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Brookdale Homes Inc. v. Johnson

Decided: May 1, 1941.

BROOKDALE HOMES, INC., RESPONDENT,
v.
J. CORY JOHNSON, TOWN CLERK, ET AL., APPELLANTS



On appeal from the Supreme Court, whose opinion is reported in 123 N.J.L. 602.

For the respondent, William Huck, Jr.

For the appellants, Edward C. Pettit.

PER CURIAM.

The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Perskie in the Supreme Court.

For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, DONGES, PORTER, COLIE, WELLS, RAFFERTY, JJ. 7.

For reversal -- CASE, HEHER, DEAR, WOLFSKEIL, HAGUE, THOMPSON, JJ. 6.

HEHER, J. (Dissenting.) I vote to reverse the judgment.

The local zoning ordinance established what was denominated a "Small Volume Residential Zone A," limited in residential use to the "single detached house * * * by not more than one family," and to accessory and other uses conceded to be in keeping therewith, with a proviso that "no building" therein "shall be erected to a height in excess of 35 feet" or "with its roof ridge less than 26 feet above the building foundation," excluding "a false front, cupola, tower or similar part of a building" in the computation of the minimum height thus prescribed; and the question for decision is whether this regulation is ultra vires the municipality. I entertain the view that it is a valid exercise of power.

Zoning now has express constitutional recognition; and the earlier cases (e.g., Ignaciunas v. Risley, 98 N.J.L. 712; affirmed, sub nom., State v. Nutley, 99 Id. 389, and H. Krumgold & Sons v. Jersey City, 102 Id. 170) do not reveal the governing principle, and serve only to point what was deemed to be the need for and therefore the motive underlying the amendment of the State Constitution (article IV, section VI, paragraph 5) adopted at a special election held on September 20th, 1927.

I have the conviction that the amendment did not invest the legislature with authority not theretofore possessed by it. By the constitution (article III, paragraph 1; article IV, section 1, paragraph 1), the people of the state conferred upon the legislature full sovereign authority except as therein limited; and this clearly comprehends the police power, i.e., the inherent right of sovereignty so to order the affairs of the people as to meet the common essential need. There is no residuum of sovereign power, apart from the police, invoked by this amendment for the enlargement of the general legislative function as theretofore laid down in our organic law. The police power does not have its genesis in a written constitution. It is an indispensable attribute of our society. It was possessed by the state sovereignties before the adoption of the Federal Constitution. Mayor, &c., of New York v. Miln, 11 Pet. 102; 9 L. Ed. 648.

The police authority does not lend itself to precise definition, for its quality and scope are commensurate with the public exigency arising from ever changing social and economic conditions. Neither the Fourteenth Amendment nor any other provision of the Federal Constitution serves to limit the quantum of the power. "Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the state in the exercise of those powers, and with such conditions the Fourteenth Amendment was not designed to interfere." Lochner v. New York, 198 U.S. 45; 25 S. Ct. 539; 49 L. Ed. 937. This constitutional mandate "was not intended to curtail the powers of the states to so amend their laws as to make them conform to the wishes of their citizens, to changed views of administration, or to the exigencies of their social life. It may be readily supposed that the inhabitants of each state understand perfectly their own local needs and interests, and, with the facilities with which the constitutions of the several states may be amended, it is scarcely possible that any evil which might be occasioned by an improvident amendment would not be readily redressed." Bolln v. Nebraska, 176 U.S. 83; 20 S. Ct. 284; 44 L. Ed. 382. See, also, Nebbia v. New York, 291 U.S. 502; 54 S. Ct. 505; 78 L. Ed. 940; 89 A.L.R. 1469. [126 NJL Page 518] It has been said that the "great end for which men entered into society was to secure their property;" yet that right is subject to abridgement by "public law for the good of the whole." Boyd v. United States, 116 U.S. 616; 6 S. Ct. 524; 29 L. Ed. 746. This public right of reasonable regulation for the common good is denominated the police power. Chief Justice Shaw early declared it to be "a settled principle, growing out of the nature of well-ordered society," that all property is "held subject to those general regulations which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law, as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient. * * * The power we allude to is rather the police power; the power vested in the legislature by the constitution, to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the Commonwealth, and of the subjects of the same. It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or prescribe limits to its exercise." Commonwealth v. Alger, 7 Cush. 53, 84. And in Leonard v. State, 100 Ohio St. 456; 127 N.E. Rep. ...


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