For the prosecutors, Milton M. Unger, Adrian M. Unger and Henry Gottfried.
For the defendant, Walter C. Ellis.
Before Case, Chief Justice, and Justice Burling.
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. The City of East Orange has ordinances which, read together, require those who would engage in the business of selling or exchanging automobiles on open lots to obtain a license to do so, to pay a license fee of
$300 if the area is not more than 10,000 square feet or $500 if the area exceeds that square footage and within ten days after the license is granted to enclose the area by a fire proof fence not less than eighteen inches in height without openings except where the street curb has been lowered in accordance with the rules of the engineer's office. Prosecutors assert that new cars are sold only from showrooms, wherefore the ordinances in actual practice apply only to "used car lots;" a conclusion which may be conceded without weakening the defendant's case.
Three of the prosecutors, severally, come within the application of the ordinance provisions and deny the legality thereof upon the grounds, first, that they are discriminatory and, second, that they are without or are contrary to statutory authority. We shall discuss these grounds in reversed order. Prosecutors do not deny that the power to license businesses generally is lodged with the municipality. Their contention is that the prima facie right of the city is superseded by the imposition of state licenses upon the same business function.
In the year from June 1st, 1946, to May 31st, 1947, in the City of East Orange, there were twenty-one licensed open lot enterprises of the kind here considered. The number of sales by the several licensees is variable. One dealer testified that he sold about 400 cars during the year. Others refused to say. The bulk of the sales occur during the "season" -- April, May, June and part of July. It is obvious that there must be much activity during certain periods and on certain days. The fire hazard, the theft hazard, the protection of pedestrians from promiscuous driving of cars from any point across the sidewalk, the danger to passing traffic of promiscuous entrance and exit of cars, the sanitary hazard where no toilets are maintained, the general confusion of such a business when not supervised and restricted serve to present a fit, almost a necessary, subject for the exercise of a degree of municipal control and an appropriate one for imposing a fee which is commensurate with the occasion for additional municipal expenses.
The general authority of a municipality to license and regulate businesses by ordinance and to impose fees thereon for
revenue is contained in R.S. 40:52-1 and 2. The statute contains a provision, however, that nothing therein shall be construed to authorize or empower a municipality to license or regulate any person holding a license or certificate issued by any department, board, commission or other agency of the state; and prosecutors contend that the last mentioned provision nullifies the ordinance power of the defendant municipality for the reason that ...