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Edwards v. Mayor and Council of Borough of Moonachie

Decided: October 17, 1949.

DONNA EDWARDS, PLAINTIFF-RESPONDENT,
v.
THE MAYOR AND COUNCIL OF THE BOROUGH OF MOONACHIE, DEFENDANT-APPELLANT



On appeal from the Appellate Division of the Superior Court, whose opinion is reported in 3 N.J. Super. 10.

For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Heher, J.

Heher

The question at issue here is the validity of an ordinance "to license and regulate trailer camps and camp sites," adopted by the defendant municipality on September 17, 1947.

"Trailer camp" was defined in the ordinance as "any place where a trailer may be parked for longer than three hours, other than in a closed building;" "trailer" as "any vehicle used or constructed to be used as a conveyance upon public streets, whether self-propelled or otherwise, and so designed as to permit the occupancy thereof as a dwelling or sleeping place, and non-self-propelled vehicles of any kind or character constructed or intended to be moved under fuel power;" and "camp site" as "any place where a person is permitted to sleep or dwell other than in a permanent dwelling." The license fee was fixed at $200 per annum "and the sum of $1 per calendar week or part thereof per trailer." The fee was "imposed for revenue."

It was made incumbent upon the licensee to keep a "camp registry," to provide certain camp facilities, and to take specific measures for sanitation which need not be here enumerated. Suffice it to say that the regulation combines both police and tax measures. For the power, the municipality cites R.S. 40:52-1 (d) and 40:52-1 (g), as they were when the ordinance was adopted. The Appellate Division of the Superior Court found the inapplicability of subsection (d) so obvious as not to merit discussion. Invoking the doctrine of ejusdem generis, the general words of subsection (g) were

considered as restrained by the prior specific enumeration, and so not embracive of the business in question.

The municipality, while denying the validity of this view, urges that the inclusion of "trailer camps and camp sites" in the class comprised in subsection (d) by the amendment effected by Chapter 425 of the Laws of 1948 (P.L., p. 1664), served to supply the asserted want of power and to validate the ordinance. The insistence is that the question of power is governed by the state of the law at the time when the Appellate Division determined the issue, and that the regulation is effective if at that time it was grounded in statutory authority, even though there was none at all at the time of its adoption. But this reasoning is patently faulty.

The power to levy license fees, either as a police regulation or for revenue, is not inherent in municipal corporations; and an ordinance to either end without a statutory grant of power is ultra vires the municipality and void. Muhlenbrinck v. Commissioners, 42 N.J.L. 364 (Sup. Ct. 1880); Breninger v. Belvidere, 44 N.J.L. 350 (Sup. Ct. 1882); Haynes v. Cape May, 52 N.J.L. 180 (E. & A. 1889); Mulcahy v. Newark, 57 N.J.L. 513 (Sup. Ct. 1895); Cape May v. Cape May Transportation Co., 64 N.J.L. 80 (Sup. Ct. 1899); Morristown Auto Bus Co. v. Madison, 85 N.J.L. 59 (Sup. Ct. 1913); Dunn v. City of Hoboken, 85 N.J.L. 79 (Sup. Ct. 1913); Becker v. Pickersgill, 105 N.J.L. 51 (Sup. Ct. 1928). A subsequent grant of such authority, without more, does not serve to validate the measure. The mere inclusion of the power by legislative amendment does not give legal force to a prior local enactment void ab initio for want of such power. The amendment here is not in terms curative legislation, operating prospectively upon the invalid regulation. The validation of the ordinance was plainly not within legislative contemplation. And its subject matter was not re-enacted by the local legislative tribunal after the adoption of the amendment.

It is axiomatic that, barring curative legislation, a local ordinance is utterly without force or vitality unless it constitutes the exercise of power vested in the municipal

body at the time of its adoption. A municipal corporation is a government of enumerated powers, acting by a delegated authority. It is a creature of the Legislature; and it possesses only such rights and powers as have been granted in express terms, or arise by necessary or fair implication, or are incident to the powers expressly conferred, or are essential to the declared objects and purposes of the municipality. It has no inherent jurisdiction to make laws or adopt regulations of government. New Jersey Good Humor, Inc., v. Bradley Beach, 124 N.J.L. 162 (E. & A. 1939); City Affairs Committee v. Jersey City, 134 N.J.L. 180 (E. & A. 1945). The Constitution of 1947, effective January 1, 1948, secures to counties and municipal corporations powers "of necessary or fair implication" or "incident" or "essential" to those granted in express terms; and it enjoins a liberal construction in their favor of the provisions of the Constitution and "of any law concerning" them. Article IV, section VII, paragraph 11.

The inquiry, therefore, is whether the challenged local legislative action was comprehended within the grant of power ...


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