Eastwood, Goldmann and Francis. The opinion of the court was delivered by Francis, J.c.c.
The Village of South Orange appeals from two aspects of an adverse judgment entered in the Law Division of this court. The contention is that the court erred: (1) in setting aside a resolution of the village board of trustees denying a scavenger license to respondent, and (2) in directing the immediate issuance of such a license to respondent.
A recitation of some history is necessary to a complete understanding of the problem. In 1945 the village adopted
an ordinance making it unlawful for anyone to collect or remove ashes, garbage or other refuse matter within its confines without having procured a license from the board of trustees, and providing that not more than one such license should be issued. Under the enactment the fees to be charged the users of the licensee's services were to be fixed by resolution of the board. A resolution was adopted fixing a scale of rates which might be charged to the various home owners and occupiers of property. By another resolution an exclusive license was granted to a collector who was required to operate in the manner prescribed by the ordinance and to charge for the service in accordance with the rates established by the governing body.
The ordinance and resolutions were attacked by a taxpayer as an unreasonable exercise of municipal authority, and the attack was sustained. McKim v. South Orange , 133 N.J.L. 470 (Sup. Ct. 1945). The Supreme Court pointed out that the Legislature had authorized two, and only two, methods of dealing with the refuse collection problem. The municipality might do the work itself or it might contract with someone else to do it. If the latter course were chosen then, since the expenditure involved was in excess of $1,000 no valid contract could be made until bids were publicly advertised for and unless the agreement represented the lowest responsible bid. N.J.S.A. 40:66-1; N.J.S.A. 40:66-4; N.J.S.A. 40:50-1. It then said:
"The governing body here undertook to act under its municipal authority to license and regulate, but in a manner for which we find no justification in the statutes. R.S. 40:52-1 grants governing bodies the power to license and regulate certain occupations and businesses, inter alia scavengers; but the selecting of one representative of an occupation or craft to be licensed, in exclusion of all others of his kind, whereby the inhabitants of the municipality are obliged to employ him, and him only, to perform an essential function at a rate of compensation to be paid by them but fixed from time to time by the governing body is not, we think, within the reasonable exercise of the statutory licensing power." (Page 472)
"The proposed method is, we think, in violation of a public policy, implicit in these and other statutes, that public work exceeding a
limited sum shall not be awarded except upon advertisement and to the lowest responsible bidder. The evils attendant upon an award without open bidding are not less under license than under direct contract. Splitting the total cost among the property-users by a system that leaves to them no choice but to incur and pay the expense does not alter the fact that in essence an award of public work at a price of many thousands of dollars is being made to a private contractor without competition in bidding. Granted that refuse disposal has a direct bearing upon public health; the legislature has nevertheless declared the above mentioned public policy with respect thereto. If relaxation of that policy is desirable, it should be had from the Legislature * * *."
Apparently stimulated by this opinion, the Legislature adopted an act, effective April 12, 1946, which seems to have been designed to achieve the result sought by the village. N.J.S.A. 40:162 A -1, 2. Under section 1 thereof, the governing body of any village in counties of the first class may provide by ordinance for the collection of refuse and the licensing of public scavengers. And under section 2 such a governing body "By ordinance * * * may limit the number of public scavenger licenses * * * to one or more in accordance with the needs and best interests of the village."
Thereafter on June 17, 1946 appellant adopted a new ordinance, the one involved here, for the licensing and regulation of public scavengers. However, examination reveals what of necessity the village concedes in its brief, that it is merely a general licensing and regulating enactment. It assesses license fees to be paid by "any person or persons authorized * * * to furnish scavenger service" (sec. 3); says that "each licensee" and his employees shall wear identification badges (sec. 6.3); that "every licensee" shall give notice of the collection days; that "licensees" shall not place certain receptacles along the curb; and that "every licensee" must make the service available to all residents of the ...