Librizzi v. Plunkett

• Decision Date: 22 November 1940
• Citation: 16 A.2d 280
• Parties: LIBRIZZI v. PLUNKETT et al.
• Court: New Jersey Supreme Court

16 A.2d 280

LIBRIZZI

v. PLUNKETT et al.

Supreme Court of New Jersey.

Nov. 22, 1940.

Mandamus proceeding by Dewey Librizzi against James J. Plunkett, license commissioner, and others to compel the issuance of licenses under a local ordinance.

Peremptory mandamus granted.

Before HEHER, J., at chambers, pursuant to R.S.1937, 2:83-1 et seq., N.J.S.A. 2:83-1 et seq.

Fast & Fast, of Newark (Louis A. Fast, of Newark, of counsel), for relator.

James F. X. O'Brien, of Newark (Simon Englander, of Newark, of counsel), for respondents.

HEHER, Justice.

Relator applied to the Director of Public Safety of the respondent municipality for a "Wrecker Owner's License" and a "Wrecker Operator's License" under a local ordinance entitled "An Ordinance Concerning the Regulation of Vehicles Commonly Known as 'Wreckers' and the Licensing of the Owners and Drivers Thereof," adopted September 12, 1934. The applications were denied on the ground that the applicant had a "criminal record," although it had also been taken into consideration that he had committed a violation of the ordinance during the preceding year. He had held such licenses, issued annually, for the two prior years. The infraction of the ordinance does not seem, however, to have been a motivating circumstance; it was the "criminal record" over a period of years that induced the action.

Relator's vehicles were registered with the Commissioner of Motor Vehicles in accordance with the provisions of R.S. 1937, 39:3-4 et seq., N.J.S.A. 39:3-4 et seq.; and the first point made is that the requirement of "additional licenses from the respondents" runs counter to the provisions of section 39:3-42. The ordinance did not receive the approval of the Commissioner of Motor Vehicles, nor was it submitted to him for such action; and it is said that it is therefore lacking in validity, since it "regulates traffic or traffic conditions," and thus is of the class requiring such approbation under section 39:4-8—citing Eveler v. Atlantic City, 91 N.J.L. 135, 102 A. 898, 899. The point is without substance.

This statutory provision is applicable only to ordinances designed to regulate traffic on public highways. It has its genesis in Chapter 148 of the Laws of 1930, as amended by Chapter 129 of the Laws of 1931, whereby there came into being a traffic commission whose powers and duties have since, by Chapter 179 of the Laws of 1932, been transferred to the Commissioner of Motor Vehicles. Pamph.L.1930, p. 564, Pamph.L.1931, p. 220, Pamph.L.1932, p. 306, R.S.1937, 39:4-2, N.J.S.A. 39:4-2. The standard set down for the guidance of the Commissioner in the exercise of the power is "the interest of safety and the expedition of traffic on the public highways." As declared in Eveler v. Atlantic City, supra the legislative aim was to promote "uniformity" in the regulation of "traffic throughout the state."

Here, the ordinance is confined to the regulation of a business in the exercise of the police power. Evidently, this business is of a character peculiarly subject to police regulation. The object of the enactment is to advance the public interest by (a) the provision of adequate service of this class at reasonable rates; (b) the maintenance of such vehicles in a safe and sanitary condition; (c) the protection of the public through indemnity insurance, and otherwise; (d) safety in operation; and (e) the recording in a specified manner of all the circumstances attending the handling of a disabled vehicle, and the licensee's employment for that purpose, obviously a regulation of first rank as regards the public safety, particularly in the enforcement of the Crimes Act and kindred statutes, and the protection of persons and property. Manifestly, these considerations do not govern the Commissioner of Motor Vehicles in the exercise of the power conferred by section 39:4-8, supra. That authority is limited to the regulation of traffic, qua traffic, on public highways.

This ordinance, so viewed, was not ultra vires the municipality. It constituted the exercise of a governmental function comprehended by the police power. This plenary sovereign power has been delegated to the municipalities in broad, general terms. R.S.1937, 40:48-1, 40:48-2, N.J.S. A. 40:48-1, 40:48-2. The safeguarding of persons and property is a primary police function of such municipal subdivisions; so also the detection of crime and the prosecution of the perpetrators.

The next insistence is that the ordinance does not prescribe "a moral test", and so the rejection of the application on the ground of the "applicant's criminal record," there having been compliance with all the provisions of the regulation, constituted arbitrary action.

The regulation does not lay down a definite and specific disqualification as respects the prior commission of crime. The applicant for an "owner's" license is required to set forth certain data not here pertinent, and "any other information which" the Director of Public Safety "shall deem necessary and proper for the full protection of the public's interest." One who seeks an operator's license is under a duty to certify in writing as to whether he has ever been "convicted of a felony or misdemeanor or a violation of" the ordinance, and "whether he has been previously licensed as a driver or chauffeur and if so whether his license has ever been revoked in the" municipality "or elsewhere and for what cause," and to affix to "said statement, which shall be under oath, * * * the endorsement of four reputable citizens of the" municipality "and of the Supervisor of the Traffic Bureau of the Police Department." But that in itself is not sufficient in this behalf. Would one conviction of crime, regardless of the time and the nature of the offense, compel the rejection of either application? Obviously not, for the ordinance does not say so. What, then, is the standard applying alike to all who may invoke the regulation? There is none.

It is elementary that an ordinance which vests in local administrative officers an uncontrolled discretionary authority to grant such business license—it is not of the class of businesses that may be forbidden altogether—to one and to refuse it to another under like circumstances contravenes fundamental law. Such is violative of the plainest principles of justice. It is a power that the municipal governing body itself does not possess. Vide Keavey v. Randall, 122 A. 379, 1 N.J.Misc. 311; South Orange v. Heller, 92 N.J.Eq. 505, 113 A. 697. It is requisite that the regulation establish the terms and conditions upon which the right to the license is made to depend, and thus set down a general rule of action or standard of conduct...