On appeal from the Supreme Court, whose opinion is printed in 13 N.J. Mis. R. 260.
For the appellants, Andrew L. McDonough (Merritt Lane, of counsel).
For the respondents, Spaulding Frazer.
The opinion of the court was delivered by
PERSKIE, J. This appeal brings up for review a judgment of the Supreme Court moulded on the opinion of Mr.
Justice Case who, pursuant to statute, sat alone for the court.
The writ of certiorari brought up for review an order of the board of adjustment of the city of Plainfield, New Jersey, revoking certain permits (building and gasoline tank and pumps), granted to the prosecutors.
Mr. Justice Case, after a thorough and careful consideration of all the reasons assigned and argued in the cause determined "that the action of the adjustment board in setting aside the inspector's permit and denying permission on its own authority was valid." Accordingly he dismissed the writ. We agree with the reasoning and result reached by him.
Under these circumstances, we would, in the usual and orderly process governing our determination of causes, stop at this point. But, it is now argued for prosecutors, and for the first time in this cause, that the limitation put on the use of their property, both by the board of adjustment and the Supreme Court is an invasion of, if not the due process clause of our own state constitution, the due process and equal protection of the law provisions of the fourteenth amendment to the federal constitution.
Our answer to this argument is that this is not properly before us. We search the record in vain to find where these points were argued below. It will be observed that Mr. Justice Case specifically stated the position taken by prosecutors on the argument before him. He said (at p. 264), "prosecutors do not dispute the propriety of the ordinance provisions; they simply try to put themselves outside its purview." And lest there be some misunderstanding because the record before him "was not technically perfect," he further detailed the points argued for prosecutors. He said (at p. 265):
"It will be observed that the points argued by prosecutors are made to rest upon -- and in this numerical order: (1) a right said to have been acquired by an earlier, non-conforming use, (2) a right said to have vested on the issuing of the building inspectors' permit and the act of the prosecutors in proceeding with the work in dependence ...