United Advertising Corp. v. Borough of Raritan, L--204

• Decision Date: 26 January 1952
• Docket Number: No. L--204,L--204
• Citation: 17 N.J.Super. 416,86 A.2d 313
• Parties: UNITED ADVERTISING CORP. v. BOROUGH OF RARITAN.
• Court: New Jersey Superior Court

Page 416

17 N.J.Super. 416

86 A.2d 313

UNITED ADVERTISING CORP. v. BOROUGH OF RARITAN.

No. L--204.

Superior Court of New Jersey Law Division.

Jan. 26, 1952.

Lum, Fairlie & Foster, Newark (Raymond Del Tufo, Jr., Newark, appearing), attorney for the plaintiff.

George W. Allgair, Somerville, attorney for the defendant.

Arthur J. Sullivan, Jr., of the New Jersey Bar, Newark, and Albert S. Bard, of the New York and Connecticut Bars, New York City, amici curiae.

DANIEL J. BRENNAN, J.S.C.

This is a proceeding in lieu of prerogative writ.

The plaintiff is the holder of outdoor advertising permits issued pursuant to state authority, and attacks an ordinance of the defendant entitled, 'An Ordinance to limit and restrict to specified districts and to regulate therein, buildings and structures according to their construction and the nature and extent of their use, and the nature and extent of the uses of land, and population density in the Borough of Raritan, Somerset County, New Jersey,' which was adopted by the defendant August 20, 1951. The attack is grounded upon the allegations contained in the complaint, among others one in sub-paragraph (g) of paragraph 7, of the following tenor: 'Because the authority to regulate and license outdoor advertising by the maintenance of billboards or other similar structures is vested solely and exclusively in the appropriate department of the State of New Jersey by reason of the provisions of R.S. 54:40--1, et seq. (N.J.S.A.), and not in the defendant municipality.'

The court addresses itself to this specific ground for the basis of its ultimate conclusions in this cause.

Learned counsel for the defendant states as indicative of the right of the defendant municipality to take jurisdiction over the construction of billboards within the municipality the authority of R.S. 54:40--10, N.J.S.A., and cites what he contends is the pertinent section, as follows: '* * * nor shall any such permit be issued to erect or maintain any such billboard or other structure in a place where it is or shall be prohibited by municipal ordinance.' The weakness in that contention of the defendant is that the statute to which reference is heretofore made was repealed by chapter 168 of the Laws of 1942 (R.S. 54:40--20, N.J.S.A. to R.S 54--40--49, N.J.S.A.). The specific language of the repealing clause is significant. It follows: 'Chapter forty of Title 54 of the Revised Statutes and all other acts and parts of acts inconsistent with this...