Dickinson v. Inhabitants of City of Plainfield

• Citation: 184 A. 195
• Decision Date: 02 April 1936
• Docket Number: No. 22.,22.
• Parties: DICKINSON et al. v. INHABITANTS OF CITY OF PLAINFIELD et al.
• Court: United States State Supreme Court (New Jersey)

184 A. 195

DICKINSON et al.

v. INHABITANTS OF CITY OF PLAINFIELD et al.

No. 22.

Court of Errors and Appeals of New Jersey.

April 2, 1936.

Appeal from Supreme Court.

Proceeding by John T. Dickinson and others against the Inhabitants of the City of Plainfield and others, for a writ of certiorari From a judgment of the Supreme Court (176 A. 716, 13 N.J.Misc. 260), dismissing the writ of certiorari, prosecutors appeal.

Affirmed.

Andrew L. McDonough, of Plainfield (Merritt Lane, of Newark, of counsel), for appellants.

Spaulding Frazer, of Newark, for respondents.

PERSKIE, Justice.

This appeal brings up for a review a judgment of the Supreme Court moulded on the opinion of Mr. Justice Case who, pursuant to statute, sat alone for the court. The opinion is reported in 176 A. 716, 718, 13 N. J. Misc. 260.

The writ of certiorari brought up for review an order of the board of adjustment of the city of Plainfield, N. J., revoking certain permits (building and gasoline tank and pumps), granted to the prosecutors.

Mr. Justice Case, after a thorough and careful consideration of all the reasons assigned and argued in the cause, determined that "the action of the adjustment board in setting aside the inspector's permit and in denying permission on its own authority was valid." Accordingly he dismissed the writ. We agree with the reasoning and result reached by him.

Under these circumstances, we would, in the usual and orderly process governing our determination of causes, stop at this point. But, it is now argued for prosecutors, and for the first time in this cause, that the limitation put on the use of their property, both by the board of adjustment and the Supreme Court, is an invasion of, if not the due process clause of our own State Constitution, the due process and equal protection of the law provisions of the Fourteenth Amendment to the Federal Constitution.

Our answer to this argument is that this is not properly before us. We search the record in vain to find where these points were argued below. It will be observed that Mr. Justice Case specifically stated the position taken by prosecutors on the argument before him. He said (176 A. 716, 718, 13 N.J.Misc. 260, at page 264), "Prosecutors do not dispute the propriety of the ordinance provision; they simply try to put themselves outside its purview." And lest there be some misunderstanding because the record before him "was not technically perfect," he further detailed the points argued for prosecutors. He said (176 A. 716, 718, 13 N. J. Misc. 260, at page 265): "It will be observed that the points argued by prosecutors are made to rest upon—and in this numerical order—(1) a right said to have been acquired by an earlier, nonconforming use, (2) a right said to have vested on the issuing of the building inspector's permit and the act of the prosecutors in proceeding with the work in dependence thereon, and (3) a faulty form of appeal. The form and substance of the ordinance are not attacked. Arbitrary and unreasonable application of the ordinance provision as against neighborhood conditions is not charged."

It is clear that no constitutional questions, state or federal, were argued below. This is not seriously controverted. But again, it is...