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Wagner v. Mayor

Decided: October 9, 1956.


Weintraub, J.s.c.


[42 NJSuper Page 197] The complaint attacks the validity of a rent control ordinance adopted by the City of Newark.

The ordinance contains a finding of an emergency with respect to housing and declares the ordinance "to be necessary and designed to protect the public health, safety and welfare, and that this ordinance is adopted pursuant to the police powers of the City of Newark."

Plaintiffs move for summary judgment, asserting the ordinance is beyond the power of the municipality and violative of the Federal and State Constitutions. Various municipalities interested in the subject matter petitioned for leave to file a brief as amici curiae. The application was granted.

The motion does not challenge the determination by the city of the existence of an emergency, and hence for the purposes of the motion that finding must be accepted.

The ordinance establishes the Newark Housing Rent Control Commission, which it empowers to adopt rules and regulations to further the objectives of the ordinance with respect to housing within its ambit and to hear and determine applications for rental changes. The ordinance prohibits rental charges in excess of an authorized amount; prohibits a landlord to evict, dispossess or institute proceedings therefor against any tenant paying the lawful rental, whether or not the term of lease has expired, unless the landlord shall first obtain a certificate of eviction from the commission, which certificate may issue for any of a number of reasons set forth in the ordinance. The ordinance provides for a fine not exceeding $500 for any violation thereof.


Plaintiffs initially contend municipalities are without power to adopt ordinances regulating rental charges and evictions no matter how critical the local scene may be.

It is now thoroughly settled that the police power will support state legislation of such character in emergent circumstances. Block v. Hirsh , 256 U.S. 135, 41 S. Ct. 458, 65 L. Ed. 865 (1921); Edgar A. Levy Leasing Company,

Inc. v. Siegel , 258 U.S. 242, 42 S. Ct. 289, 66 L. Ed. 595 (1922); Chastleton Corporation v. Sinclair , 264 U.S. 543, 44 S. Ct. 405, 68 L. Ed. 841 (1924); Jamouneau v. Harner , 16 N.J. 500 (1954), certiorari denied 349 U.S. 904, 75 S. Ct. 580, 99 L. Ed. 1241 (1955); Brookchester, Inc. v. Ligham , 17 N.J. 460 (1955). Plaintiffs do not quarrel with this proposition, but say the police power delegated to municipalities is something less than the total police power of the State and is insufficient to sustain the ordinance. There are two facets to this position: (a) that our statutes do not purport to grant power to enact the ordinance, and (b) if they do, they transcend constitutional limits upon the State's authority to delegate the police power.


There is no general statute which in so many words authorizes the ordinance, but defendant relies upon the Home Rule Act and upon the Optional Municipal Charter Law as well, since it adopted one of the plans therein prior to the enactment of the ordinance. Reference is made to R.S. 40:48-2 of the Home Rule Act and section 2-5 of the Optional Municipal Charter Law (N.J.S.A. 40:69 A -30).

R.S. 40:48-2 reads:

"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 necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law."

It thus empowers any municipality to adopt such ordinances as it deems 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." The

tremendous sweep of this language is apparent. If the particular aspect of the police power of the State which sustains rent control statutes does not fall somewhere within the breadth of the quoted phrase, I would not know where else to place it. If the municipality lacks power to protect the public in a housing emergency, its want of power cannot be attributed to inadequacy of the language of the statute, but rather to some limitation arising from an overriding consideration.

The power of a municipality to adopt a rent control ordinance was denied in Ambassador East, Inc. v. City of Chicago , 399 Ill. 359, 77 N.E. 2 d 803 (Sup. Ct. 1948) and Tietjens v. City of St. Louis , 359 Mo. 439, 222 S.W. 2 d 70 (Sup. Ct. 1949). Both jurisdictions, however, adhere to the view that the general welfare clause of enabling statutes is not a source of additional power beyond that necessary to carry into effect powers specifically granted. See, generally, 37 Am. Jur., Municipal Corporations, sec. 283, p. 916.

That approach to municipal authority contrasts sharply with the view of our Supreme Court in Fred v. Mayor and Council of Borough of Old Tappan , 10 N.J. 515 (1952). There it was held that a municipality may regulate the removal of soil. The result was grounded squarely on the broad provisions of R.S. 40:48-2, as to which the court said (10 N.J. , at page 520):

"* * * This interpretation of R.S. 40:48-2 as an express grant of general police powers to municipalities has been made impregnable by the continued legislative acquiescence therein, by the mandate of Article IV, Section VII, paragraph 11 of the Constitution of 1947 that acts concerning municipalities be liberally construed, and by the adherence thereto of the more recent judicial decisions, Ricca v. Board of Commissioners , 1 N.J. Super. 139, 142-143 (App. Div. 1948); Edwards v. Borough of Moonachie , 3 N.J. Super. 10, 14 (App. Div. 1949), reversed 3 N.J. 17 (1949); Michaels v. Mayor and Council of Township Committee of Tp. of Pemberton , 3 N.J. Super. 523, 527 (Law Div. 1949); City of Newark v. Charles Realty Co. , 9 N.J. Super. 442, 457 (Cty. Ct. 1950). If more be needed, we refer to the recent decision in State v. Mundet Cork Corp., supra , 8 N.J. 359, 369 (1952), wherein we held that the enactment of an air pollution ordinance was 'a function of the

police power conferred on municipalities by R.S. 40:48-2 (originally enacted in 1917) for the protection of the welfare of their residents.'

Plainly, therefore, R.S. 40:48-2 must be considered as an express grant of broad general police powers to municipalities. * * *"

As I read Stell v. Mayor and Aldermen of Jersey City , 95 N.J.L. 38 (Sup. Ct. 1920), it does not deny the power here asserted, but if it should be read otherwise, the decision is no longer authoritative.

A municipal rent control ordinance was sustained in Warren v. City of Philadelphia , 382 Pa. 380, 115 A. 2 d 218 (Sup. Ct. 1955), one basis of the holding being a statute authorizing legislation for the health and welfare of the citizens. In Heubeck v. Mayor and City Council of Baltimore , 205 Md. 203, 107 A. 2 d 99 (Ct. App. 1954) and F.T.B. Corporation v. Goodman , 300 N.Y. 140, 89 N.E. 2 d 865 (Ct. App. 1949), rent control ordinances were found invalid because of conflict with state law rather than because of lack of power in absence of such conflict, and will be considered further under "II" below in connection with the issue of conflict which plaintiffs here assert. Neither case is particularly helpful in the immediate inquiry as to the proper interpretation of R.S. 40:48-2.

The Optional Municipal Charter Law delegates broad powers. Section 2-4 thereof (N.J.S.A. 40:69 A -29) provides that "Each municipality governed by an optional form of government pursuant to this act shall, subject to the provisions of this act or other general laws, have full power to * * * (b) adopt and enforce local police ordinances of all kinds." The term "general law" is defined in section 2-3 (N.J.S.A. 40:69 A -28) to include any law, not inconsistent with that act, "heretofore or hereafter enacted which is by its terms applicable or available to all municipalities," and thereby the provisions of the Home Rule Act are made applicable. Additionally, section 2-5 (N.J.S.A. 40:69 A -30) provides:

"The general grant of municipal power contained in this article is intended to confer the greatest power of local self-government consistent with the Constitution of this State. Any specific enumeration of municipal powers contained in this act or in any other general

law shall not be construed in any way to limit the general description of power contained in this article, and any such specifically enumerated municipal powers shall be construed as in addition and supplementary to the powers conferred in general terms by this article. All grants of municipal power to municipalities governed by an optional plan under this act, whether in the form of specific enumeration or general ...

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