State v. Inhabitants of City of Trenton

• Decision Date: 10 November 1902
• Citation: 68 N.J.L. 501,53 A. 202
• Parties: STATE (IVINS et al., Prosecutors) v. INHABITANTS OF CITY OF TRENTON.
• Court: New Jersey Supreme Court

53 A. 202

68 N.J.L. 501

STATE (IVINS et al., Prosecutors)

v. INHABITANTS OF CITY OF TRENTON.

Supreme Court of New Jersey.

Nov. 10, 1902.

(Syllabus by the Court.)

Certiorari to review a city ordinance by Minor H. Ivins and others, as prosecutors, against the inhabitants of the city of Trenton. Affirmed.

Argued before DIXON, PITNEY, and HENDRICKSON, JJ.

James Buchanan, for prosecutors.

Charles E. Bird, for defendant.

HENDRICKSON, J. The prosecutors seek to set aside, as invalid, an ordinance of the city of Trenton approved March 18, 1902. The ordinance ordains that the erection, etc., of any stationary or swinging sign, or any stationary awning, shed, or other obstruction, across the whole or any portion of any sidewalk within that portion of the city of Trenton embraced within certain bounds defined in the ordinance, shall be deemed and is thereby declared to be a nuisance. It contains provisions empowering and directing the police department to prevent such erections or other obstructions across the whole or any portion of any sidewalk within said bounds, and to remove any such erection or obstruction there existing in front of any building where the owner or occupant neglects or refuses to remove the same after 10 days' notice in writing. A penalty of $20 is also added in case of such neglect or refusal after notice. The prosecutors are the owners of a brick store building and lot known as No. 120 North Broad street, in said city, where for several years they have conducted the business of dealers in fruits, vegetables, and produce. They have an awning in front of their premises, 25 feet 11 inches long, consisting of an iron frame and roof, covered with boards and tin, 14 feet in height next to the building and 12 feet in height at the curb, and extending over the whole sidewalk. This awning was constructed by the grantor of the prosecutors in 1886, and has been maintained there ever since.

It is contended that the ordinance is invalid, in that it is not general, fair, or impartial, but discriminates against individuals within a portion of the city, who are to suffer oppressive interference in the enjoyment of their property, while those who live in the remaining territory of the city are left entirely free from such interference. In support of this contention the prosecutors cite Dill. Mun. Corp. (4th Ed.) § 322, where the principle is laid down that: "As it would be unreasonable and unjust to make, under the same circumstances, an act done by one person, penal, and if done by another, not so, ordinances which have this effect cannot be sustained. Special and unwarranted discrimination or oppressive interference in particular eases is not to be allowed." This is, without doubt, a well-established doctrine; and, if the ordinance in question is within the principle here delineated, it must fail. But is it? The map presented to us shows that the district covered by the ordinance includes parts of four different wards of the city, and is located at its business center, and includes a large portion of the principal business streets. The principle above alluded to as affecting municipal legislation is not universal in its application to all conditions, and will not necessarily render an ordinance discriminating because it affects a certain class, or is applicable only to a certain designated district or to a certain street. The general and special character of an ordinance must be determined by the facts of each case, and not by any fixed rule. Tied. Mun. Corp. 152. This exception is recognized in the notes to section 322 of Dillon, in which the case of Railroad Co. v. Richmond, 96 U. S. 521, 24 L. Ed. 734, is cited with approval. The ordinance in that case forbade the running of railroad carriages, engines, etc., over part of a certain street. Upon the question of discrimination, Waite, C. J., says, "All ordinances should be general in their operation, but all places within the same city do not necessarily require the same local regulation. * * * It is the special duty of the city authorities to make the necessary discrimination in this particular." This view is sustained in the following cases: Com. v. Goodrich, 13 Allen, 549; Barbiere v. Connolly, 113 U. S. 27, 5 Sup. Ct 357, 28 L. Ed. 923; also in City of St. Louis v. Weber, 44 Mo. 547, where an ordinance prohibited the keeping of a meat shop in the city of St. Louis within certain prescribed limits. Applying this view to the case in hand, we think a city council of a populous and growing city might reasonably conclude that a measure so restrictive as this was necessary for public convenience in the crowded thoroughfares of the city, but was not necessary in the less crowded streets, or in those where business places were less numerous. If we could discover from the facts before us that this ordinance was a mere act of caprice on the part...