Fred v. Mayor & Council of Borough of Old Tappan

• Decision Date: 17 November 1952
• Docket Number: No. A--22,A--22
• Citation: 10 N.J. 515,92 A.2d 473
• Parties: FRED et al. v. MAYOR & COUNCIL OF BOROUGH OF OLD TAPPAN.
• Court: New Jersey Supreme Court

Page 515

10 N.J. 515

92 A.2d 473

FRED et al. v. MAYOR & COUNCIL OF BOROUGH OF OLD TAPPAN.

No. A--22.

Supreme Court of New Jersey.

Argued Oct. 14, 1952.

Decided Nov. 17, 1952.

James A. Major, Hackensack, for appellants (Major & Carlsen, Hackensack, attorneys).

Walter H. Jones, Hackensack, for respondent.

The opinion of the court was delivered by

VANDERBILT, C.J.

The plaintiff landowners instituted this this action in the Law Division of the Superior Court of test the validity of an ordinance of the defendant borough regulating the removal of soil from lands within its confines. From the judgment of that court sustaining the ordinance the plaintiffs took an appeal to the Appellate Division of the Superior Court which we have certified here on our own motion.

Two questions are presented on this appeal: does a municipality have the authority to enact an ordinance regulating the removal of soil, and if so, does the ordinance hereunder attack come within the limits of that authority? We shall address ourselves to these two questions in the order posed.

I.

The defendant contends that the authority to pass such an ordinance is conferred on it by Article IV, Section VII, paragraph 11, of the Constitution of 1947 which provides:

'The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor. The powers of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law.'

It is urged upon us that this clause of the Constitution of 1947, which had no counterpart in its predecessor constitution, introduced a new concept of home rule into the law of this State, being, in effect, a direct grant of the police power to all municipalities. In support of its position the defendant refers us to certain of the proceedings of the Constitutional Convention of 1947, I Convention Proceedings Record, 400--403, 449, 450, 763. We find no merit to this contention of the defendant. The quoted provision of the Constitution on its face does not purport to be a grant of general police powers to all municipalities, its plain language is not susceptible of being so construed, the proceedings of the Constitutional Convention referred to do not indicate that it was so intended, and during the five years since its adoption our courts have never so interpreted it. On the contrary, it is well settled in this State that a municipality has only those powers granted to it by statute, albeit by virtue of the constitutional provision here under discussion those powers are to be liberally construed in favor of the municipality and express grants of power are to be deemed to include 'those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto.' Magnolia Development Co. Inc. v. Coles, 10 N.J. 223, 227, 89 A.2d 664, 666 (1952); State v. Mundet Cork Corp., 8 N.J. 359, 370, 86 A.2d 1 (1952); Borough of Jamesburg v. Hubbs, 6 N.J. 578, 584, 80 A.2d 100 (1951); Edwards v. Mayor, etc., of Borough of Moonachie, 3 N.J. 17, 22, 68 A.2d 744 (1949).

Perhaps suspecting the weakness of its first alleged source of authority, the defendant next points to R.S. 40:48--2, N.J.S.A. as containing the necessary statutory grant of power. It provides:

'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.'

It would appear that this statute is susceptible of two different interpretations: one that since the last clause beginning with the words 'and as may be necessary * * *' is in the conjunctive, it confers no separate and distinct powers upon a municipality, but merely grants in terms powers incidental to those conferred by other statutes; the other that the statute constitutes an express grant of broad governmental and police powers to all municipalities and that the last clause is merely an added grant of incidental powers. This latter view finds considerable support in the cases, R.S. 40:48--2, N.J.S.A., being frequently cited as a source of general municipal police powers, see Public Welfare Pictures Corp. v. Brennan, 100 N.J.Eq. 132, 134, 134 A. 868 (Ch.1926); Wagman v. City of Trenton, 102 N.J.L. 492, 493, 134 A. 115 (Sup.Ct.1926); Crisci v. Board of Commissioners of Raritan, 119 N.J.L. 103, 106--107, 194 A. 445 (Sup.Ct.1937); Prinz v. Borough of Paramus, 120 N.J.L. 72, 73--74, 198 A. 284 (Sup.Ct.1938); Bullock v. Wooding, 123 N.J.L. 176, 178, 8 A.2d 273 (Sup.Ct.1939); N.J. Good Humor v. Board of Com'rs of Bradley Beach, 123 N.J.L. 21, 23, 7 A.2d 824 (Sup.Ct.1939), and in the opinion reversing on other grounds, 124 N.J.L. 162, 165, 11 A.2d 113 (E. & A.1940); Librizzi v. Plunkett, 126 N.J.L. 17, 20--21, 16 A.2d 280 (Sup.Ct.1940); Hunter v. Mayor & Council of Teaneck Twp., 128 N.J.L. 164, 171, 24 A.2d 553 (Sup.Ct.1942); O'Mealia Outdoor Advertising Co. v. Mayor & Council of Borough of Rutherford, 128 N.J.L. 587, 589--590, 27 A.2d 863 (Sup.Ct.1942); Hart v. Teaneck Township, 135 N.J.L. 174, 176, 50 A.2d 856, 169 A.L.R. 973 (E. & A.1947); Kovacs v. Cooper, 135 N.J.L. 584, 587--588, 52 A.2d 806 (E. & A.1947). Cf., dissenting opinion in City Affairs, etc., Jersey City v. Board of Com'rs of Jersey City, 132 N.J.L. 552, 564, 41 A.2d 798 (Sup.Ct.1945), affirmed 134 N.J.L. 180, 182, 46 A.2d 425 (E. & A.1946). This interpretation of R.S. 40:48--2, N.J.S.A., as an express grant of general police powers to municipalities has been made impregnable by the continued legislative acquiescence therein, by the mandate of Article IV, Section VII, paragraph 11 of the Constitution of 1947 that acts concerning municipalities be liberally construed, and by the adherence thereto of the more recent judicial decisions, Ricca v. Board of Commissioners, 1 N.J.Super. 139, 142--143, 62 A.2d 746 (App.Div. 1948); Edwards v. Borough of Moonachie, 3 N.J.Super. 10, 14, 65 A.2d 78 (App.Div.1949), reversed 3 N.J. 17, 68 A.2d 744 (1949); Michaels v. Twp. Committee of the Twp. of Pemberton, 3 N.J.Super. 523, 527, 67 A.2d 324 (Law.Div.1949); City of Newark v. Charles Realty Co., 9 N.J.Super. 442, 457, 74 A.2d 630 (Cty.Ct.1950). If more be needed, we refer to the recent decision in State v. Mundet Cork Corp., supra, 8 N.J. 359, 369, 86 A.2d 1, 6 (1952), wherein we held that the enactment of an air pollution ordinance was 'a function of the police power conferred on municipalities by R.S. 40:48--2, N.J.S.A. (originally enacted in 1917) for the protection of the welfare of their residents.'

Plainly, therefore, R.S. 40:48--2, N.J.S.A. must be considered as an express grant of broad general police powers to municipalities. Such an interpretation of this statute, it is to be noted, is in keeping with other broad grants of powers to municipalities, as for example, R.S. 40:72--3, N.J.S.A. (powers of municipalities having commission form of government); R.S. 40:116--8, N.J.S.A. (powers of municipalities governed by boards of commissioners) and R.S. 40:55--32, N.J.S.A. (zoning powers). As the law now stands any municipality, in addition to any powers elsewhere more specifically granted, has authority by virtue of R.S. 40:48--2, N.J.S.A. to take such action '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 general welfare of the municipality and its inhabitants,' subject only to the limitation that such action not be prohibited by or inconsistent with the Constitution or the other statutes.

There can be little question but that this broad grant of police powers to a municipality encompasses the authority to enact an ordinance regulating the removal of soil. Both common knowledge and the evidence adduced before the trial court indicate that such an ordinance not only may be desirable but necessary for the protection of property and the preservation of the public health and welfare of a municipality. In the defendant borough the removal of soil has for years constituted a serious problem. At least four property owners have stripped their lands and sold the soil leaving pits of considerable depth. Land thus denuded and deformed casts a blight on all the surrounding area: water collects and affords breeding places for mosquitoes, drainage and erosion problems arise, normal vegetation cannot grow but noxious weeds thrive. In short, the land itself is not only rendered useless for all normal uses, but the value of other lands in the vicinity is substantially reduced and the residents of the area generally are subjected to unhealthy, annoying and unsightly conditions.

The suggestion is made that the Legislature has provided other more specific methods of dealing with the problems arising from the removal of soil and that, therefore, an ordinance regulating such removal is inconsistent with...