For the prosecutors, Abraham Alboum.
For the defendant, Bruck & Bigel (Milton Bruck, of counsel).
Before Justices Bodine, Heher and Wachenfeld.
The opinion of the court was delivered by
HEHER, J. The essential question here is the legal sufficiency of a local ordinance requiring a license, and the payment of an annual license fee of $250, "for each separate and distinct location where the business of engaging in the sale, purchase or exchange of used motor vehicles and parts thereof is maintained or conducted, or where used motor vehicles and parts thereof are being stored for the purpose of sale or exchange." The term "separate and distinct location" is defined to "mean any premises, which consist of a part of one or one or more lots, as set forth on the Tax Map" of the defendant borough, "and which part of lot or lots are adjacent and contiguous to each other, and if described by metes and bounds would have one continuous and uninterrupted boundary line." And it is provided that the license issued shall describe the location of the business covered thereby; and the licensee is enjoined against the operation of the business at any other location. The ordinance is a revenue and regulatory measure enacted pursuant to R.S. 40:52-1, 40:52-2.
Prosecutors devote these premises to the business made the subject of this legislation: (1) Land abutting on the west side of River Road, North Arlington, known as No. 269 River Road, being the southerly portion of Block 130 on the local tax map, and Nos. 271-305 River Road, being the northerly and major part of Block 130, which Block 130 fronts about 400 feet on the road and runs back an average
depth of 50 feet; (2) land fronting on the east side of the same thoroughfare, numbered 268-274, in width about 105 feet and in depth about 75 feet; (3) land on the east side of the road, numbered 304-310, approximately 100 feet by 100 feet; and (4) premises also on the east side of the road, numbered 288-292, in width 45 feet and in depth 75 feet, used as an "office and main place of business." Block 130 is directly opposite the office building on location 4. The northerly or major part of location 1 is used for the display and sale of used motor vehicles; the southerly portion thereof and locations 2 and 3 are devoted to the storage and sale of parts of used motor vehicles. All of these premises have been used "for the same business since 1924."
It is stipulated that there is no "ordinance licensing and regulating the use of premises by dealers in new motor vehicles and parts;" that premises nearby designated as Nos. 252-266 River Road, containing about 41,000 square feet of land, are devoted to the same business as that conducted by prosecutors, and the borough requires but one license and one license tax for the premises; and that from 1938 to 1945, only one license fee was exacted from prosecutors for all of its premises.
There were two earlier ordinances providing for the separate licensing of those who deal in used motor vehicles and in parts of such vehicles. The license fee for the former was fixed at $100 for each location, and for the latter at $250 for each location. This court ruled that, in the view of the statute (40:52-1, supra), the two constituted but one business and were subject to the licensing power only as a unit. Ring v. North Arlington, 134 N.J.L. 407.
The ordinance alone is before us for review. The return to the writ of certiorari reveals no adverse action against prosecutors which is subject to judicial examination. The writ restrained the borough from taking action against prosecutors "for any alleged violations" of the ordinance. The ordinance is challenged as arbitrary, discriminatory and unreasonable, on its face and its application to prosecutors.
The argument, in sum, is that the local legislative definition of a "licensable location" is ...