Morgan v. Bd. of Com'Rs of Borough of Collingswood

• Decision Date: 23 December 1927
• Citation: 139 A. 718
• Parties: MORGAN v. BOARD OF COM'RS OF BOROUGH OF COLLINGSWOOD.
• Court: New Jersey Supreme Court

139 A. 718

MORGAN

v. BOARD OF COM'RS OF BOROUGH OF COLLINGSWOOD.

Supreme Court of New Jersey.

Dec. 23, 1927.

(Syllabus by the Court.)

Proceeding by the State, on the relation of William E. Morgan, for mandamus to be directed to the Board of Commissioners of the Borough of Collingswood. On rule to show cause why a writ of mandamus should not issue. Rule to show cause discharged, with permission to so mold pleadings as to permit review.

Argued May term, 1927, before TRENCHARD, KALISCH, and KATZENBACH, JJ.

Herbert J. Koehler, of Camden (Louis B. Le Due, of Camden, of counsel) for relator.

John A. Benn, of Camden, for respondents.

TRENCHARD, J. The relator William E. Morgan, is the lessee of a lot of land in the borough of Collingswood, N. J., at the corner of White Horse pike and Dwight avenue.

He desired to erect a gasoline service station upon such property, and on October 29, 1926, he applied, in writing, to the borough commissioners for a permit for that purpose. That application, after hearing, was denied by the commissioners. He thereupon obtained a rule to show cause why a writ of mandamus should not be issued commanding the board of commissioners of the borough to grant such permit.

We think that he is not entitled to the writ.

Under the police power delegated to municipalities by the "Home Rule Act" (P. L. 1917, p. 319 et seq.), in article 14, § 1, par. (p), authorizing them, by ordinance, "to regulate the use, storage, sale, and disposal of inflammable or combustible materials, and to provide for the protection of life and property from fire, explosions and other dangers, "the borough may, within reasonable limitations, regulate the business of storing and selling gasoline within its boundaries, defining where and how gasoline service stations may be constructed and operated, as by forbidding the erection thereof in certain places. Such power must, however, be exercised reasonably, not arbitrarily, and the regulation or restriction, in order to be valid, must have some substantial tendency to promote or protect the public safety, health, or general welfare. Independent Penna Oil Co. v. Gloucester (N. J. Sup.) 134 A. 554; Long v. Scott (N. J. Sup.) 133 A. 767; Bauer v. Paterson Fire, etc., Com'rs (N. J. Sup.) 132 A. 515; Wittkop v. Garner (N. J. Sup.) 132 A. 339. See, also, Larkin Co. v. Schwab, 242 N. Y. 330, 151 N. E. 637.

Avowedly, in pursuance of the power thus conferred, the borough, on August 4, 1924, enacted an ordinance providing, among other things, that "no building or plant shall hereafter be constructed or established in the borough of Collingswood for the use, storage, sale, and disposal of inflammable or combustible materials or liquids * * * without securing a permit therefor from the board of commissioners," to be granted or refused "as they deem proper for the protection of life and property from fire, explosions, and other dangers arising therefrom," and further providing that "no such buildings or plant shall be erected or established within 500 feet of any dwelling house."

Now, at the public hearing upon relator's application, held pursuant to the provisions of the ordinance, the board of commissioners found that there were 39 dwelling houses within 500 feet of the proposed building or plant which the relator sought permission to erect, and this finding is not challenged by the relator. And it further appears that, so finding, the board denied the application for the permit for the reason, among others, that the building proposed would violate the provision of the ordinance that no such plant should be erected within 500 feet of any dwelling house and would create a fire hazard by reason of its proximity to dwelling houses and of increased traffic congestion at that point.

If, therefore, the provisions of the ordinance that no such building or plant shall hereafter be erected or established "within 500 feet of any dwelling house" is a reasonable one, the relator is not entitled to a writ of mandamus.

That proposition the relator admits to be sound. But he says that such a regulation is unreasonable. To that contention we answer that it does not appear to be so.

It was lately pointed out in A. G. Construction Co. v. Scott (N. J. Sup.) 136 A. 207, that the courts recognize the hazard connected with the storage and sale of gasoline at service stations, and further recognize the right of the governing body of each municipality to reasonably regulate this class of construction and business and to prohibit it where necessary. See, also, Hench v. City of East Orange (N. J. Sup.) 130 A. 363; Ninth Street Improvement Co. v. Ocean City, 90 N. J. Law, 107, 100 A. 568, affirmed 91 N. J. Law, 703, 103 A. 186.

The question of the reasonableness of an ordinance is a question of fact, and the burden of proof is on those who attack it. The court will not interfere, unless it is clearly shown that the ordinance, either upon the face of its provisions or by reason of its operation in the circumstances under which it is to take effect, is unreasonable. A. G....