Steiker v. Bor. Of East Paterson

• Citation: 137 N.J.L. 653,61 A.2d 215
• Decision Date: 03 September 1948
• Docket Number: No. 21.,21.
• Parties: STEIKER et al. v. BOROUGH OF EAST PATERSON et al.
• Court: United States State Supreme Court (New Jersey)

137 N.J.L. 653

61 A.2d 215

STEIKER et al.

v.BOROUGH OF EAST PATERSON et al.

No. 21.

Court of Errors and Appeals of New Jersey.

Sept. 3, 1948.

Appeal from Supreme Court.

Proceeding by Sydney G. Steiker and others against the Borough of East Paterson and others, to set aside an ordinance. From a judgment on certiorari setting aside the ordinance, the defendants appeal.

Reversed.

R. Sery Nicosia, of East Paterson, (Dominick F. Pachella, of Hackensack, of counsel), for defendants-appellants.

Hein & Smith, of Hackensack, for prosecutors-respondents.

FREUND, Judge.

This appeal is from a judgment, on certiorari, setting aside an ordinance of the Borough of East Paterson ‘to license and regulate the business of selling or storing for sale any used or new motor vehicles on vacant lots.’

The court below set aside the ordinance on the ground, inter alia, that ‘it is unreasonable, arbitrary and discriminatory. No license fee is imposed upon one who would sell used motor vehicles from a garage, yet one who sells them from a vacant lot must pay a license fee.’ We do not believe that the unreasonableness of the ordinance rests solely on such ground. The Supreme Court in two recent cases, Chaiet v. City of East Orange, 136 N.J.L. 375, 56 A.2d 599 and Ring v. North Arlington, 136 N.J.L. 494, 56 A.2d 744, 747, determined that a municipality may, pursuant to the authority granted by R.S. 40:52-1 and 2, N.J.S.A., adopt an ordinance providing for licensing and regulating the sale of used automobiles on vacant lots. As Mr. Justice Heher said in the latter case, ‘The ordinance constitutes the exercise of both the regulatory and revenue functions delegated by the statute cited supra. The statute empowers the municipality to levy license or privilege taxes or excises for revenue and also for regulation under the police power in the interest of the public health, safety and general welfare; but there cannot be an arbitrary exertion of the power.’ We adopt the views expressed in these opinions as declarative of the general power of municipalities to regulate the business of selling used cars from vacant lots.

However, this power of a municipality is always subject to the general qualification that the provision must not be unreasonable, arbitrary or discriminatory.

At the outset, we wish to dispose of the argument made in the brief of the appellants that the writ was improperly allowed because ‘there was no adverse action or proceeding against the prosecutors' and that ‘The ordinance * * * has never been enforced against the prosecutors, nor have they applied for any licenses.’ We do not find any merit in this argument. The court below pointed out ‘the right to institute the action was not challenged until oral argument on the writ. It is then too late to challenge the stand of the prosecutor.’ Moreover, the uncontradicted testimony indicates that the respondents are the only persons engaged in the business of selling used automobiles from vacant lots within the Borough of East Paterson and, accordingly, are the only ones directly affected by the ordinance. A complete answer to the appellants' argument is found in the case of Gurland v. Kearny, 128 N.J.L. 22, 24 A.2d 210, 212, in which the court said:

'Prosecutor here has a live, direct and substantial pecuniary interest in * * * the ordinance. It is an interest which is peculiar to him. It seriously affects his business. * * *

'In that circumstance, it appears to us, and we so hold, that reason and justice utterly fail to support the general requirement that one, as prosecutor here, should first submit to a prosecution based upon an invalid but separable provision of an ordinance and thus subject himself to the penalties for the violation thereof, to the waste of time and money incident to his defense thereto, and appeal therefrom, especially when, as here, the proofs stand unchallenged.'

We now come to an examination of some of the provisions of the ordinance under attack.

Section 3 of the ordinance provides, inter alia, ‘nor shall said license be assignable or transferable in any manner.’ The ordinance in the Chaiet case provided that the license was not transferable or assignable, except with the consent of the City Council. There may be circumstances under which there could be no reasonable basis for denying a transfer or assignment, for example, in the case of the death of a licensee, or in case of a bona fide sale, or by operation of law. To absolutely preclude an assignment or transfer of a license ‘in any manner’ as this ordinance provides seems unreasonable and arbitrary.

Section 5(d) of the ordinance contains the requirement that ‘* * * that portion of the area included in the license which fronts upon a public street shall be enclosed by a fence * * * which * * * shall be not less than four (4 ) inches nor more than six (6 ) inches in height of sturdy, permanent construction and meeting the approval of the Superintendent of Public Works. Such fence * * * shall be set back at least one (1 ) foot from every property line on which the said tract may front.’ It will readily be seen from reading the above provision that there is an inconsistency in that it first provides for a fence which shall enclose ‘that portion of the area * * * which fronts upon a public street’ and later that ‘such fence * * * shall be set back * * * from every property line on which the said tract may front.’ A licensee would be unable to understand from such provision just where the fence is required. Further, as pointed out by Chief Justice Case in the Chaiet case, the purposes of a fence of reasonable height is apparent. There a fence not less than eighteen inches in height was required; here we can see no valid basis for such a limitation as six inches on the height of the fence, nor for the mandatory setback in all instances, imposed by this ordinance. Neither is any norm or standard provided under which the Superintendent of Public Works is to approve or disapprove any fence...