For the prosecutors, Abram A. Lebson (Seymour A. Smith, of counsel).
For the respondents, Donald M. Waesche.
Amicus curioe, Louis A. Fast.
Before Justices Bodine, Perskie and Porter.
The opinion of the court was delivered by
PERSKIE, J. The primary question requiring decision in this cause is whether the ordinance prohibiting the keeping of pin ball machines in any place of business in the Township of Teaneck, is ultra vires.
On March 18th, 1941, respondent Township of Teaneck passed an ordinance (No. 781) prohibiting the "keeping" of any "game of chance" or "gambling device" in any place of "business" within the municipality. N.J.S.A. 40:48-1 (P6); 40:48-2.
Section 1 of the ordinance provides that any "game, machine, apparatus or device such as is commonly called bagatelle, pin ball, or roulette, and any game, machine * * * of like nature by whatever name known should be deemed and regarded as a game of chance or gambling device."
Section 2 provides that "no person shall have, or keep, in any store, shop, tavern, restaurant or other place of business within the Township of Teaneck * * * any game, machine, apparatus or device such as * * * pin ball * * *."
Section 3 provides that the police of the township "are authorized to seize and hold for such further disposition as is authorized by law any game * * * pin ball found in any store * * * restaurant * * * or other place of business in the township * * *."
Section 4 provides that any person convicted for violating the provisions of the ordinances shall be subject "to a fine of not more than two hundred dollars, or imprisonment in the county jail not exceeding ninety days." N.J.S.A. 40:49-5.
The police of the township seized some of the banned pin ball machines. Whereupon prosecutor Saunders (substituted for Hunter) who owns pin ball machines and leases them to merchants in the Township of Teaneck and prosecutrix Malatesta, who had and kept a pin ball machine in her restaurant in the township (both hereafter referred to as prosecutors) made application for and were allowed a writ of ...