman, Atty. Gen. (Eugene T. Urbaniak, Trenton, appearing), for New Jersey State Board of Child Welfare, intervening amicus curiae (Joseph T. Maloney, Trenton, on the brief).

Vincent P. Torppey, Corp. Counsel, Newark (Harry A. Pine, Newark, appearing), for plaintiff-respondent (Joseph A. Ward, Newark, on the brief).

MASUCCI, J.C.C.

This involves appeals from convictions in each of the above cases of violation of section 36.3(2) of the Revised Ordinances of the City of Newark, restricting the use of property within a first residence district to one-family dwellings.

The facts are not in dispute. Admittedly, the buildings in question are within a first residence district, restricted to one-family dwellings. Each of the dwellings is occupied by the defendant or defendants, their respective families, and, in addition thereto, children who are wards of the State Board of Child Welfare and are not related to the defendants by blood, marriage or adoption. The charge is that permitting said ward children to live with said defendants constitutes a violation of said ordinance.

The ordinance includes a definition of the word 'family' as related to 'one family dwellings' referred to in said ordinance, as follows:

'A family is one or more persons who live together in one dwelling unit and maintain a common household and who are related by Blood, marriage or adoption.' (Emphasis supplied.)

The defendants appealed from said convictions, and the State Board of Child Welfare (hereinafter referred to as the intervenor) was given leave to intervene and filed a brief on behalf of the State. The defendants did not file any brief.

The intervenor first contends that it is not aware of any municipal zoning ordinance which expressly states that a foster home, housing children under the agency's supervision, is a single-family dwelling use, and yet its foster children are placed in homes in numerous New Jersey municipalities within residential districts zoned solely for single-family dwellings.

Whether said statement is correct or not is neither relevant nor material. It would have no bearing on the present issues. The court's attention has not been called to any similarity of terms of any of the other zoning ordinances referred to. The failure of any other municipality to enforce its ordinance would not prevent its enforcement by the City of Newark nor is such enforcement barred by any health legislation regulating 'boarding houses' which expressly exempts children of said State Board. One affects health regulations, the other zoning ordinances, each having separate and distinct scopes and purposes and not In pari materia, although some of the purposes may be pertinent in both zoning ordinances generally relating to neighborhood planning and housing and only incidentally to public health, while the other is restricted to the field of public health and related subjects.

It further urges that the city did not intend, by said ordinance, to prohibit foster children from residing with a family in a first residence district, by reason of the history and purpose of single-family use restrictions. The history and purpose of a matter, the subject of legislation, may be considered in construing legislation of doubtful meaning, but not where the express terms thereof do not allow of any doubt. The zoning ordinance here involved by express terms limits the 'family' to those related by blood, marriage or adoption. Any other construction than one adopting the clear and common import of said words and terms, would do violence thereto or would require either excision of the very words of restriction or adding the words to include foster children, all of which would be remaking the legislation, contrary to its clear and express terms, which is not a judicial but a legislative function.

Nor are the cases cited by the State applicable or helpful. These foster children are not excluded under the said ordinance because they are considered boarders, but only because they do not come within the permissible relationship provided therein.

Under its second point, the State contends that said ordinance conflicts with the state statute, N.J.S.A. 30:4C--26. This statute, among other things, provides for the placing of foster children in a 'suitable family home,' which refers to the family unit, not the family housing. In no sense does the act require nor does the welfare of the child require placing the child in a...