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Fred v. Mayor and Council of Borough of Old Tappan

Decided: November 17, 1952.

WALTER B. FRED, ET ALS., PLAINTIFFS-APPELLANTS,
v.
MAYOR AND COUNCIL OF THE BOROUGH OF OLD TAPPAN, DEFENDANT-RESPONDENT



On appeal from the Law Division of the Superior Court; certified by the Supreme Court on its own motion while pending in the Appellate Division of the Superior Court.

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

Vanderbilt

The plaintiff landowners instituted this action in the Law Division of the Superior Court to test the validity of an ordinance of the defendant borough regulating the removal of soil from lands within its confines. From the judgment of that court sustaining the ordinance the plaintiffs took an appeal to the Appellate Division of the Superior Court which we have certified here on our own motion.

Two questions are presented on this appeal: does a municipality have the authority to enact an ordinance regulating the removal of soil, and if so, does the ordinance here under attack come within the limits of that authority? We shall address ourselves to these two questions in the order posed.

I.

The defendant contends that the authority to pass such an ordinance is conferred on it by Article IV, Section

VII, paragraph 11, of the Constitution of 1947 which provides:

"The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor. The powers of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law."

It is urged upon us that this clause of the Constitution of 1947, which had no counterpart in its predecessor constitution, introduced a new concept of home rule into the law of this State, being, in effect, a direct grant of the police power to all municipalities. In support of its position the defendant refers us to certain of the proceedings of the Constitutional Convention of 1947, I Convention Proceedings Record, 400-403, 449, 450, 763. We find no merit to this contention of the defendant. The quoted provision of the Constitution on its face does not purport to be a grant of general police powers to all municipalities, its plain language is not susceptible of being so construed, the proceedings of the Constitutional Convention referred to do not indicate that it was so intended, and during the five years since its adoption our courts have never so interpreted it. On the contrary, it is well settled in this State that a municipality has only those powers granted to it by statute, albeit by virtue of the constitutional provision here under discussion those powers are to be liberally construed in favor of the municipality and express grants of power are to be deemed to include "those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto." Magnolia Development Co. Inc. v. Coles, 10 N.J. 223, 227 (1952); State v. Mundet Cork Corp., 8 N.J. 359, 370 (1952); Borough of Jamesburg v. Hubbs, 6 N.J. 578, 584 (1951); Edwards v. Mayor, etc., of Borough of Moonachie, 3 N.J. 17, 22 (1949).

Perhaps suspecting the weakness of its first alleged source of authority, the defendant next points to R.S. 40:48-2 as containing the necessary statutory grant of power. It provides:

"Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be ...


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