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Gilbert v. Town of Irvington

Decided: January 23, 1956.

GEORGE GILBERT AND SENTINEL SALES CORPORATION, A CORPORATION OF NEW JERSEY, PLAINTIFFS-APPELLANTS,
v.
TOWN OF IRVINGTON, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Law Division, Essex County.

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

Wachenfeld

[20 NJ Page 433] This is an action in lieu of prerogative writ contesting the validity of an ordinance of the Town of Irvington which establishes a license fee of $100 per year for each coin-operated milk vending machine operated within the town limits.

The judgment below directed the entry of judgment in favor of the defendant, and we granted certification prior to argument in the Appellate Division.

The plaintiffs are engaged in the retail sale and distribution of milk to the public through coin-operated milk vending machines, and during August and September 1954 they applied for and were issued licenses by the Irvington Department of Health permitting them to sell and dispense milk from machines.

The fee charged at that time for the licenses was $2.50 per machine, pursuant to an ordinance applicable to all stores or vehicles selling milk and milk products.

In March 1955 Irvington enacted an ordinance specifically regulating the distribution of milk through coin-operated vending machines. The ordinance provides that before a machine may be installed, application must be made to the License Bureau of the Town of Irvington, whereupon approval must be given by the Health Department, the Chief of Police, the Fire Department and the Building Superintendent.

Section 6 of the ordinance imposes a license fee of $100 for each machine applied for. This is the section under attack in these proceedings.

Prior to the adoption of the 1955 ordinance, the plaintiffs had invested substantial sums in the purchase and installation of milk vending machines under the licenses which had been issued to them the year before. They also entered into rental agreements with the property owners where the machines were located.

The economic impact of the ordinance upon the vending machines in question results in a levy of almost 25% of the profits derived from the machines, and little else need encumber the record as to the character and details of the other financial equations and transactions except to say that in some respects the record is far from complete.

The record shows each application for a license for a milk vending machine was processed by the Fire Department, the Police Department and the Health Department and that the

work of the various departments consumed about three days per ...


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