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Tobey v. Board of Commissioners

Decided: February 13, 1948.

HERBERT H. TOBEY, PROSECUTOR,
v.
BOARD OF COMMISSIONERS OF THE CITY OF PASSAIC, RESPONDENT



On certiorari.

For the prosecutor, Heller & Laiks (Aaron Heller).

For the respondent, Thomas E. Duffy.

Before Justices Bodine, Heher and Wachenfeld.

Bodine

The opinion of the court was delivered by

BODINE, J. The prosecutor seeks a writ of certiorari to review an ordinance of the City of Passaic and also seeks an alternative or peremptory writ of mandamus to compel the granting of his application for permission to operate five additional taxicabs from a stand near the Erie Railroad station in that city.

The application, in the first instance, was made to Mr. Justice Heher and was denied by him and was then renewed, on due notice, before the court en banc.

The Home Rule Act, R.S. 40:52-1, confers upon the governing body of any municipality power to make and enforce ordinances with respect to vehicles used in the transportation of passengers.

The Motor Vehicle Act, R.S. 39:4-197, confers municipal power to regulate public hacks and designation of hack stands and auto bus stops or stations.

The Public Utility Act, R.S. 48:16-2, provides that no auto cab shall be operated without the consent of the elective governing body or member thereof having control of the public streets in any municipality.

In the licensing of taxicabs, the City of Passaic passed an ordinance on November 13th, 1945, which, in part, provides as follows:

"Section four. The City Clerk upon receipt of such application shall refer the same to the Director of the Department of Public Safety for investigation and report and it shall be the duty of said Director to make a diligent investigation of said application and report thereon in writing as soon as possible. The City Clerk upon receipt of such report from said Director shall present said application and report to the Board of Commissioners who shall have the power to grant or refuse all licenses. * * * The taxicab license shall only ...


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