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Bellington v. Township of East Windsor

Decided: March 14, 1955.

WILLIAM BELLINGTON, JOHN J. CLARK AND ELIZABETH CLARK, PARTNERS TRADING AS EAST WINDSOR TRAILER PARK, AND JOHN BROWN, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF EAST WINDSOR, A MUNICIPAL CORPORATION, DEFENDANT-RESPONDENT



On appeal from 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 Heher, J.

Heher

We are concerned here with the legal sufficiency of a local ordinance to "license and regulate" trailer camps and camp sites within the municipality, adopted May 6, 1953.

The ordinance is essentially regulatory directed to the problems peculiar to trailer camps and camp sites. It embodies measures related to the provision of potable water and adequate sanitary facilities, overcrowding, the disposal of garbage, ashes and waste matter, the maintenance and use of cesspools, septic tanks and plumbing fixtures, the lighting of the camp grounds and toilet facilities, drainage, grading, the observance of health practices and the requirements of law and good order. It prescribes a "license fee" of $200 per annum for a "trailer camp or camp site" and $2 "per calendar week per trailer," reduced to $1 for "any trailer parked in a camp three days or less," which "said fee is hereby expressly declared to be imposed for revenue"; and this "license fee" is denounced "as enacted for purposes of

taxation, not regulation," and "prohibitory and confiscatory," yet severable from the "regulatory and administrative" provisions of the ordinance which stand unchallenged.

The contention of pro tanto invalidity was overruled by the Law Division of the Superior Court, and the Appellate Division affirmed the judgment. 32 N.J. Super. 243 (1954). The case is here under Article VI, section V, paragraph 1(a) of the 1947 Constitution, providin for an appeal of right in cases involving a substantial and not merely colorable constitutional question. See State v. Pometti, 12 N.J. 446 (1953).

The argument is that the "municipal purpose, in adopting the license fee provisions, was to impose a tax," and a license fee "imposed as a tax is equally bad, standing alone or accompanied by separable regulatory provisions." And this "notwithstanding the language" of R.S. 40:52-2, on the authority of Salomon v. Jersey City, 12 N.J. 379 (1953). But the Salomon case does not go so far.

It cannot be gainsaid that a business, occupation or activity having a potential for harm to the public weal in matters of health, safety, morals, or property is the subject of reasonable regulation to obviate or eradicate the inimical influence; and tourist or trailer camps are by their very nature in this category. This is but the exercise of the police power to a legitimate public end.

In New Jersey such regulation is a municipal function by legislative grant. Under R.S. 40:52-1(d), as amended by L. 1948, c. 425, the local governing body "may make, amend, repeal and enforce ordinances to license and regulate: (d) * * * trailer camps and camp sites, * * *." And the next succeeding section, R.S. 40:52-2, empowers these local agencies of government to "fix the fees for all such licenses, which may be imposed for revenue, * * *."

In Edwards v. Mayor & Council of the Borough of Moonachie, 3 N.J. 17 (1949), we sustained, as within this statutory power, a local ordinance which combined both police and tax measures. And in Independent Warehouses, Inc., v. Scheele, 134 N.J.L. 133 (E. & A. 1946), affirmed

331 U.S. 70, 67 S. Ct. 1062, 91 L. Ed. 1346 (1947), the sale of coal storage service was the business regulated and taxed by local ordinance under the same grant of power. The statute, R.S. 40:52-1(g)-2, was there held to concern "a license or privilege tax or excise levied for both revenue and regulation under the police power * * *." The statutorily-provided "license" was defined as "a means of regulating and taxing privileges and occupations and the use and disposal of property," a power contained within reasonable ...


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