Johnson v. Mayor

• Decision Date: 28 February 1898
• Citation: 39 A. 693,60 N.J.L. 427
• Parties: JOHNSON v. MAYOR, ETC., OF BOROUGH OF ASBURY PARK.
• Court: New Jersey Supreme Court

39 A. 693

60 N.J.L. 427

JOHNSON

v. MAYOR, ETC., OF BOROUGH OF ASBURY PARK.

Court of Errors and Appeals of New Jersey.

Feb. 28, 1898.

(Syllabus by the Court.)

Error to supreme court.

Action by George C. Johnson against the mayor and council of the borough of Asbury Park. A judgment was rendered, and plaintiff brings error. Affirmed.

Allan H. Strong, Claude C. Guerin, and R. T. & W. B. Stout, for plaintiff in error.

Hawkins & Durand, for defendant in error.

MAGIE, C. J. By this writ of error we are called upon to review a judgment of the supreme court (33 Atl. 850) affirming the validity of an ordinance of the borough of Asbury Park, adopted under the provisions of the act entitled "An act to amend an act entitled 'An act respecting licenses in the boroughs of this state,' approved May 1, 1894," which amendatory act was approved March 22, 1895. Laws 1896, p. 490. The provisions of the ordinance and of the act which was claimed to confer power upon the borough to pass it are fully set out in the opinion delivered in the supreme court, and need not be here repeated. The conclusion reached in that court is entirely approved by this court, but it is deemed proper to indicate that such approval does not apply to all the statements of the opinion. The act in question doubtless impliedly amends section 12 of the borough act of April 5, 1878, but it cannot correctly be characterized as only an amendment to that section. If so, it would plainly be open to the objection that it was not applicable to the borough of Asbury Park, which it is said was organized under the borough act of 1891, but probably to an objection which might be fatal to its validity: for the purpose of the act is equally applicable to boroughs formed under the act of 1878, to boroughs formed under other acts, and to boroughs formed under special acts prior to the adoption of the constitutional amendments of 1875. It would be difficult, if not impossible, to find any quality or characteristic of boroughs formed under the act of 1875 which, with reference to such legislation, would differentiate them from other of the boroughs of this state. But the act in question is not thus limited. Its language is unrestricted, and it evidently operates upon all the municipalities called boroughs, in whatever mode their organization has been effected.

The act in question may also be supported against the charge that it lacks constitutional validity because special in its character on other grounds than those stated in the court below. Its purpose is to raise revenue for the municipality by licensing certain trades and occupations when carried on therein. Such a purpose is obviously appropriate to municipalities of a higher grade. It is obviously inappropriate to the lowest grade of municipalities, viz. townships. It is therefore not rendered special because it does not include townships. Municipalities of high grade, such as boroughs, towns, and cities, exhibit different characteristics, which may not distinguish them from each other with respect to the propriety of legislation for revenue from licensing trades and occupations, but which may properly distinguish them with respect to the amount of license fees which they may be empowered to exact, and the amount of penalties they may inflict for failure to take out license. The duty imposed by the constitutional requirement that the legislature shall pass general laws regulating the internal affairs of municipalities cannot be enforced by the courts. We can only interfere with legislation regulating such affairs when it is in manifest opposition to the prohibition against special legislation thereon. When, therefore, the legislature enacted a law appropriately regulating the matter of license in municipalities of the grade of boroughs, and limited to that grade, we should assume that, with respect to municipalities of higher grade, it was of opinion that some other regulation was required, not in respect to the power conferred, but to the mode and details of the execution of the power, for in that regard there is a manifest distinction in the grades of municipalities which would justify a difference in legislation. Whether such legislation has been enacted in respect to the higher grades of municipalities we need not inquire. We could not compel its enactment, and perceive no reason why the constitutional requirement may not be satisfied either by the passage of one general law covering all classes of municipalities or of several co-related laws, adopted and appropriated to different classes, if such classes are properly distinguished from each other.

In the supreme court the act in question was also attacked upon the ground that its title did not sufficiendy express its object to satisfy the constitutional mandate on that subject. The objection is pressed here upon grounds which do not seem to have been presented below. The contention is based upon the well-settled doctrine that a grant of authority to a municipality to license, merely, confers only a power of police regulation, but no power to impose a license fee for revenue....