On appeal from the Law Division of the Superior Court, certified by the Supreme Court on its own motion.
For modification -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld and Burling. Opposed -- None. The opinion of the court was delivered by Heher, J. Wachenfeld, J., concurring in result.
The Camden County Park Commission leased to the individual respondent a clubhouse and tennis courts on park lands within its jurisdiction for a term of five years, running from May 29, 1951, for the tennis courts and from August 31, 1951, for the clubhouse; and the essential question is whether the contract is ultra vires and void.
The leased property borders on Newton Lake in Collingswood, New Jersey. The lessee undertook to operate an "all-year-round milk bar" in the clubhouse, known as the Newton Lake Tennis Building, and to provide during the demised term tennis, boating and bicycling facilities for public hire, and to pay rent at the rate of $75 per month for the clubhouse and 10.5 per cent of the gross receipts from the operation of the tennis, boating and bicycling concession. The lessee guaranteed a "rental return from the building," during the term, "of $4500 regardless of the success" of the venture. There was competitive bidding for the concession, and it seems to be conceded that the lessee's was the highest bid. The park commission's purpose was to afford to the public "further recreational opportunities along the waters of Newton Lake." The leased building is a one-story stone structure containing showers, lockers, a small recreation room, a utility room, and rest rooms. The lessee was given possession of the tennis courts on May 29, 1951, and of the clubhouse on August 31, 1951. On September 1 she was arraigned in the Municipal Court of Collingswood on a complaint charging the operation, maintenance and use of the building for business on that day in violation of the local zoning ordinance restricting the area to residential uses, so it is said. On the next succeeding day the lessee was again arraigned in that
tribunal on a complaint alleging the same offense on that day; and a third complaint was made averring that on the same day she did sell ice cream in contravention of a local ordinance forbidding the sale of merchandise on Sunday. The lessee was later convicted on all three complaints and was fined $200 and costs for each of the pleaded offenses.
In this civil action at law in lieu of certiorari the Superior Court reversed the convictions of the plaintiff lessee in the municipal court, adjudged "invalid and without legal jurisdiction and unenforceable as against" both the corporate and individual plaintiffs the cited zoning regulation and the ordinance forbidding merchandising on Sunday, and restrained further interference with them in the performance of the contract of lease.
The basic contention is that the plaintiff park commission is not empowered "to use or permit others to use, under lease, its lands and buildings for other than park purposes," and so the contract of lease under review is a nullity. We find it to be without substance.
The commission is a body politic and corporate created by R.S. 40:37-195 et seq. The essence of the argument is that the corporate body has only the powers enumerated in the statute, and the park lands may not be "used or leased to a third party for any purpose beyond the normal scope of 'park purposes' as defined by R.S. 40:37-238." This section provides that, with certain exceptions not here pertinent, all real estate acquired under the act "for the purpose of public parks shall be forever kept open and maintained as such." Yet what was done here does not constitute a variance from the statutory use. These are but facilities for the enjoyment of the dedicated use, and wholly in keeping with its character. It would seem that reasonable usage of the lands for tennis and the provision of food and beverages are within the normal recreational province of a park, and therefore comprehended in the statutory delegation of general managerial power. Indeed, the clubhouse provides personal conveniences indispensable to the full enjoyment of the park.
The course thus taken is plainly in furtherance of, rather than a deviation from, the essential park use, and so within the directorial discretion.
But the authority exercised here is not left to implication as an essential component of the express grant. Chapter 360 of the Laws of 1939 (N.J.S.A. 40:37-201.1) empowers the commission to "provide and operate, or arrange for the operation of, such facilities for the use and enjoyment of its parks by the public as it may deem to be necessary and expedient"; also, to "provide, at its discretion, by a proper rule or regulation, for the terms upon which and the manner in which all of such facilities may be used," though nothing therein contained "shall be deemed to authorize the commission to issue or consent to licenses, privileges or franchises to individuals or corporations for the operation for private profit of any facility, utility or devise (sic) within the park, except upon terms which will provide for limiting the operation of such license, privilege or franchise to a period not exceeding twenty years in any event." The award of the "franchise" is required to be made to the highest bidder "in open competition," after advertisement as therein specified; and the "license or privilege" shall be subject to revocation "for cause." "All proceeds derived from the operation of such facilities or from any of the operations" of the commission are directed to be used by the commission "for the development and management of its parks, any general or special law to the contrary notwithstanding."
The principle restraining diversion from the essence of a specific dedicated public use, as in Baird v. Board of Recreation Commissioners of South Orange, 108 N.J. Eq. 91 (Ch. 1931), has no pertinency here. There was no breach of the statutory jurisdiction. It is axiomatic that, barring constitutional restraints, ...