Gilbert v. Town of Irvington

• Decision Date: 23 January 1956
• Docket Number: No. A--67,A--67
• Citation: 120 A.2d 114,20 N.J. 432
• Parties: George GILBERT and Sentinel Sales Corporation, a corporation of New Jersey, Plaintiffs-Appellants, v. TOWN OF IRVINGTON, a municipal corporation of New Jersey, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 432

20 N.J. 432

120 A.2d 114

George GILBERT and Sentinel Sales Corporation, a corporation of New Jersey, Plaintiffs-Appellants, v. TOWN OF IRVINGTON, a municipal corporation of New Jersey Defendant-Respondent.

No. A--67.

Supreme Court of New Jersey.

Argued Jan. 3, 1956.

Decided Jan. 23, 1956.

Ira D. Dorian, Cranford, for appellants (Howard A. Goldberger, Newark, attorney).

John J. Gaffey, Newark, for respondent.

The opinion of the court was delivered by

WACHENFELD, J.

This is an action in lieu of prerogative writ contesting the validity of an ordinance of the Town of Irvington which establishes a license fee of $100 per year for each coin-operated milk vending machine operated within the town limits.

The judgment below directed the entry of judgment in favor of the defendant, and we granted certification prior to argument in the Appellate Division.

The plaintiffs are engaged in the retail sale and distribution of milk to the public through coin-operated milk vending machines, and during August and September 1954 they applied for and were issued licenses by the Irvington Department of Health permitting them to sell and dispense milk from machines.

The fee charged at that time for the licenses was $2.50 per machine, pursuant to an ordinance applicable to all stores or vehicles selling milk and milk products.

In March 1955 Irvington enacted an ordinance specifically regulating the distribution of milk through coin-operated vending machines. The ordinance provides that before a machine may be installed, application must be made to the License Bureau of the Town of Irvington, whereupon approval must be given by the Health Department, the Chief of Police, the Fire Department and the Building Superintendent.

Section 6 of the ordinance imposes a license fee of $100 for each machine applied for. This is the section under attack in these proceedings.

Prior to the adoption of the 1955 ordinance, the plaintiffs had invested substantial sums in the purchase and installation of milk vending machines under the licenses which had been issued to them the year before. They also entered into rental agreements with the property owners where the machines were located.

The economic impact of the ordinance upon the vending machines in question results in a levy of almost 25% Of the profits derived from the machines, and little else need encumber the record as to the character and details of the other financial equations and transactions except to say that in some respects the record is far from complete.

The record shows each application for a license for a milk vending machine was processed by the Fire Department, the Police Department and the Health Department and that the work of the various departments consumed about three days per year for each machine.

Although this was testified to, admittedly no extra policemen were added to the payroll as a result of the presence or operation of the machines. The Police Department made regular inspections of the contrivances as part of its patrol duty, while the Fire Department only made an inspection of the machines when they were first installed to ascertain whether they constituted a fire hazard.

The Sanitation Department inspected the machines once a week and purchased a quart of milk from each to ascertain its quality and to determine other facts in reference to the sale of the product.

It appears there were over 200 stores selling milk in the Town of Irvington and the town did not hire any additional help as a result of the installation of the milk vending machines.

Although the license fee for these machines was fixed at $100 per machine, the fee for the privilege of selling milk from a store or vehicle remained at the original $2.50.

The plaintiffs contend the license fee unreasonably exceeds the necessary or probable expense of issuing the license and of inspecting and regulating coin-operated milk vending machines and is exorbitant, oppressive and confiscatory. It is also insisted the ordinance imposes an arbitrary and discriminatory classification in placing upon coin-operated milk vending machines a fee greatly in excess of that laid upon others in comparable circumstances and is in reality designed primarily to bar the use of the coin-operated milk vending machines in competition with local merchants.

We, of course, start with the basic proposition that the license fee required by the duly enacted ordinance of the Town of Irvington is entitled to a presumption of reasonableness and the burden of proving otherwise rests with the plaintiffs. Bellington v. East Windsor Twp., 17 N.J. 558, 568--569, 112 A.2d 268 (1955).

The power of a municipality to regulate or license emanates from R.S. 40:52--1 and 40:52--2, N.J.S.A., and the right of a municipality so to do and to exact fees for revenue is dependent upon and limited by the power so conferred.

A municipal corporation is a government of enumerated powers acting by a delegated authority, and it has no inherent jurisdiction to make laws or adopt regulations of government. N.J. Good Humor, Inc., v. Board of Com'rs of Bradley Beach, 124 N.J.L. 162, 11 A.2d 113 (E. & A. 1940); City Affairs Committee v. Board of Com'rs of Jersey City, 134 N.J.L. 180, 46 A.2d 425 (E. & A. 1946); Edwards v. Mayor, etc., of Borough of Moonachie, 3 N.J. 17, 68 A.2d 744 (1949).

In salomon v. Jersey City, 12 N.J. 379 at page 390, 97 A.2d 405, at page 411 (1953), an ordinance imposed solely for revenue on all businesses operating within the city was nullified, the court concluding, through Justice Jacobs:

'In the light of all of the foregoing we consider that the primary and overriding purpose of the Legislature in enacting R.S. 40:52--1, N.J.S.A. and R.S. 40:52--2, N.J.S.A., was to authorize municipalities to license and...