Leyden, Daniel J. Brennan and Schettino. The opinion of the court was delivered by Leyden, J.s.c.
Defendant appeals from the judgment of conviction of violating section 2 of an ordinance of the Board of Health of the Borough of Lincoln Park entitled "An Ordinance to regulate, control and prohibit the keeping of pigs within the limits of the Borough of Lincoln Park, Morris County, New Jersey," in that he kept and maintained pigs in said borough without first having procured a permit therefor.
The ordinance divides the municipality into districts which may be classified as (1) residential, wherein the keeping of pigs is prohibited; and (2) farming, wherein not more than seven pigs may be kept, raised or maintained, provided a permit therefor is obtained from the local board of health.
The pertinent sections of the ordinance are as follows:
No person shall have, keep, raise or maintain any pig or pigs within the said described limits of the Borough of Lincoln Park, without first having procured from the Board of Health of the Borough of Lincoln Park a permit for that purpose. Such permit shall allow the holder thereof to have, keep, raise or maintain on the premises mentioned in such permit, not more than seven (7) pigs.
Section 6. It shall be unlawful for any person owning, keeping, or having the management or control of the premises within the Borough of Lincoln Park, to knowingly permit a violation of any of the provisions of this ordinance upon said premises."
The ordinance under review was adopted December 21, 1943. The defendant manages a farm of approximately 120 acres located in the farm district upon which, since 1929, from 25 to 40 pigs have been kept.
The defendant applied for a permit to keep more than seven pigs and was refused. He was convicted in the municipal
court and on appeal in the Morris County Court after a trial de novo.
The defendant insists the ordinance, in so far as it limits the number of pigs to seven, is unconstitutional and void in that it violates the equal protection clause of the 14th Amendment of the United States Constitution, and the due process of law provisions of the Federal and State Constitutions. He argues that the ordinance does not take into account the area of the land owned and the number of pigs permitted, and therefore he is denied equal protection since he may now keep only seven pigs on the farm and a neighbor owning a small ...