For the prosecutor, Morris N. Scharf, pro se (Milton T. Lasher and John W. Ockford, of counsel).
For the defendant, Romeo R. Napolitano (James A. Major, of counsel).
Before Justices Donges, Colie and Eastwood.
The opinion of the court was delivered by
COLIE, J. This writ brings up the conviction of Morris N. Scharf on a complaint charging him with violations of the amended zoning ordinance of the Borough of Ramsey. In 1936 the borough enacted a zoning ordinance hereinafter referred to as Ordinance 204. By that ordinance the premises here involved are located in an area designated as Zone A and restricted in use to "a single detached house used as a residence for one housekeeping unit." The building was formerly a carriage house and stable. About 1920 the northerly half was converted into a single family dwelling and was in use as such when the zoning ordinance was adopted. In 1942 the prosecutor purchased the premises and desiring to make the southerly half habitable for living quarters applied to the building inspector for a permit "to construct partitions for living quarters, cutting in four additional windows and one doorway and lay new flooring and entrance to cellar" at an
estimated cost of $750. A permit issued and the changes were made. In July, 1943, the building inspector notified prosecutor of the violation and gave him until August 16th, 1943, to remove it. The following day, a summons issued at the instance of the borough but this proceeding was subsequently abandoned. In October, 1943, the prosecutor instituted a suit for a declaratory judgment. Cf. Scharf v. Ramsey, 134 N.J.L. 67. The questions raised on this certiorari were not touched upon by the Supreme Court in the cited decision. In the meantime, a new complaint against prosecutor for violations of the ordinance was stayed pending disposition of the suit for declaratory judgment and when the latter was decided, the borough proceeded with the complaint in the Criminal District Court. That proceeding terminated in a dismissal; the court holding that the zoning ordinance was invalid and would not sustain a conviction because it stripped the magistrate of any discretion in imposing the penalty upon conviction and therefore violated the provisions of R.S. 40:49-5. The borough sought no review of the adverse decision but instead enacted Ordinance 257 on July 9th, 1946.
Section 19 of Ordinance 204 provided for a fixed penalty of $100 for each day the violation continued and, after notice and order to desist, for a penalty of $200 per day. The amending ordinance was entitled "An ordinance re-affirming and amending" Ordinance 204, referred to its title at length, and then re-enacted all of section 19 in substantially the same language excepting the penalty paragraph which was changed to read:
"Any person who shall violate any provision of this ordinance shall be subject to a fine not exceeding Two Hundred Dollars ($200.00) for each violation, and shall, in addition, be civilly liable in damages to any person injured by such violation.
"Nothing herein contained shall be construed to prevent the Borough or any officer or agency thereof, or any other person, from pursuing any other remedy which it may have to prevent or abate any violation of any provision of this ordinance."
After the adoption of Ordinance 257, the borough filed complaints against the prosecutor in the Recorder's Court, alleging a violation of Ordinance 204 as amended. The matter was heard and resulted in the conviction of the prosecutor and he was sentenced to pay a fine of $25 on each ...