Coast Cigarettes Sales, Inc. v. Mayor and City Council of City of Long Branch

• Decision Date: 29 November 1972
• Citation: 121 N.J.Super. 439,297 A.2d 599
• Parties: COAST CIGARETTES SALES, INC. and Majestic Cigarettes Sales, Inc., Plaintiffs, v. The MAYOR AND CITY COUNCIL OF the CITY OF LONG BRANCH et al., Defendants. COAST CIGARETTES SALES, INC. and Majestic Cigarettes Sales, Inc., Plaintiffs, v. The MAYOR AND TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MIDDLETOWN et al., Defendants.
• Court: New Jersey Superior Court

Page 439

121 N.J.Super. 439

297 A.2d 599

COAST CIGARETTES SALES, INC. and Majestic Cigarettes Sales, Inc., Plaintiffs, v. The MAYOR AND CITY COUNCIL OF the CITY OF LONG BRANCH et

al., Defendants.

COAST CIGARETTES SALES, INC. and Majestic Cigarettes Sales, Inc., Plaintiffs, v. The MAYOR AND TOWNSHIP COMMITTEE OF THE TOWNSHIP OF

MIDDLETOWN et al., Defendants.

Superior Court of New Jersey Law Division.

Argued Nov. 29, 1972.

Decided Nov. 29, 1972.

Peter W. Kenny, Red Bank, for plaintiffs (Reussille, Cornwell, Mausner p Carotenuto, Red Bank, attorneys).

Robert L. Mauro, Long Branch, for defendants, The Mayor and City Council of City of Long Branch, The City Clerk of City of Long Branch, Chief of Police of City of Long Branch and The Supervisor of Licenses of City of Long Branch.

John H. Deppeler, III, Toms River for defendants, The Mayor and Township Committee of Township of Middletown, The Township Clerk of Township of Middletown and Chief of Police of Township of Middletown (Peter P. Frunzi, Jr., Middletown, attorney).

LANE, J.S.C.

These actions in lieu of prerogative writs challenging the validity of defendants' ordinances requiring licensing and a license fee for plaintiffs' cigarette vending machines are before the court on final hearing.

The issues set forth in the pretrial order are:

(1) Are the ordinances invalid on the ground that the field has been preempted by the Cigarette Tax Act, N.J.S.A. 54:40A--1, et seq?

(2) Is the charge of five dollars for each vending machine confiscatory?

Plaintiffs are owners and distributors of cigarette vending machines. Coast Cigarettes Sales, Inc. has 26 machines in Long Branch and 15 in Middletown. Majestic Cigarettes Sales, Inc. has 41 machines in Long Branch and 67 machines in Middletown. Each plaintiff is required to pay to the State of New Jersey $5.00 per machine for a retail dealer's certificate for each machine. In addition, Coast is required to obtain an annual wholesale dealer's license at a fee of $250, while Majestic pays $350.00 annually for a distributor's license. N.J.S.A. 54:40A--4.

Plaintiffs attack portions of Art. III 'Vending Machines' of the Revised Ordinances of the Township of Middletown as amended and supplemented, which provides in pertinent part:

§ 8.29 License required.

It shall not be lawful within the limits of the Township of Middletown for any person to operate any amusement, vending, novelty or other machine unless such person shall obtain a license for such machine and pay the license therefor as hereinafter mentioned and set forth.

§ 8.30 License fees.

The license fee for such amusement, vending, novelty or other kind of machine shall be as follows:

For all large music box machines the sum of $25.00

For all pin ball machines the sum of $25.00

For all machines where the coin is deposited in order to operate the same is $0.01 (one), the sum of $2.00

For all other machines the sum of $5.00.

Plaintiffs also attack portions of Chapter VII 'Mercantile Licenses' of the Revised General Ordinances of the City of Long Branch, which provides in pertinent part:

7--2.1(a) It shall be unlawful for any person to commence or carry on any profession, vocation, trade, business, calling or occupation specified in this section without first having obtained a license from the city to do so, or without complying with any and all provisions concerning the same contained in this section, or in any other ordinance adopted by the city.

7--2.8(d) Schedule of fees

Automatic cigarette vending machines, five ($5.00) dollars.

Plaintiffs demand judgment declaring that the licensing and fee requirements of these two ordinances are confiscatory and that defendants in imposing them have legislated in an area pre-empted by the Cigarette Tax Act, N.J.S.A. 54:40A--1, et seq. under which plaintiffs have already received licenses and paid fees for their vending machines.

Plaintiffs argue that the licensing and fee provisions of the two ordinances are invalid as an attempt at municipal regulation in an area pre-empted by the State in its adoption of the Cigarette Tax Act, N.J.S.A. 54:40A--1, et seq.

Municipalities have no powers other than those delegated to them by the Legislature and by the State Constitution. Ringlieb v. Tp. of Parsippany-Troy Hills, 59 N.J. 348, 351, 283 A.2d 97 (1971); Wagner v. Newark, 24 N.J. 467, 474, 132 A.2d 794 (1957). N.J.S.A. 40:52--1, et seq., grants to a municipal governing body the power to require licenses for certain broad categories of activity. N.J.S.A. 40:48--2 is a sweeping grant of legislative power to the municipality:

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.

However, there is an implied limitation upon broad grants of power to local municipalities. Such powers relate to matters of local concern which may be determined to be necessary and proper for the good and welfare of local inhabitants. They do not extend to matters involving state policy or in the realm of affairs of general public interest and applicability. The needs of such matters inherently in need of uniform treatment do not vary locally and municipal regulation thereof would not be useful and might, by diverse treatment, cause substantial harm. Summer v. Township of Teaneck, 53 N.J. 548, 552--553, 251 A.2d 761 (1969); In re Public Service Electric and Gas Co., 35 N.J. 358, 370--371, 173 A.2d 233 (1961); Wagner v. Newark, Supra, 24 N.J. at 478, 132 A.2d 794.

Assuming that a particular matter is not 'inherently in need of uniform treatment,' a municipality may be precluded from regulating a particular matter, which it otherwise could, because the Legislature has pre-empted the field. 'Attached to every municipal ordinance there is an implied condition that it must yield to the predominant power of the State.' Ringlieb v. Tp. of Parsippany--Troy Hills, Supra, 59 N.J. at 352, 283 A.2d at 99; Wagner v. Newark, Supra, 24 N.J. at 480, 132 A.2d at 801. Absent an express exclusion from the field by the State the question of preemption must be determined by ascertaining the legislative intention on the facts of each case. State v. Ulesky, 54 N.J. 26, 29, 252 A.2d 720 (1969). See Ringlieb v. Tp. of Parsippany-Troy Hills, Supra, 59 N.J. at 348, 283 A.2d 97.

N.J.Const., Article IV, Section VII, paragraph 11 establishes a presumption of validity of ordinances enacted by municipalities. This requires a liberal construction of municipal ordinances, and therefore a finding of pre-emption must be clear. Kennedy v. City of Newark, 29 N.J. 178, 187, 148 A.2d 473 (1959).

To prevail on a claim of preemption, a plaintiff may show that there exists an unresolvable conflict between the ordinance and the statute. Summer v. Township of Teaneck, Supra, 53 N.J. at 554, 251 A.2d 761; Chester Tp. v. Panicucci, 116 N.J.Super. 229, 234, 281 A.2d 811 (App.Div.1971). Alternatively, a plaintiff can show pre-emption though no conflict exists by demonstrating an intent on the part of the Legislature to completely occupy the area being controlled to the exclusion of the municipalities. Summer v. Teaneck, Supra, 53 N.J. at 554, 251 A.2d 761; State v. Ulesky, Supra, 54 N.J. at 29, 252 A.2d 720; Chester Tp. v. Panicucci, Supra, 116 N.J.Super. at 234, 281 A.2d 811. Absent a showing of an intent to totally pre-empt, a municipality pursuant to its delegated powers can deal with specific local problems by expanding control in that area so long as there is no conflict with the legislative proscription. Fred v. Mayor and Council, Old Tappan Borough, 10 N.J. 515, 521--522, 92 A.2d 473 (1952); Chester Tp. v. Panicucci, Supra, 116 N.J.Super. at 235, 281 A.2d 811; Kligman v. Lautman, 98 N.J.Super. 344, 355, 237 A.2d 483 (App.Div.1967), aff'd 53 N.J. 517, 251 A.2d 745 (1969). Even if an ordinance on its face not in conflict could conflict with a particular statutory scheme in certain applications, the ordinance is not to be declared invalid absent any intent to pre-empt the total field by the Legislature. Kennedy v. City of Newark, Supra, 29 N.J. at 187, 148 A.2d 473; Sayreville v. Pennsylvania R.R. Co., 26 N.J. 197, 200, 139 A.2d 97, appeal dismissed 358 U.S. 44, 79 S.Ct. 43, 3 L.Ed.2d 45 (1958); Chester Tp. v. Panicucci, Supra, 116 N.J.Super. at 235, 281 A.2d 811; N.J.S.A. 54:40A--3 provides:

After the effective date of this act, no person shall engage in, or conduct the business of manufacturing, purchasing, selling, consigning or distributing cigarettes in this State, nor shall any person acquire unstamped cigarettes for consumption, storage or use in this State without having first obtained the appropriate license for that purpose as prescribed by this act.

N.J.S.A. 54:40A--4 provides in detail for the issuance of licenses for distributors, manufacturers, manufacturers' representatives, wholesale dealers, retail dealers, consumers and vending machines and fixes the fee therefor.

N.J.S.A. 54:40A--6 provides:

Any license required by this act shall be in addition to any and all other licenses which may be required by law.

Superficially these provisions which require state licensing but do not prohibit licensing requirements under other laws might suggest that municipal licenses for vending machines may be required in conjunction with state licenses. However, a court must not be guided by a single sentence or member of a sentence but must look to the provisions of the whole act and its object and policy, as well as to statutes In pari materia. Brewer v. Porch, 53 N.J. 167, 174, 249 A.2d 388 (1969).

The Cigarette Tax Act (N.J.S.A....