On appeal from the Supreme Court.
For the defendants-appellants, R. Sery Nicosia (Dominick F. Pachella, of counsel).
For the prosecutors-respondents, Hein & Smith.
The opinion of the court was delivered by
FREUND, J. This appeal is from a judgment, on certiorari, setting aside an ordinance of the Borough of East Paterson
"to license and regulate the business of selling or storing for sale any used or new motor vehicles on vacant lots."
The court below set aside the ordinance on the ground, inter alia, that "it is unreasonable, arbitrary and discriminatory. No license fee is imposed upon one who would sell used motor vehicles from a garage, yet one who sells them from a vacant lot must pay a license fee." We do not believe that the unreasonableness of the ordinance rests solely on such ground. The Supreme Court in two recent cases, Chaiet v. East Orange, 136 N.J.L. 375, and Ring v. North Arlington, 136 Id. 494, determined that a municipality may, pursuant to the authority granted by R.S. 40:52-1 and 2, adopt an ordinance providing for licensing and regulating the sale of used automobiles on vacant lots. As Mr. Justice Heher said in the latter case, "The ordinance constitutes the exercise of both the regulatory and revenue functions delegated by the statute cited supra. The statute empowers the municipality to levy license or privilege taxes or excises for revenue and also for regulation under the police power in the interest of the public health, safety and general welfare; but there cannot be an arbitrary exertion of the power." We adopt the views expressed in these opinions as declarative of the general power of municipalities to regulate the business of selling used cars from vacant lots.
However, this power of a municipality is always subject to the general qualification that the provision must not be unreasonable, arbitrary or discriminatory.
At the outset, we wish to dispose of the argument made in the brief of the appellants that the writ was improperly allowed because "there was no adverse action or proceeding against the prosecutors" and that "the ordinance * * * has never been enforced against the prosecutors, nor have they applied for any licenses." We do not find any merit in this argument. The court below pointed out "The right to institute the action was not challenged until oral argument on the writ. It is then too late to challenge the stand of the prosecutor." Moreover, the uncontradicted testimony indicates that the respondents are the only persons engaged in the business of selling used automobiles from
vacant lots within the Borough of East Paterson and, accordingly, are the only ones directly affected by the ordinance. A complete answer to the appellants' argument is found in the case of Gurland v. Kearny, 128 N.J.L. 22, in which the court said:
"Prosecutor here has a live, direct and substantial pecuniary interest in * * * the ordinance. It is an interest which is peculiar to him. It ...