Morristown-Madison Auto Bus Co. v. Borough of Madison

• Decision Date: 10 November 1913
• Citation: 88 A. 829,85 N.J.L. 59
• Parties: MORRISTOWN-MADISON AUTO BUS CO. v. BOROUGH OF MADISON.
• Court: New Jersey Supreme Court

88 A. 829

85 N.J.L. 59

MORRISTOWN-MADISON AUTO BUS CO.

v. BOROUGH OF MADISON.

Supreme Court of New Jersey.

Nov. 10, 1913.

(Syllabus by the Court.)

The Morristown-Madison Auto Bus Company was convicted of violating an ordinance of the Borough of Madison licensing hack-men, and bring certiorari to review such ordinances. Conviction reversed.

Certiorari to review an ordinance for the licensing of hackmen and others and a conviction thereunder. The original ordinance required a license from any person who kept or used for hire any vehicle for transportation of passengers from any point within the borough of Madison. The license required was provided for in section 5, which authorized the borough council to grant licenses under the borough seal to persons keeping and using for hire vehicles for the transportation of passengers within the borough of Madison. Of this ordinance the prosecutor did not complain. In 1912, by a supplement, it was made unlawful to make use of any motor vehicle within the borough of Madison for the transportation of passengers for any fee or compensation without being first licensed as provided by the ordinance.

The prosecutor is a New Jersey corporation operating a motor bus between the park, in Morristown, and the tracks of the Morris County Traction Company on Ridgedale avenue, in Madison, for the purpose of carrying passengers for hire between those two points. There is a no proof that the prosecutor ever transacted any other business in Madison, and, after the adoption of the supplement to the ordinance, no collection of fares was made within Madison. No passengers were discharged in Madison on the trip to Morristown, and no passengers were taken on in Madison after leaving the terminus. It is agreed that the prosecutor does not do a hacking business in the borough of Madison, and that it has taken out state licenses as required by the Motor Vehicle Act.

Argued June term, 1913, before SWAYZE, BERGEN, and VOORHEES, JJ.

King & Vogt, of Morristown, for prosecutor.

Charles A. Rathbun, of Morristown, for defendants.

SWAYZE, J. (after stating the facts as above). [1, 2] The Motor Vehicle Act (3 Comp. St. 1910, p. 3435, § 22) enacts that no owner, purchaser, or driver of a motor vehicle who shall have complied with the requirements of the act shall be required to obtain any other license, or permit, to use or operate the same, or be limited in the free use thereof, or limited as to speed upon any public street or other public place when the same is open to the use of persons having carriages, or be required to comply with other provisions or conditions as to the use of the motor vehicle except as provided in the act. The act also provides that no municipality shall have power to make any ordinance, by-law, or resolution limiting or restricting the use or speed of motor vehicles, and no such ordinance, by-law, or resolution in respect to or limiting the use or speed of motor vehicles shall have any force, effect, or validity. This section plainly secures the prosecutor the right to run its auto bus in Madison. This is not denied by the defendants, who assert a right, however, to license the business of transporting passengers for hire, whether conducted by a motor vehicle or by a vehicle using another method of propulsion. We think the object of the Motor Vehicle Act was to secure the right of the road to that new method of travel free from interference by conflicting regulations of municipalities through which the motor vehicles might run, but that it was not intended to prevent municipalities from regulating the conduct of business by means of licenses in the long-accustomed way.

The right to license is now regulated by the act of 1905 (P. L. p. 360), as amended in 1912 (P. L. p. 209). This act covers the whole subject in cities, townships, incorporated towns, and incorporated boroughs. Lakewood v. Havens, 76 N. J. Law, 169, 68 Atl. 1113; Kellam v. Newark, 79 N. J. Law, 364, 75 Atl. 548; Atlantic City v. Larcomb, 81 N. J. Law, 354, 79 Atl. 1068. It authorizes the imposition of license fees for revenue, and the fee here involved is so high that it can only be justified as an exercise of the taxing power. The authority may be properly granted by the Legislature under the power to license and regulate. Authority to enact license fees, we have said, may be classified either under the police power or under the taxing power, and the Legislature may delegate the licensing power as a revenue measure, in which case it is exerted as a branch of the taxing power. Mulcahy v. Newark, 57 N. J. Law, 513, 515, 31 Atl. 226. Such an ordinance was sustained under an act, entitled "An act to amend an act respecting...