For the prosecutors, Edward J. Santoro (John T. Keefe, of counsel).
For the respondents, Maurice M. Bernstein.
Before Justices Donges and Eastwood.
The opinion of the court was delivered by
EASTWOOD, J. Prosecutors seek, through the medium of a writ of certiorari, to review the legality and validity of certain summary proceedings conducted before the respondent Arvid Johnson, Recorder of the Township of Piscataway,
wherein they were convicted on or about October 8th, 1946, of violating a zoning ordinance of the Township of Piscataway. In the proceedings before the Recorder prosecutors were charged with operating a slaughter-house and the slaughter of animals thereon, on September 21st, 1946, contrary to the provisions of section 9 of said ordinance, which prohibits throughout the entire township limits the operation of a slaughter-house and the slaughter of animals. A brief recital of the circumstances prior to prosecutors' conviction may serve to clarify the factual situation.
In 1937, the Township of Piscataway adopted a zoning ordinance which, among other things by section 9 thereof, prohibited the use of any building or lot for the slaughter of animals in the entire township. In 1943, the Township Board of Adjustment granted to one Geschwind, the then owner of the slaughter-house in question, a temporary extension of his permit to conduct the slaughter-house. The extension granted to Geschwind was conditioned until the cessation of the hostilities of the war then in progress and three months thereafter. In March, 1946, the slaughter-house business and the land on which the building was erected were sold by Geschwind to the prosecutors. They in turn applied to the Board of Adjustment for an extension of the permit to continue the slaughter-house business. This application was denied on or about August 1st, 1946. Despite the failure of the prosecutors to secure a permit from the Board of Adjustment they nevertheless continued the operation of the slaughter-house. The township thereupon instituted proceedings in the Recorder's Court, as the result of which prosecutors were convicted and fined $25 each. An application was then presented to Supreme Court Justice Frederic R. Colie for a writ of certiorari to review their conviction, which was denied by Mr. Justice Colie on the ground that prosecutors had not sought a timely review of the action of the Board of Adjustment by certiorari within the thirty days' period as set forth in R.S. 40:55-46. Iannella and Russo then applied to the Court of Chancery to restrain the Township of Piscataway from interfering with the operation of the slaughter-house. While the Chancery proceedings were pending Iannella and
Russo in November, 1946, again applied to Mr. Justice Colie to review the legality of their conviction in the Recorder's Court under R.S. 2:215-7. In December, 1946, these proceedings were adjourned by the Justice sine die pending the decision of the Court of Chancery. On April 8th, 1947, ViceChancellor Jayne continued the temporary restraint against the municipality to enable the prosecutors to litigate the matter in this court, stating:
"At the argument I conceived and expressed the idea that the validity of the ordinance should appropriately be determined at law through the avenue of certiorari."
Prosecutors accordingly then applied to Mr. Justice Colie for a writ of certiorari, or in the alternative, a rule to show cause why certiorari should not be allowed to review the legality, validity and constitutionality of the zoning ordinance of Piscataway Township, particularly section 9 prohibiting the business of slaughtering animals throughout the township. Mr. Justice Colie denied this application on the grounds that the prosecutors had a legal remedy which they might have pursued but did not do so and, having abandoned that, they were debarred from coming in and seeking a review which turns upon the validity of the ...