O'Mealia Outdoor Advertising Co. v. Mayor and Council of Borough of Rutherford, 227.

Decision Date19 August 1942
Docket NumberNo. 227.,227.
Citation27 A.2d 863,128 N.J.L. 587
PartiesO'MEALIA OUTDOOR ADVERTISING CO. et al. v. MAYOR AND COUNCIL OF BOROUGH OF RUTHERFORD.
CourtNew Jersey Supreme Court

Certiorari proceedings by the O'Mealia Outdoor Advertising Company and others against the Mayor and Council of the Borough of Rutherford to have an ordinance of the Borough of Rutherford regulating outdoor advertising declared invalid.

Ordinance set aside.

January term, 1942, before PARKER, DONGES, and COLIE, JJ.

Greenburg, Wilensky & Feinberg, of Passaic, for prosecutors.

Oliver T. Somerville, of Rutherford, for defendants.

DONGES, Justice.

The certiorari brings into this court an ordinance of the Borough of Rutherford, in the County of Bergen, approved September 2nd, 1941, the enacting part of which reads as follows:

"1. No person, firm or corporation shall erect or maintain any billboard or other structure for outdoor advertising for profit through rentals or other compensation to be received for the erection, use or maintenance of such billboards or other structures for the display of advertising matter within the Borough of Rutherford.

"2. No person, firm or corporation not engaged in the business of outdoor advertising for profit shall erect or maintain any billboard or other structure for the outdoor display of advertising matter except upon the premises where the business advertising is carried on, and then only after compliance with the laws of the State of New Jersey concerning billboard advertising. Provided, however, this paragraph shall not apply to signs on real estate exclusively to advertise the same for sale or to let or to signs of civic organizations, service clubs or veterans' organizations."

The stipulation of facts recites:

"8. The prosecutors are engaged in the general advertising business and have been so engaged for a long period of years.

"9. The prosecutors maintain and operate a large number of outdoor advertising billboard and posting structures generally throughout the northern part of the State of New Jersey, and also within the borough limits of the respondent."

"15. The prosecutors' outdoor advertising billboard and poster structures are erected and maintained wholly on private property and do not abut or over-hang any public street or public thoroughfare.

"16. The prosecutor companies have generally erected structures upon leased lands for the purpose of selling space pursuant to written contracts with national and local organizations, companies and concerns. The prosecutors maintain twenty (20) such billboards within the borough Limits of the Borough of Rutherford at the present time, and have various contracts for various terms as yet unexpired for their use.

"17. The prosecutors, prior to September 2nd, 1941, leased lands and structures situate in business and industrial areas from the owners thereof for outdoor advertising purposes, and these leases are yet unexpired and will run for many years in the future. On most of these lands and structures, the prosecutors have already erected billboards, and on some of them, prosecutors have not as yet erected billboards thereon."

It is further stipulated that prosecutors' billboards are erected and maintained in accordance with the provisions of the statute, R.S. 54:40, N.J.S.A. 54:40; that said billboards advertise almost every type of industry, goods and merchandise, and social, political, and religious subjects; that said billboards are safe and are of approved construction and design; that they are not dangerous to life or limb, nor do they constitute a traffic or fire hazard.

Attack is made upon said ordinance upon various grounds, amongst which are that the ordinance is invalid and not within the police power of the borough; that it is in restraint of trade and amounts to a prohibition of a legitimate business, and, therefore, unconstitutional.

The statutory authority relied on by the municipality is R.S. 40:48-2, N.J.S.A 40:48-2, which provides: "Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and bylaws 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."

The ordinance in question in its first section prohibits the use of all lands in the municipality for a...

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16 cases
  • Al Walker, Inc. v. Borough of Stanhope
    • United States
    • New Jersey Supreme Court
    • March 25, 1957
    ...Gurland v. Town of Kearny, 128 N.J.L. 22, 24 A.2d 210 (Sup.Ct.1942); O'Mealia Outdoor Advertising Co. v. Mayor and Council of Borough of Rutherford, 128 N.J.L. 587, 27 A.2d 863 (Sup.Ct.1942); Rosencrans v. Eatontown Tp., 80 N.J.L. 227, 77 A. 88 (Sup.Ct.1910). Cf. Appley v. Bernards Tp., 128......
  • Murphy Inc. v. Town Of Westport
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    • Connecticut Supreme Court
    • November 8, 1944
    ...supra, as regards an ordinance which excluded billboards from an entire town, in O'Mealia Outdoor Advertising Co. v. Mayor and Council, etc., of Rutherford, 128 N.J.Law 587, 590, 27 A.2d 863, as regards one which excluded them from an entire borough, and in Mid-State Advertising Corporation......
  • State v. Miller
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    • New Jersey Supreme Court
    • July 8, 1980
    ...See, e. g., Passaic v. Paterson Bill Posting Co., 72 N.J.L. 285, 287, 62 A. 267 (E. & A.1905); O'Melia Outdoor Advertising Co. v. Rutherford, 128 N.J.L. 587, 591, 27 A.2d 863 (Sup.Ct.1942); Cooper Lumber Co. v. Dammers, 2 N.J.Misc. 289, 393, 125 A. 325, 327 (Sup.Ct.1924); Romar Realty Co. v......
  • Westfield Motor Sales Co. v. Town of Westfield
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    • July 12, 1974
    ...purposes. See, E.g., Pfister v. Clifton, 133 N.J.L. 148, 152, 43 A.2d 275 (Sup.Ct.1945); O'Mealia Outdoor Advertising Co. v. Rutherford, 128 N.J.L. 587, 591, 27 A.2d 863 (Sup.Ct.1942); Cooper Lumber Co. v. Dammers, 125 A. 325, 327, 2 N.J.Misc. 289, 292 (Sup.Ct.1924); Levy v. Mravlag, 96 N.J......
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