Ostroff v. Board of Com'rs of City of Camden, A--179

• Decision Date: 25 April 1950
• Docket Number: No. A--179,A--179
• Citation: 7 N.J.Super. 245,72 A.2d 880
• Parties: OSTROFF et al. v. BOARD OF COM'RS OF CITY OF CAMDEN. CAMDEN COCA COLA BOTTLING CO. et al. v. BOARD OF COM'RS OF CITY OF CAMDEN.
• Court: New Jersey Superior Court — Appellate Division

Page 245

7 N.J.Super. 245

72 A.2d 880

OSTROFF et al. v. BOARD OF COM'RS OF CITY OF CAMDEN.

CAMDEN COCA COLA BOTTLING CO. et al. v. BOARD OF COM'RS OF CITY OF CAMDEN.

No. A--179.

Superior Court of New Jersey

Appellate Division.

Argued March 27, 1950.

Decided April 25, 1950.

Meyer L. Sakin, Camden, for and of counsel with plaintiffs-appellants, argued the cause.

Norman Heine, Camden, argued the cause for the defendant-respondent (John J. Crean, Camden, attorney).

Before Judges JACOBS, McGEEHAN and EASTWOOD.

The opinion of the court was delivered by

EASTWOOD, J.A.D.

Plaintiffs appeal from a judgment of the Superior Court, Law Division, determining that an ordinance adopted by the defendant on March 15, 1928, as amended on August 28, 1948, is valid and enforceable.

The ordinance is entitled: 'An Ordinance to license and regulate wholesale bottling establishments, trades or businesses within the City of Camden, New Jersey, and to fix the fee to be paid for such licenses and to prohibit all persons and places unlicensed from acting, using or being used for such uses and purposes and providing for a penalty for the violation hereof.', and the pertinent provision reads as follows: 'Section 1. It shall be unlawful for any person, persons, firms or corporation to run, operate or maintain any store, dwelling or establishment for the purpose of manufacturing soft drinks for the purpose of sale and distribution thereof in wholesale quantities or to conduct any store, dwelling or establishment for the purpose of sale or distribution of bottled soft drinks in wholesale quantities, commonly known as 'wholesale soft drink establishments,' or to sell, deliver or distribute bottled soft drinks in wholesale quantities within the City of Camden without first having obtained a license therefor.'

The plaintiffs operate and maintain establishments outside of the City of Camden for the manufacture and bottling of soft drinks for sale and distribution in wholesale quantities. For several years last past, they have sold and delivered their bottled goods directly from their trucks to retailers in the City of Camden, except on occasion an order is telephoned to the plant. At the conclusion of each transaction, the driver-salesman usually collects the amount due for the sale.

The ordinance, as originally adopted on March 15, 1928, provided for the imposition of an annual license fee in the amount of $25. For a period of approximately fifteen years prior to 1948, plaintiffs complied with the provisions of the ordinance, by obtaining the necessary license. The 1948 amendment provides for an annual license fee of $100 and a further fee of $5 for each additional wagon, truck or vehicle used in said business. The plaintiffs refused to comply with the terms of the ordinance as amended, and instituted this action to test its validity.

The plaintiffs advance three grounds for a reversal of the Law Division's judgment, viz.: (1) the ordinance is ultra vires the municipality; (2) the ordinance is not applicable to plaintiffs, as the situs of their business is located in a municipality other than the City of Camden; and (3) the ordiance is discriminatory, oppressive, unreasonable and confiscatory. Defendant asserts that the ordinance is valid and enforcable, is authorized by R.S. 40:52--1, 2, N.J.S.A., and is not discriminatory, oppressive, unreasonable or confiscatory.

The plaintiffs argue that the ordinance is ultra vires the municipality in that it seeks to license the same privilege extended by the State Food and Drug laws, under the authority of which (R.S. 24:12--5 et seq., N.J.S.A.) the State Department of Health has issued to plaintiffs a certificate to engage in their particular business throughout the State of New Jersey. There appears to be no serious question that the design of the regulatory features of the Food and Drug Act, as administered by the State Department of Health, is to protect the public health, safety and welfare. Pursuant to this design, and in the exercise of the supervisory power vested in the State Health Department, the certificate issued to plaintiffs evidenced their compliance with the rules and regulations of the State department, a condition precedent to their engaging in that particular type of business. We see no merit to the plaintiffs' contention that the issuance of this certificate exempts them from the municipal license. The municipal license is not for a parallel purpose, but was imposed under the appropriate legislative power and with the view of receiving revenue therefrom. This purpose we deem to be distinguishable from the regulations of the State Department of Health. The authority of a municipality to license and regulate businesses and to impose fees thereon for revenue, stems from R.S. 40:52--1, N.J.S.A., and R.S. 40:52--2, N.J.S.A. That part of R.S. 40:52--1, N.J.S.A., providing that a municipality shall not be empowered to license or regulate a holder of a license or certificate issued by a department, board, commission or agency of the State has been construed by our courts to be inapplicable where the two licensing authorities impose a license for different purposes. Chaiet v. City of East Orange, 136 N.J.L. 375, 56 A.2d 599 (Sup.Ct. 1948); Ring v. Mayor...