This is a motion on the part of the defendant Garden Construction Co. to dismiss plaintiff's complaint. The cause of action, as set forth in the complaint, is that on March 17, 1951 the defendants other than Garden Construction Co. were the owners of a large tract of land in the City of Newark which is described in paragraph 1 of the complaint; that on March 22, 1951 those defendants conveyed to the defendant Garden Construction Co. a portion of the large tract; that conveyance was made by deed recorded on March 26, 1951 and that the portion conveyed constitutes part of a subdivision as defined in R.S. 40:55-15 et seq. , and "was made without the approval of such subdivision by The City of Newark, as required by the statute, R.S. 40:55-15, as amended." It is charged in the complaint that said conveyance is therefore invalid and judgment is sought to set aside and invalidate said deed and also for the other penalties provided in the statute.
The defendants allege as grounds for dismissing the complaint: (1) the complaint fails to state a claim upon which relief can be granted; (2) N.J.S.A. 40:55-15, as amended, under which the above entitled cause is brought is, insofar as the said act is here sought to be applied to the
conveyance of the defendant Garden Construction Co., unconstitutional in that it contravenes (a) the Fourteenth Amendment to the Constitution of the United States, constituting a deprivation of property without due process of law, (b) Section X of Article I of the Constitution of the United States, said act R.S. 40:55-15 impairing the obligation (the deed) of the defendant Garden Construction Co., and (c) Article I, Section I of the Constitution of the State of New Jersey, depriving defendant Garden Construction Co. of due process of law and also impairing the obligation of its contract (the deed); (3) the plaintiff has failed to join in this action certain indispensable parties named in the notice. This latter objection would not prevail if this action were otherwise maintainable, for then the court could exercise its power to permit the plaintiff to amend its complaint and bring in any parties deemed indispensable.
The statute known as the "Planning Act," sometimes referred to as the "Subdivision Act" (N.J.S.A. 40:55-15, L. 1950, c. 67, effective April 25, 1950) provided as penalties for a violation: (a) a penalty of not less than $100 for each lot or parcel sold, and (b) the right to enjoin the transfer or sale or agreement by action for injunction. Such was the statute in effect when the deed now sought to be set aside was made and the grantee's estate became vested on March 22, 1951 in the premises described in the complaint.
The right to set aside and invalidate a conveyance such as is here involved is claimed to be derived from the statute in the complaint mentioned, N.J.S.A. 40:55-15. That portion of the statute which purports to give a municipality a right to maintain an action "to set aside and invalidate any conveyance made * * *" was enacted, L. 1951, c. 213, sec. 1, p. 768, approved and effective on June 13, 1951, and did not exist when the deed to the Garden Construction Co. was delivered and recorded and its estate became vested.
The statute upon which plaintiff's suit to set aside the deed of conveyance is rested provides:
"If any owner or agent of any owner of any land transfers or sells or agrees to sell any land which forms a part of a subdivision as defined in this Title, before such subdivision has been approved by the approving agency, whether the planning board or governing body, the municipality in addition to any other remedy shall be entitled to institute and maintain a civil action in the Superior Court of New Jersey to restrain the transfer or sale or the performance of the agreement of sale and to set aside and invalidate any conveyance made pursuant to such transfer or sale. In any such action the transferee, purchaser or grantee of such land may be made a party or, if not made a party, may intervene therein, and the said transferee, purchaser or grantee shall be entitled to a lien upon the whole parcel, tract or plot of land from which the subdivision was made to secure the return of any deposit made or purchase price paid, and, also, a reasonable search fee, survey expense and title closing expense, if any. * * *"
The question calling for a decision is whether the June, 1951 amendment to the statute, providing for the first time that for a violation of the statute there may be maintained by the municipality in which lie the conveyed premises an action "to set aside and invalidate" the deed of conveyance, is only prospective in its operation and not applicable to conveyances made and estates vested prior to its enactment. A collateral question is whether such enactment, if by its language it is made to operate retroactively, does not offend the constitutional guarantees against the impairment of contracts and the taking of property without due process of law.
In Kopczynski v. County of Camden , 2 N.J. 419 (1949), our Supreme Court said:
"A cardinal rule in the interpretation of statutes is that words in a statute ought not to have a retrospective operation unless they are so clear, strong and imperative that no other meaning can be annexed to them, or unless ...