Toms River Pub. Co. v. Borough of Manasquan, Monmouth County

• Decision Date: 06 February 1974
• Citation: 127 N.J.Super. 176,316 A.2d 719
• Parties: TOMS RIVER PUBLISHING COMPANY, a corporation of the State of New Jersey, Plaintiff, v. The BOROUGH OF MANASQUAN, MONMOUTH COUNTY, et al., Defendants.
• Court: New Jersey Superior Court

Page 176

127 N.J.Super. 176

316 A.2d 719

TOMS RIVER PUBLISHING COMPANY, a corporation of the State of New Jersey, Plaintiff, v. The BOROUGH OF MANASQUAN, MONMOUTH COUNTY, et al., Defendants.

Superior Court of New Jersey Chancery Division.

Feb. 6, 1974.

Peter R. Strohm, Lakewood, for plaintiff (Rothstein, Mandell & Strohm, P.C., Lakewood, Attorneys).

John D. Wooley, Manasquan, for defendants, Borough of Manasquan, Council of the Borough of Manasquan, Stuart R. Hancock, Mayor of the Borough of Manasquan and William A. Morton, Chief of Police of the Borough of Manasquan.

LANE, J.S.C.

In this action plaintiff seeks an injunction to restrain the enforcement of a provision of an anti-litter ordinance. The matter is before the court on final hearing.

Plaintiff publishes a public newspaper in Ocean and Monmouth Counties under the name of 'The Reporter.' It is distributed by plaintiff without charge to residents within the Borough of Manasquan and is hand delivered to the homes of all residents unless they have specifically requested that it not be delivered.

At its regular meeting on April 23, 1973, the governing body of Manasquan passed Ordinance 884, which reads in part:

No person shall deposit or deliver any paper, circular or printed material of any kind at any residence within the Borough of Manasquan, except upon the expressed request and order of the owner or occupant of any such residence.

Municipalities have no powers other than those delegated to them by the Legislature and by the State Constitution. Ringlieb v. Tp. of Parsippany-Troy Hills, 59 N.J. 348, 351, 283 A.2d 97 (1971); Wagner v. Newark, 24 N.J. 467, 474, 132 A.2d 794 (1957). N.J.S.A. 40:48--2, however, is a sweeping grant of legislative power to municipalities:

Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law.

Normally municipal ordinances are presumed to be valid. Courts are instructed that such ordinances must receive liberal construction. N.J.Const., Article IV, Section VII, 11. See Moyant v. Paramus, 30 N.J. 528, 534, 154 A.2d 9 (1959).

In Johnson v. Township of Montville, 109 N.J.Super. 511, 264 A.2d 75 (App.Div. 1970), the court stated:

In passing upon the validity of the ordinance the role of the courts is tightly circumscribed. (Cit. omit.) There is a presumption that the municipal governing body acted reasonably and that the resulting legislation is valid. (Cit. omit.) We may not pass upon the wisdom of a particular ordinance, and debatable issues or questions of policy involved in its passage must be resolved in favor of the municipality. (Cit. omit.) We are not free to compare the views of the municipal governing body with our own and from this to determine what policy would be in the best interest of the community's residents. The wisdom of the course chosen by the governing body, as distinguished from its legality, is reviewable only at the polls. * * * (at 519, 264 A.2d at 79)

However, the police power delegated by the state is not infinite and illimitable. Iannella v. Piscataway Township, 138 N.J.Eq. 598, 600, 49 A.2d 491 (Ch.1946). An exercise of delegated power in a manner not within the contemplation of the Legislature must be restrained within proper bounds and be held void. Hasbrouck Heights Hosp. Ass'n v. Bor. of Hasbrouck Heights, 15 N.J. 447, 455, 105 A.2d 521 (1954). Justice Heher summarized the appropriate restraints upon the exercise of the police power in Schmidt v. Board of Adjustment, Newark, 9 N.J. 405, 88 A.2d 607 (1952):

The exercise of the power is contained by the rule of reason. Arbitrary action is inadmissible. There must be a substantial connection between the means invoked and the public interest designed to be advanced. The inquiry is whether, considering the end in view, the measure 'passes the bounds of reason and assumes the character of a merely arbitrary fiat.' (Cit. omit.) It is requisite that there be a rational relation between the regulation and the service of the common welfare in an area within the reach of the police power, and that the means be reasonable and appropriate to that end. Restraints upon property cannot be unreasonable or unduly discriminatory. A police regulation that goes beyond the public need is not effective to curtail the basic rights of person or of private property made the subject of constitutional guaranties. But where the subject is comprehended in the police power of the state, debatable questions as to the reasonableness of the measure are not for judicial cognizance. * * * (at 416, 88 A.2d at 612) See 7 McQuillin, Municipal Corporations, § 24.393 (3d ed. 1968 Rev.Vol.). Compare Dziatkiewicz v. Township of Maplewood, 115 N.J.L. 37, 42, 178 A. 205 (Sup.Ct.1935) and Allen v. McGovern, 12 N.J.Misc. 12, 14, 169 A. 345 (Sup.Ct.1933) with Evans v. LePore, 26 N.J.Misc. 215, 216--217, 59 A.2d 385 (Sup.Ct.1948) and Hackettstown v. Tomas, 85 N.J.Super. 578, 205 A.2d 471 (Cty.Ct.1964).

The municipal police power can be exercised only in those areas where regulation is needful for the common good, I.e., public health, safety, morals or general welfare, and then only by reasonable means substantially connected with the public interest designed to be advanced. Moyant v. Paramus, Supra, 30 N.J. at 544, 154 A.2d 9; Mogelefsky v. Schoem, 90 N.J.Super. 49, 57, 216 A.2d 236 (App.Div.1966), modified and remanded 50 N.J. 588, 236 A.2d 874 (1967).

The sweep of the police power is coextensive with the public need, which has been defined as that which is reasonably demanded by, but not necessarily indispensable to, the general welfare. A regulation that maintains the proper balance between collective and individual rights is ordinarily a legitimate exercise of the authority. Mansfield & Swett, Inc. v. West Orange, 120 N.J.L. 145, 153, 198 A. 225 (Sup.Ct.1938).

The allegation is that the provision of Ordinance 884 is so broad in its terms as to curtail the right of freedom of the press guaranteed by the First Amendment of the United States Constitution and that it is therefore unconstitutional on its face. The normal rule of presumption of validity of municipal action does not apply where the municipal action impinges upon a citizen's freedom secured by the First Amendment.

* * * (A)ny attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. (Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430 (1945))

The right to distribute, circulate or otherwise disseminate ideas and written materials has long been recognized to constitute an integral part of the right of free speech and press. Both rights are clearly fundamental ones protected by the First Amendment. Martin v. Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 87 L.Ed. 1313 (1943); Lovell v. Griffin, 303 U.S. 444, 450--452, 58 S.Ct. 666, 82 L.Ed. 949 (1938). The freedom of speech and press embraces the right to distribute literature and necessarily protects the right to receive it. Martin v. Struthers, Supra, 319 U.S. at 143, 63 S.Ct. 862. Accord, Marsh v. Alabama, 326 U.S. 501, 505, 66 S.Ct. 276, 90 L.Ed. 265 (1946). The privilege may not be withdrawn even if it creates the minor nuisance for a community of cleaning litter from the streets, although the peace, good order and comfort of the community may require regulation of the time, place and manner of distribution. Martin v. Struthers, Supra, 319 U.S. at 143, 63 S.Ct. 862.

An ordinance touching such fundamental protected rights must be narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial state interest. See Gooding v. Wilson, 405 U.S. 518, 522, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Elfbrandt v. Russell, 384 U.S. 11, 18, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966); Sherbert v. Verner, 374 U.S. 398, 406--407, 83 S.Ct. 1790, 10 L.Ed. 965 (1963); Cantwell v. Connecticut, 310 U.S. 296, 311, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). Legitimate legislative goals cannot be pursued by means that broadly stifle fundamental personal liberty when the end can be narrowly achieved. Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). Such intrusions into constitutionally protected areas must be founded on a compelling state interest which overrides private rights. In Martin v. Struthers, Supra, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313, the court stated:

Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas. (at 146--147, 63 S.Ct. at 865)

In Lovell v. Griffin, Supra, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, the Supreme Court had before it an ordinance which prohibited distribution of any literature of any kind without the permission of the City Manager. Mr. Chief Justice Hughes stated:

The ordinance in its broad sweep prohibits the...