State v. Pinkos

• Decision Date: 12 November 1971
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Raymond A. PINKOS, Jr., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 104

117 N.J.Super. 104

283 A.2d 755

STATE of New Jersey, Plaintiff-Respondent, v. Raymond A. PINKOS, Jr., Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Nov. 3, 1971.

Decided Nov. 12, 1971.

George F. Hendricks, Jr., New Brunswick, for defendant-appellant (Pincus, Shamy & Sheehan, New Brunswick, attorneys).

Roland A. Winter, Perth Amboy, for plaintiff-respondent (Sam Weiss, Newark, of counsel).

Stephen L. Gordon, Deputy Atty. Gen., for George F. Kugler, Jr., Atty. Gen., amicus curiae.

Before Judges KILKENNY, LABRECQUE and LANE.

The opinion of the court was delivered by

LABRECQUE, J.A.D.

Defendant Raymond A. Pinkos, Jr. was convicted in the Edison Township Municipal Court of violating section 1 of an ordinance of the township entitled 'An Ordinance to Prohibit Hunting and the Discharge of Firearms and other Weapons in the Township * * *.' He was fined $25, plus $10 costs. On appeal to the Middlesex County Court his conviction was affirmed. The present appeal followed.

Section 1 of the ordinance in question provides 'that hunting of any type within the limits of the Township of Edison is, and shall be, hereafter, banned and prohibited.' While we have not been furnished with a transcript of the hearing in the municipal court, defendant has stipulated that the proofs offered there were sufficient to convict him of violation of section 1.

Defendant seeks a reversal of his conviction on the sole ground that the regulation of 'hunting,' including the designation of territorial limits, has been preempted by the State. The issue before us is thus a very narrow one and does not involve the right of a municipality to ban activities which may or may not be concerned with hunting but which directly affect the public safety. See Chester Tp. v. Panicucci, 116 N.J.Super. 229, 235--236, 281 A.2d 811 (App.Div.1971).

In Summer v. Teaneck Tp., 53 N.J. 548, 554, 251 A.2d 761 (1969), the court in discussing the guidelines to be followed in respect to claims of State preemption, stated:

A municipality may not contradict a policy the Legislature establishes. Auto-Rite Supply Co. v. Mayor and Township Committeemen of Woodbridge, 25 N.J. 188, 135 A.2d 515 (1957). Hence an ordinance will fall if it permits what a statute expressly forbids or forbids what a statute expressly authorizes. Even absent such evident conflict, a municipality may be unable to exercise a power it would otherwise have if the Legislature has preempted the field. This follows from the basic principle that local government may not act contrary to State law. But an intent to occupy the field must appear clearly. Kennedy v. City of Newark, 29 N.J. 178, 187, 148 A.2d 473 (1959). It is not enough that the Legislature has legislated upon the subject, for the question is whether the Legislature intended its action to preclude the exercise of the delegated police power. Masters-Jersey, Inc. v. Mayor and General Council of Borough of Paramus, 32 N.J. 296, 160 A.2d 841 (1960). Hence the fact that the State has licensed a calling may not be enough to bar local licensure to protect an additional value of local concern. Belleville Chamber of Commerce v. Town of Belleville, 51 N.J. 153, 157, 238 A.2d 181 (1968). The ultimate question is whether, upon a survey of all the interests involved in the subject, it can be said with confidence that the Legislature intended to immobilize the municipalities from dealing with local aspects otherwise within their power to act.

In the absence of an intent to totally preempt the field, a municipality, acting pursuant to its delegated powers, can deal with specific local problems by expanding control in that area so long as there is no conflict with the legislative proscription. Fred v. Mayor, etc., Old Tappan, 10 N.J. 515, 521--522, 92 A.2d 473 (1952); Kligman v. Lautman, 98 N.J.Super. 344, 355, 237 A.2d 483 (App.Div.1967), aff'd 53 N.J. 517, 251 A.2d 745 (1969). Whether a given field has been preempted by the Legislature is strictly a question of fact. Chester Tp. v. Panicucci, Supra, 116 N.J.Super. at 235, 281 A.2d 811.

We are in accord with defendant's contention that section 1 of the ordinance, for violation of which defendant was convicted, conflicts with the public policy of this State and hence is Ultra vires and void.

In 1948 the Legislature created an 11-member Fish and Game Council in the Division of Fish and Game (now the Division of Fish, Game and Shell Fisheries). N.J.S.A. 13:1D--4. The Council was charged with formulating 'comprehensive policies for the protection and propagation of fish, birds, and game animals * * *.' N.J.S.A. 13:1B--24, 28. The Council was charged with the formulation of a Fish and Game Code for the entire State as follows:

For the purpose of providing an adequate and flexible system of protection, propagation, increase, control and conservation of fresh water fish, game birds, game animals, and fur-bearing animals in this State, and for their use and development for public recreation and food supply, The council is hereby authorized and empowered to determine under what circumstances, when and in what localities, by what means and in what amounts and numbers such fresh water fish, game birds, game animals, and furbearing animals, or any of them, may be pursued, taken, killed, or had in possession so as to maintain an adequate and proper supply thereof, and may, after first having determined the need for such action on the basis of scientific investigation and research, adopt and from time to time amend and repeal such appropriate and reasonable regulations...