Ricca v. Bd. Of Com'rs Of Town Of Belleville. Ricca

• Decision Date: 27 December 1948
• Docket Number: No. A-32.,A-32.
• Citation: 62 A.2d 746
• Parties: RICCA et al. v. BOARD OF COM'RS OF TOWN OF BELLEVILLE. RICCA v. BOARD OF COM'RS OF TOWN OF BELLEVILLE.
• Court: New Jersey Superior Court

62 A.2d 746

RICCA et al.

v.BOARD OF COM'RS OF TOWN OF BELLEVILLE.

RICCA

v.BOARD OF COM'RS OF TOWN OF BELLEVILLE.

No. A-32.

Superior Court of New JerseyAppellate Division, Part A.

Dec. 27, 1948.

Appeal from Board of Commissioner of Town of Belleville.

Certiorari by Nicholas Ricca and others, and by Anthony S. Ricca to review two ordinances of the Town of Belleville, a municipal corporation, in the County of Essex. From the judgment, plaintiffs appeal.

Affirmed in part and reversed in part.

Syllabus by the Court.

1. Where ordinance sought to prohibit the riding of saddle horses on railroad right-of-way, except at protected crossings, and upon any portion of public highway located within fifty feet thereof; Held, facts revealed that underlying motive prompting passage of ordinance was to preclude owner of riding academy from continuing his business, and the ordinance was invalid, discriminatory and arbitrary for failure to use reasonable means for regulatory purpose.

2. Municipal corporation, in the exercise of its police power, must use reasonable means for the protection of a basic interest of society, and means employed in such exercise must have a rational relation to that end and be free from arbitrariness.

3. License fee of $250 for riding academy renting horses or ponies hired for use on or off premises as saddle horses; Held, reasonable under circumstances of the case.

Before JACOBS, Senior J., and EASTWOOD and BIGELOW, JJ.

Emil Klein and Klein & Klein, all of Newark, for plaintiffs-appellants.

Lawrence E. Keenan, of Belleville, for defendant-respondent.

EASTWOOD, Judge.

Certiorari was allowed by the former Supreme Court to review two ordinances of the Town of Belleville adopted on November 12, 1946, one providing that no person shall ride or lead in any manner any saddle horse on any railroad right-of-way, excepting at crossings which have in attendance regularly employed watchmen of the railroad company, and on any portion of any public highway of the Town of Belleville which is located within fifty (50) feet of such railroad right-of-way; and the other providing for the imposition of a license fee of $250 for the conduct of a riding academy or any establishment which stables horses or ponies which are hired for use on or off the premises as saddle horses. Depositions were taken pursuant to the writs, and by stipulation both matters have been consolidated for disposition on the appeal to this court.

Plaintiffs, Nicholas and Maria C. Ricca, have been the owners since June 12, 1933, of certain lands in a rural section of Belleville lying adjacent to the southwesterly side of the Greenwood Lake Branch of the Erie Railroad. This land has no frontage on any public street or highway and lies southwesterly from the intersection of Smallwood Avenue and Lavergne Place. Smallwood Avenue is a public street one block north of the Erie Railroad right-of-way, across the tracks from plaintiffs' property; Lavergne Place runs from north to south, intersecting Smallwood Avenue, and is paved up to the southerly side of Smallwood Avenue; it then becomes a meandering sort of roadway to the northerly line of the Erie right-of-way, leading southwardly to the double-tracked railroad, then across the tracks into a private road which forms the westerly boundary of the Ricca property and the easterly boundary of premises adjoining the Ricca property on the west. The crossing over the railroad at this point is a private unprotected crossing, constructed of a hard surface pavement to permit convenient and easy passage of pedestrians, vehicles and animals over it. Whistle sign posts are maintained by the railroad about five hundred feet east and west of the crossing. The Riccas post a timetable of the trains on their property.

Nicholas Ricca operates a coal business on his property, and the riding academy has been conducted thereon by Anthony S. Ricca since 1938.

The adoption of both ordinances was obviously prompted by a fatal accident which occurred on May 11, 1946, to a young lady who had hired one of Ricca's saddle horses, and whose body was found later on the north side of the railroad tracks, approximately fifteen hundred feet westerly from the crossing at Lavergne Place. There is an atmosphere of uncertainty as to how and under what circumstances her death was occasioned.

We are asked to set aside the ordinance on three grounds. They are: (1) the ordinance entitled ‘An Ordinance Pertaining To Saddle Horses' is arbitrary, illegal and void; (2) the licensing ordinance is arbitrary, capricious and discriminatory, and is an illegal impost in that although adopted for regulatory purposes provides for excessive license fees; and (3) the licensing ordinance fails to set forth a legally sufficient standard for the guidance of the licensing official. The appeal is resisted on the grounds that (1) the ‘Saddle Horse Ordinance’ is a valid exercise of municipal police power; and (2) the licensing ordinance is a valid exercise of the taxing power or of the regulatory power of the municipality.

Our review of the proofs impels us to the conclusion that the so-called saddle horse ordinance is prohibitory and discriminatory, rather than regulatory, and for this reason cannot be sustained. Albeit, the municipality has the...