United Advertising Corp. v. Borough of Raritan
| Decision Date | 22 December 1952 |
| Docket Number | No. A--49,A--49 |
| Citation | 11 N.J. 144,93 A.2d 362 |
| Parties | UNITED ADVERTISING CORP. v. BOROUGH OF RARITAN. |
| Court | New Jersey Supreme Court |
Mortimer Eisner, Newark, argued the cause for appellant (Arthur J. Sullivan, Jr., Newark, on the brief).
Raymond Del Tufo, Jr., Newark, argued the cause for respondent (Lum, Fairlie & Foster, Newark, attorneys; Vincent P. Biunno, Newark, on the brief).
Albert S. Bard, New York City, filed a brief amicus curiae for the New Jersey Roadside Council.
The opinion of the court was delivered by
The Billboard Act of 1930, R.S. 54:40--1 et seq., N.J.S.A., imposing annual license and permit fees upon those in the business of outdoor advertising who locate and maintain billboards and other structures for outdoor advertising, was revised and supplanted by the Billboard Act of 1942, R.S. 54:40--20 et seq., N.J.S.A., but, while carrying forward many of the provisions of the former law, expanding upon some and adding new matter, the 1942 law does not include a clause from section 8 of the former act providing 'nor shall any such permit be issued to erect or maintain any such billboard or other structure in a place where the same is or shall be prohibited by any municipal ordinance.' L.1930, c. 41, p. 220.
In August 1951 the Borough of Raritan adopted a zoning ordinance containing provisions prohibiting any sign in any of the nine zoning districts established by the ordinance which directs attention to a business, commodity, service or entertainment conducted, sold or offered elsewhere than upon the premises, and another provision which requires the removal of nonconforming signs within two years from the effective date of the ordinance unless continued use of individual signs for additional periods is authorized by the local board of adjustment.
Plaintiff, licensed by the Director of the Division of Taxation in the New Jersey Department of Taxation and Finance under the 1942 act, R.S. 54:40--20, N.J.S.A., and the holder of permits from the Director, R.S. 54:40--22, N.J.S.A., for two signs in existence when the zoning ordinance was adopted, one located in the Business B--2 District and the other in the Industrial M--1 District created by the ordinance, filed the instant proceeding in lieu of prerogative writ and obtained the summary judgment which is the subject of this appeal by the borough to the Appellate Division, certified here of our own motion declaring such provisions of the zoning ordinance to be invalid and void upon the ground, stated in the trial court's opinion, that from the action of the Legislature in omitting from the 1942 law the quoted clause from section 8 of the 1930 law, it must be held 'that the repealing statute abolished the right of a municipality to legislate on the subject of billboards.' 17 N.J.Super. 416, 418, 86 A.2d 313, 314 (Law Div.1952).
We do not agree that such significance is to be attached to the omission of the clause from the 1942 act. The purpose of the clause in the 1930 law was obviously to make clear the legislative intent that the municipal power to control by zoning ordinance the location of billboards as structures, conferred by the Zoning Act of 1928, L.1928, c. 274, p. 696, R.S. 40:55--30 et seq., N.J.S.A. which followed the 1927 zoning amendment to the 1844 Constitution, Art. IV, Sec. VI, par. 5, was not to be considered withdrawn or in anywise curtailed by the 1930 law. But this was wholly precautionary. Without the clause the 1930 act was not to be construed as having the effect of superseding municipal power in the field. The exercise of the municipal zoning power to control the location of billboards within the community would not prevent or interfere with the relization of the objectives which the 1930 law was purposed to attain. The same is true of the 1942 statute. Each imposes annual fees 'in lieu of all other taxes, license fees or excises for outdoor advertising,' for licenses entitling the holder to carry on the business of outdoor advertising, and for permits for each 'billboard, building, structure or other object for the display of outdoor advertising.' R.S. 5:40--20 et seq., N.J.S.A. The excess of moneys over the costs of administration is proportionately distributable under each statute 'to and among the municipalities in which billboards, buildings, structures or other objects used for outdoor advertising purposes and for which permits have been granted are located.' R.S. 54:40--41, N.J.S.A.
Each statute also contains regulatory provisions governing the grants by the State of permits to locate billboards. Those in the 1930 law forbade the location of a billboard within 500 feet of a highway intersection or railroad crossing where obstruction of or interference with the view of a vehicle or train might result, prohibited location of a billboard upon a public highway, park or other public property without the prior permission of the public body having control thereover, and enjoined against the issuance of a permit for a location which in the judgment of the state authority would be injurious to property in the vicinity, or injuriously affect any public interest. The 1942 statute incorporates the substance of these restrictions, sets a limit upon the size of billboards and adds more prohibitions: against the simulation of an official sign by an advertising sign, against location where the view of an existing sign would be obstructed, or where, in proximity with existing signs, there would be constituted a traffic hazard on an adjacent highway or where the public health, safety or morals would be endangered. R.S. 54:40--27 to 31, 34, N.J.S.A.
Plainly the regulatory provisions of both laws 'were obviously intended to supplement, not supplant, the powers of a municipality to deal with the problem of' billboards. Cf. Fred v. Mayor and Council of the Borough of Old Tappan, 10 N.J. 515, 92 A.2d 473, 476 (1952); Zullo v. Board of Health, Woodbridge Township, 9 N.J. 431, 436--437, 88 A.2d 625 (1952); Chaiet v. City of East Orange, 136 N.J.L. 375, 56 A.2d 599 (Sup.Ct.1948). They are wholly negative restrictions which with complete consistency are made fully applicable as regulations governing the location of outdoor advertising billboards and other structures where no municipal prohibition against such location prevents. Thus, as there is no express statement in the 1942 law that the municipal zoning power shall be abrogated as to billboards, and an intent that the law be given that effect not appearing by necessary or unmistakable implication admitting of no other reasonable explanation, 50 Am.Jur., Statutes, sec. 340, indeed the contrary implication more reasonably appearing, it follows that the omission from the 1942 statute of the essentially surplus clause in...
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