Edwards v. Mayor

• Decision Date: 30 March 1949
• Docket Number: No. A-42.,A-42.
• Citation: 65 A.2d 78
• Parties: EDWARDS v. MAYOR AND COUNCIL OF BOROUGH OF MOONACHIE.
• Court: New Jersey Superior Court

65 A.2d 78

EDWARDS

v.MAYOR AND COUNCIL OF BOROUGH OF MOONACHIE.

No. A-42.

Superior Court of New Jersey, Appellate Division, Part B.

March 30, 1949.

Certiorari by Donna Edwards against the Mayor and Council of Borough of Moonachie to review an ordinance of the borough, providing for the licensing and regulation of trailer camps and camp sites.

Ordinance set aside.

Before McGEEHAN, Sen ior Judge and DONGES and COLIE, JJ.

Leo Rosenblum, of Jersey City, and Sebastian Gaeta, of Wycoff, for prosecutor.

Ralph W. Chandless and Chandless, Weller, Kramer & Frank, all of Hackensack, for respondent.

McGEEHAN, Senior Judge.

A writ of certiorari was allowed by the former Supreme Court on April 2, 1948, 137 N.J.L. 46, 57 A.2d 927, to review an ordinance of the Borough of Moonachie entitled, ‘An ordinance to license and regulate trailer camps and camp sites within the Borough of Moonachie and to provide penalties for the violation thereof.’ The ordinance was adopted September 17, 1947, and amended December 11, 1947.

It is conceded that the ordinance imposes a license fee for revenue; that the power of the municipality to impose a license fee for revenue upon a business or occupation depends upon a grant of such power by the legislature; and that the only statutes granting such power are R.S. 40:52-1 and 40:52-2, N.J.S.A. We examine the law as it existed at the times in question.

R.S. 40:52-2, N.J.S.A., authorized the governing body of the municipality to fix the fees for all licenses granted under R.S. 40:52-1, N.J.S.A., and provided that such fees ‘may be imposed for revenue’. R.S. 40:52-1, N.J.S.A., provided: ‘The governing body may make, amend, repeal and enforce ordinances to license and regulate,’ followed by twelve subsections, each containing descriptions of businesses and occupations subject to such licensing and regulation. The municipality claims that the power to enact this ordinance was granted by subsection (a), by subsection (d) and by subsection (g) of R.S. 40:52-1, N.J.S.A. That neither subsection (a) nor subsection (d) granted such power, is so obvious as not to require discussion.

Subsection (g), in pertinent part, provided: ‘Lumber and coal yards, stores for the sale of meats, groceries and provisions, dry goods and merchandise, and goods and chattels of every kind, And all other kinds of business conducted in the municipality other than herein mentioned, and the places and premises in or at which the business is conducted and carried on; * * *.’ (Italics ours.)

The municipality argues that the grant of power to enact this ordinance is contained in the language of subsection (g) italicized above, and cites Independent Warehouses, Inc., v. Scheele, Err. & App.1946, 134 N.J.L. 133, 45 A.2d 703; Prinz v. Paramus, Sup.Ct.1938, 120 N.J.L. 72, 198 A. 284, affirmed on opinion below Err. & App.1939, 121 N.J.L. 585, 3 A.2d 584, and Becker v. Pickersgill, Sup.Ct.1928, 105 N.J.L. 51, 143 A. 859, as holding that authority is thereby granted to license for revenue all businesses not specifically mentioned in the rest of the section. The prosecutor argues that the language italicized above is a grant limited to businesses of the same class or general character as the named or described businesses preceding, under the doctrine of ejusdem generis, and that this construction effectuates the legislative intention.

R.S. 40:52-1, N.J.S.A. had its origin in P.L.1917, c. 97 and c. 152. The language of subsection (g), quoted above, was added by amendment in P.L.1918, c. 252, to the long list of businesses then subject to license for revenue. The fact that the legislature chose to add specifically named or described businesses together with the italicized general language, instead of simply using one compendious expression to include all businesses and occupations, strongly suggests that the general language was used in the light of the ejusdem generis doctrine. But stronger evidence of the legislative intent is the fact that, in the very same enactment of 1918, another subsection, namely, subsection (c), was also amended so as to add ‘automobile garages' to the other businesses mentioned therein. Since 1918 the section has been further amended, from time to time, to include other businesses as the need appeared. Thus, present subsection (b) was added by P.L.1920, c. 89; present subsection (i) by P.L.1926, c. 113; ‘transient merchants' by P.L.1927, c. 280; ‘motor vehicle junk dealers' and ‘dealers in second-hand motor vehicles and parts thereof’ by ...