On appeal from the Supreme Court, whose opinion is reported in 134 N.J.L. 422.
For the prosecutors-appellants, George F. Losche.
For the respondent-respondent, Donald M. Waesche.
The opinion of the court was delivered by
WACHENFELD, J. This appeal brings up for review an ordinance of the respondent adopted September 20th, 1945, entitled "An Ordinance Regulating the Opening and Closing of Lunch Wagons Within the Limits of the Township of Teaneck." The appellants attack the constitutionality of the ordinance and the order of the Supreme Court dismissing a writ of certiorari.
The ordinance in section 1 provides as follows:
"All lunch wagons or places in which food is served to the public, commonly known as lunch wagons, shall be closed to the public, and business therein is prohibited, after the hour of one a.m. and before the hour of seven a.m. on all days."
The appellants are respectively the owner and lessee of a lunch wagon in Teaneck, New Jersey, conducting substantial night and day business. It is located in a district zoned for business. There are no ordinances restricting the hours of restaurants other than the ordinance herein concerned, but there is an ordinance which closes establishments selling intoxicants at two A.M. on week days and three A.M. on Saturday nights.
Of the four lunch wagons in Teaneck, two close voluntarily before one A.M. and two remain open all night. There are numerous her restaurants where alcoholic beverages and food
are sold after one A.M. The appellants receive from a nearby night club which closes at two A.M. a great deal of business during the hours of two and four A.M. During that period noise emanated from the lunch wagon and people were seen leaving and thereafter urinating and vomiting in front of the establishment. Others ate their food in automobiles at the street curb and when finished threw uneaten portions of food, paper plates, napkins and broken dishes on the sidewalk and on the lawns of nearby property owners. However, the police never found disturbances sufficient for any action.
The power of municipal governing bodies to pass ordinances relating to the regulation of restaurants and other eating places is expressly conferred by R.S. 40:52-1. Similarly, R.S. 40:48-2 provides any municipality may make any ordinance as it may deem necessary and proper for the good government, order and protection of persons and property and for the preservation of the public health, safety and welfare of the municipality and its inhabitants.
A municipal corporation is a creature of the legislature, with no inherent jurisdiction to make laws, but is a government of enumerated powers acting by delegated authority which must be exercised in a reasonable manner. The power conferred on municipal corporations by the state legislature is limited; its exercise must be directed to the protection of a basic interest of society and "* * * the means employed in its exercise have a rational relation to that end, and be altogether free from arbitrariness. The restraints and regulations imposed ...