For the prosecutors, Abraham Alboum.
For the respondents, Bruck & Bigel (Milton Bruck, of counsel).
Before Justices Bodine, Perskie and Wachenfeld.
The opinion of the court was delivered by
PERSKIE, J. The basic question for decision is whether prosecutors conducted their business at three separate locations and thus each required a separate license, as charged by the municipality, or whether as claimed for prosecutors, that the three locations are part of all the premises used by them in their business as one unit and thus subject to but one license.
Prosecutors are dealers in second hand motor vehicles and parts of such second hand motor vehicles. They operate from locations on each side of River Road, in the Borough of North Arlington, New Jersey. For a clearer understanding of the posed question requiring decision, a brief description of the premises occupied and used by the prosecutors would be helpful. The last revision (1929) of the tax map of the borough
and a drawing showing the location of the premises actually occupied by the prosecutors disclose that they occupy the following premises abutting the east side of River Road: (1) lots 5 to 10, in Block 120 L, (2) lots 6 to 8, in Block 129 N, (3) lots 4 to 10, in Block 129 R. Prosecutors also use and occupy the following premises abutting the west side of River Road, (4) part of Block 130 A (directly opposite Block 129 R), and (5) Block 130 A. With the exception of the lots in Block 129 N (used for offices) and the lot 130 A (used solely for the sale of second hand motor vehicles) the remaining lots are separately occupied by prosecutors for the dismantling, storing and sale of parts of second hand motor vehicles.
Prosecutors conducted their business under one license (No. 15A) covering Block 130 A, which had been issued to them for the sale of second hand motor vehicles under ordinance No. 591 of the Borough. Conceiving that this license applied only to the use of the premises described as Block 130 A, respondent instituted proceedings against the prosecutors charging them, on each of three complaints, with illegally conducting their business of storing, dismantling and selling used parts of second hand motor vehicles on each of the three locations embraced under the aforestated descriptions 1, 3 and 4. The theory of the borough was, and is, that each complaint related to a separate location at which prosecutors conducted their business and for which a separate license was required under sections 1 and 2 of ordinance No. 590 of the borough. Prosecutors' theory, as indicated, was, and is, that their license, under ordinance No. 591, was all inclusive covering the right to deal in second hand motor vehicles and parts thereof at all of the stated locations which together with the remaining premises constituted the one situs of their business. Prosecutors were adjudged guilty as charged and were fined $50 on each of the three convictions. They were allowed a writ of certiorari to review the judgments of conviction. This is case No. 253. They were also allowed a rule to show cause why a writ of mandamus should not issue commanding respondents to change its license (No. 15A) so that it would cover not only Block 130 A but also cover
the three locations for which they were convicted for operating without a license. This is case No. 254. By stipulation the two cases were consolidated and substantively submitted on the record in No. 253.
As to case No. 253. We think that prosecutors' convictions were improper. Respondent -- the governing body of the borough -- has the unquestioned power to make, amend, repeal and enforce ordinances to "license and regulate" among other things, "* * * dealers in second hand motor vehicles and parts thereof" (italics supplied). R.S. 40:52-1.e. It has the power to regulate and exact a tax from such dealers. The power to license and regulate ...