Sbrolla v. Hess.

• Decision Date: 03 October 1945
• Parties: SBROLLA v. HESS.
• Court: New Jersey Circuit Court

43 A.2d 498

SBROLLA

v.HESS.

Circuit Court of New Jersey, Atlantic County.

July 16, 1945.

Judgment Affirmed Oct. 3, 1945.

See 44 A.2d 36.

Proceeding by John Sbrolla against Maria Hess to acquire possession of certain dwelling and premises on ground that defendant, tenant in possession thereof, held over and continued in possession after expiration of his term and after demand was made and written notice given by complainant landlord for delivery of possession of premises to him. On defendant's motion to dismiss the affidavit and cause of action based thereon on ground that notice to terminate tenancy set forth in the affidavit did not comply with requirements of state statute and that court was, therefore, without jurisdiction to entertain the proceeding.

Motion denied.

Lloyd, Horn & Perskie, by David M. Perskie, and John B. Baratta, all of Atlantic City, for complainant.

Martin Bloom, of Atlantic City, for defendant.

BURLING, Circuit Court Judge.

On June 5, 1945, complainant commenced proceedings in the Atlantic City District Court to acquire possession of ‘house and accommodations and premises' situate and known as premises 108 N. Annapolis Avenue, in the City of Atlantic City, New Jersey, on the ground that the defendant, tenant in possession of the premises, held over and continued in possession thereof after the expiration of his term and after demand was made and written notice given by the landlord for delivery of possession of the premises to him. R.S. 2:58-17, subd. a, N.J.S.A. Prior to the return date of the summons to show cause why possession should not be delivered to complainant, an application was made by complainant, pursuant to R.S. 2:58-27, N.J.S.A. (see also R.S. 2:32-274, N.J.S.A.) to the Honorable Frederick R. Colie, a Justice of the Supreme Court of New Jersey, for an order transferring the cause to the Atlantic County Circuit Court. On June 11, 1945, an order was made by him transferring the cause to the Circuit Court of the County of Atlantic and in due season the appropriate papers were delivered to the Clerk of the Atlantic County Circuit Court, thereby vesting that Court with full and exclusive cognizance of the case. R.S. 2:58-27, N.J.S.A.

Pursuant to the mandate of the statute (R.S. 2:58-28, N.J.S.A.), a venire facias was issued by the Atlantic County Circuit Court Judge returnable in one week. Prior to the return date of the venire facias as aforesaid, defendant moved to dismiss the affidavit and the cause of action based thereon upon the ground that the notice to terminate the tenancy set forth in the affidavit was not in accordance with the requirements of the statutes of the State of New Jersey, and that the Circuit Court was, therefore, without jurisdiction to entertain the proceeding. Prior to the return date of the motion, complainant filed a petition with the Court setting forth in substance that in order to determine the question raised by the motion, to wit, the constitutionality of Chapter 84 of the Laws of 1945, R.S. 46:8-11 et seq., N.J.S.A., it was necessary either to take depositions or to stipulate certain facts with regard to the method of enactment of the law, and with regard to the classification set forth in the 7th (17th of the revision) section of the original act. The petition prayed for the right to stipulate or take depositions on the matters aforesaid and on other matters and also for a postponement pending the taking of the depositions, or the entering into of the stipulation, of the return date of the motion and of the trial. The trial was adjourned until July 16, 1945, and the argument on defendant's motion was adjourned until June 29, 1945. No testimony was taken and a stipulation has been entered into between the parties and filed with the Court. The motion to dismiss the affidavit was argued and briefs submitted and decision reserved until the adjourned date of trial. The jury having been summoned in accordance with the venire facias and the cause coming on for trial in the presence of the parties and their attorneys to inquire into and try the proceedings for the possession of said premises, the defendant renewed his motion to strike out affidavit of the complainant and the cause of action upon the ground that it appears affirmatively on the face of said affidavit that notice to terminate the tenant's term was not given in accordance with the requirements of the law in such case made and provided and that therefore the Court is without jurisdiction to act under said affidavit. The motion to dismiss the cause of action is predicated upon the admitted failure of the affidavit to allege notice in compliance with Chapter 84 of the Laws of 1945, R.S. 46:8-11 et seq., N.J.S.A. Complainant contends that compliance with this statute is unnecessary, since the statute is unconstitutional and therefore void. Thus, the issue as to the constitutionality of the act in question is now singularly before the Court.

The complainant has abandoned any question as to the method of enactment of the legislation for the purpose of this proceeding only and as to the constitutionality of the statute in view of its title. Complainant relies in this proceeding upon the contentions that the statute violates Article 4, Section 7, paragraph 4, and Article 4, Section 7, paragraph 11, of the State Constitution, N.J.S.A., in that the act in question is special legislation and that the statute violates the obligation of contract and due process clauses of the Federal and State Constitutions, namely, Article 1, Section 10, cl. 1, and the 14th amendment of the Constitution of the United States of America, and Art. 1, Par. 1 and Art. 4, Sec. 7, par. 3, of the Constitution of the State of New Jersey in that:

a. It constitutes a deprivation of property without due process of law.

b. It constitutes an impairment of obligation of contract.

c. It denies to persons the equal protection of the laws.

d. It deprives parties of remedies for enforcing contracts which existed when the contracts were made.

e. It is not a lawful exercise of the police power since it is arbitrary, discriminatory and applies only to a portion of the public.

In approaching the question of the unconstitutionality of the statute, these formulas present themselves:

‘It is the settled rule of judicial policy in this jurisdiction that a legislative enactment will not be declared void unless its repugnancy to the Constitution is so manifest as to leave no room for reasonable doubt. The constitutional limitation upon the exercise of legislative power must be clear and imperative. This is a well-defined limitation engrafted upon the function assumed by the courts, federal and state, to nullify a statute for unconstitutionality.’ State v. Murzda, Err. & App. 1935, 116 N.J.L. 219, at page 223, 183 A. 305, at page 307.

‘To declare a statute unconstitutional is a judicial power to be delicately exercised. The exercise of that power has been entrusted to the courts. There it has been for generations, and there it must remain until the people in a constitutional manner lodge it elsewhere. The responsibility must be fearlessly assumed.’ Wilentz v. Hendrickson, Ch.1943, 133 N.J.Eq. 447, at page 487, 33 A.2d 366, at page 390.

The act, P.L.1945, Chapter 84, contains the following preamble:

‘Whereas, certain landlords have been and are taking undue advantage of the existing housing shortage which has created a serious emergency in certain cities of this State; and

‘Whereas, the peace, welfare and morals of the general public is threatened to such an extent as to make necessary and advisable the passage of measures which shall tend to promote the general welfare by curbing oppressive actions of landlords who seek unduly to raise rents, profiteer in rents, terminate tenancies for no valid cause and otherwise deprive their tenants of housing facilities; therefore,’

Sections 1 and 2 of the act are as follows:

‘1. Except as herein otherwise provided, any tenancy for dwelling purposes now existing, whether under a lease, or from month to month, or otherwise, shall continue, notwithstanding the expiration of the tenancy by its terms, or by the service of a notice to end the tenancy by the landlord to the tenant, either prior or subsequent to the passage of this act; provided, the tenant is otherwise entitled to continue in possession, under the terms of the letting and shall continue to pay the rent as stipulated at the beginning of his tenancy.’

‘2. Any tenancy now existing and which shall continue under the provisions of this act, may be terminated by a landlord, who is also the owner of the demised premises, by a notice in writing to that effect, to the tenant, which shall be served upon the tenant not less than six months prior to the date of termination specified in the notice; provided, the owner and landlord, in good faith, desires the premises for actual use by himself and his family, for dwelling purposes, as his principal year around home and legal residence, and is otherwise legally entitled to terminate the tenancy on the date specified for such termination.’

The act makes it a misdemeanor to fail to make the limited use for one year of the premises after obtaining possession. Summer rentals are deleted from its effect and premises of sixteen rooms or more.

Section 7 is an important section in defining the limited operation of the act as follows:

‘7. This act shall be inoperative except in cities bordering on the Atlantic ocean in counties of the fifth class having a population of less than one hundred fifty thousand according to the last Federal census.’

The facts in paragraph 2 of the stipulation hereinbefore referred to are relevant and regardless of the stipulation are the subject of judicial notice, namely:

‘2. There are two Fifth Class counties in the State of New Jersey: Atlantic County and Monmouth County, the County of Monmouth having a population of 161,238 as of the 1940 Federal census and the ...