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City of Newark v. Zemel

Decided: January 11, 1952.

CITY OF NEWARK, PLAINTIFF-APPELLEE,
v.
NATHAN E. ZEMEL, DEFENDANT-APPELLANT



On appeal from conviction.

Francis, J.c.c.

Francis

The defendant appeals from two judgments of conviction in the Municipal Court of Newark for violations of section 1047, paragraph 2, of the ordinances of that city, requiring that in each dwelling, tenement house or place of abode "there shall be at least (1) water closet provided for each apartment or family."

The facts of the alleged violations are not in dispute. It was proved that at one of the premises owned by the defendant, 20 Rutgers Street, there was but one toilet, located in the hall on the second floor, to serve the needs of the two tenants living on that floor. At the other premises in question, 220 Prince Street, there were two families living on the second floor and two on the third floor. Only one toilet was located

on each floor to serve the two families living there, access to each toilet being gained by doors opening therein from each of the apartments served.

The plaintiff offered proof to establish the reasonableness and necessity for this provision of the ordinance. The reasons advanced were: (1) that the sharing of a common toilet by two tenants results in the failure of either or both to keep the toilet clean, thereby causing an unhealthful condition to come about; and (2) the possibility of the transfer of infections and body lice from one family to another, or even from strangers who might have access to a common toilet. The plaintiff also showed that one of the premises is located in the "official slum belt" of the city.

The defendant offered no testimony. At the close of the plaintiff's proofs he rested and moved for judgments of acquittal.

It is not contended that the plaintiff is without power to enact ordinances to secure the health and well-being of its citizens. The claim is made that this ordinance must be declared void because it is arbitrary and discriminatory.

The first phase of the defendant's attack on the score of arbitrariness is based upon the fact that both of the dwelling houses involved are tenement houses and that the tenement house statute (R.S. 55:8-3) requires at least one toilet for every two families in such houses erected prior to March 25, 1904. There is no proof in the record as to when these buildings were erected. In any event, the defendant does not contend that the ordinance must fall merely because it exacts a higher standard than that laid down by statute. He urges, rather, that the ordinance is invalid unless it be shown that it was "necessary * * * for the promotion of the general health and welfare" of the inhabitants of the city. Thus the defendant acknowledges, as he must, that a municipality may exceed the minimum demands of the statute so long as its enactments are necessary to the promotion of the general health and welfare. The question presented to the court, therefore, is merely whether the proofs demonstrate

that the ordinance bears a reasonable and necessary relation to the general health and welfare.

In determining this question it is obvious that the court may not substitute its judgment for that of the local legislative body as to the wisdom of the particular measure. Peoples Rapid Transit Co. v. Atlantic City , 105 N.J.L. 286 (Sup. Ct. 1929), affirmed on opinion below, 106 N.J.L. 587 (E. & A. 1930); Mansfield & Swett v. Town of West Orange , 120 N.J.L. 145 (Sup. Ct. 1938). To do so would be to exercise the legislative function and nullify the grants of power given by the Legislature to municipalities to regulate their affairs. It has been declared that where the subject matter of a regulation is within the police powers of the municipality it must be presumed that the ordinance is reasonable unless the contrary is shown. Wagman v. City of Trenton , 102 N.J.L. 492 (Sup. Ct. 1926). Further, the 1947 Constitution provides that ...


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