O'Mealia Outdoor Advertising Co. v. Mayor and Council of Borough of Rutherford, 227.
Decision Date | 19 August 1942 |
Docket Number | No. 227.,227. |
Citation | 27 A.2d 863,128 N.J.L. 587 |
Parties | O'MEALIA OUTDOOR ADVERTISING CO. et al. v. MAYOR AND COUNCIL OF BOROUGH OF RUTHERFORD. |
Court | New 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.
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:
The stipulation of facts recites:
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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