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Al Walker Inc. v. Borough of Stanhope

Decided: March 25, 1957.

AL WALKER, INC., A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
BOROUGH OF STANHOPE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



For reversal -- Justices Heher, Oliphant, Burling, Jacobs and Weintraub. For affirmance -- Chief Justice Vanderbilt. The opinion of the court was delivered by Jacobs, J.

Jacobs

The Appellate Division affirmed the trial court's judgment of dismissal on the ground that the plaintiff had no standing to maintain the action. See 42 N.J. Super. 182 (1956). Thereafter the plaintiff appealed asserting a constitutional question under R.R. 1:2-1(a). The defendant has not urged that the plaintiff should have sought certification under R.R. 1:10-2 and we shall assume that the plaintiff's appeal as of right is properly before us.

The plaintiff is a retail seller of trailer homes. Its sales lot is in Roxbury Township, about four miles from the defendant Borough of Stanhope. There are no other retail sellers of trailer homes in the vicinity. When the plaintiff first began business about nine years ago only one of the 14 communities within an 18-mile radius had any ordinance restrictions governing house-trailers. Now all of them have such restrictions; some have the effect of wholly prohibiting the parking of mobile homes for occupancy purposes whereas others have the effect of imposing regulations on their use. The plaintiff's cost of operation has significantly increased because it has been obliged to seek its business at distant places; it formerly did 85% of its business within a radius

of 18 miles but now it only does 15% of its business in that area. Before the Borough of Stanhope adopted its housetrailer ordinance the plaintiff had sold trailers to some residents of the Borough and had received inquiries from other residents; since the ordinance was adopted the plaintiff has made no such sales and received no such inquiries; indeed in two instances the plaintiff felt obliged to reacquire two trailers from residents who could no longer use them in the Borough.

The Borough of Stanhope's ordinance was originally adopted on June 28, 1955. It excluded trailer camps and prohibited the occupancy of any individual trailer as a place of residence for a period exceeding four weeks. Upon the plaintiff's filing of its complaint to set aside the ordinance the Borough repealed it and on September 26, 1955 adopted a new ordinance which now prohibits the occupancy of any trailer as a place of residence except "in an enclosed building or a licensed trailer camp" and sets forth detailed provisions for the licensing and regulation of trailer camps; the annual license fee for a trailer camp is fixed at $200 and an inspection fee of $1 per day per trailer is also imposed. Thereafter the plaintiff amended its complaint, alleging that the ordinance of September 26, 1955 "specifically and by necessary implication forbids and prohibits the parking of mobile homes for use as dwellings and places of human habitation within the limits of the defendant Borough, on lots individually established as sites for such dwellings" and prohibits all persons from conducting trailer camps or parks within the Borough by (a) "the imposition of unreasonable rules and regulations," (b) "the imposition of fees and charges unreasonably high and confiscatory in amount," and (c) "requiring that the sanitary facilities in any trailer shall be sealed by the licensee during the time when it is located at any camp site." Cf. Bellington v. East Windsor Tp., 17 N.J. 558 (1955); Edwards v. Mayor, etc., of Borough of Moonachie, 3 N.J. 17 (1949).

In its answer to the plaintiff's complaint the Borough set forth, as a separate defense, that the plaintiff was not a

proper party to maintain the action; testimony on that preliminary issue was taken before Assignment Judge Hall. At the conclusion of the plaintiff's testimony the Borough's motion to dismiss was granted. Judge Hall indicated that the testimony could properly be viewed as establishing that the plaintiff had lost income as a result of the ordinance and that its loss was actual rather than prospective or speculative; but he doubted that it was "direct" within the meaning of the earlier cases which he intimated might justly be broadened in current application. In the Appellate Division Judge Francis likewise entertained the view that the plaintiff's loss was not sufficiently direct within Koons v. Board of Com'rs of Atlantic City, 134 N.J.L. 329 (Sup. Ct. 1946), affirmed 135 N.J.L. 204 (E. & A. 1947); Musicians' Protective Union, Local 526, etc. v. Jersey City, 4 N.J. Super. 147 (App. Div. 1949); Gurland v. Town of Kearny, 128 N.J.L. 22 (Sup. Ct. 1942); O'Mealia Outdoor Advertising Co. v. Mayor and Council of Borough of Rutherford, 128 N.J.L. 587 (Sup. Ct. 1942); Rosencrans v. Eatontown Tp., 80 N.J.L. 227 (Sup. Ct. 1910). Cf. Appley v. Bernards Tp., 128 N.J.L. 195 (Sup. Ct. 1942), affirmed 129 N.J.L. 73 (E. & A. 1942); Tallon v. City of Hoboken, 60 N.J.L. 212 (E. & A. 1897); Hamblet v. City of Asbury Park, 61 N.J.L. 502 (Sup. Ct. 1898). But cf. Morgan v. Orange, 50 N.J.L. 389 (Sup. Ct. 1888); Thompson v. Ocean Grove, 55 N.J.L. 507 (Sup. Ct. 1893).

Unlike the Federal Constitution, there is no express language in our State Constitution which may be said to confine the exercise of our judicial power to actual cases and controversies. See U.S. Const., Art. III, Sec. II; N.J. Const., Art. VI, Sec. I. Nevertheless, it is clear that we will not render advisory opinions or function in the abstract (New Jersey Turnpike Authority v. Parsons, 3 N.J. 235, 240 (1949)) or entertain proceedings by plaintiffs who do not have sufficient legal standing to maintain their actions. See New Jersey Bankers Ass'n v. Van Riper, 1 N.J. 193 (1948). Cf. Greenspan v. Division of Alcoholic Beverage Control, 12 N.J. 456, 459 (1953); Frankfurter, J., in

Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 149, 71 S. Ct. 624, 95 L. Ed. 817, 842 (1951). In passing upon a plaintiff's standing the court is properly required to balance conflicting considerations and weigh questions of remoteness and degree. In Koons v. Board of Com'rs of Atlantic City, supra, a prerogative writ attack was made on a statute which authorized certain cities along the Atlantic Ocean to adopt ordinances imposing sales taxes. The plaintiff was a resident of Atlantic City, which had adopted a sales tax ordinance, but she owned no real property and paid no personal property or mercantile tax. The court found that the statute was unconstitutional and that the plaintiff had a sufficient standing to have the ordinance set aside; in the language of Justice Heher, the determinative question was whether she had sustained or was "in immediate danger of sustaining, some direct and certain injury as the result of the enforcement of the statute." Though her actual financial interest was no greater than that of all others who would have been obliged to pay the sales tax, she was not simply an interloper and her proceeding effectively served the public interest in striking down an unconstitutional statute.

In our State, perhaps more than any other, the prerogative writ has been broadly made available as a comprehensive safeguard against wrongful official action. Garrou v. Teaneck Tryon Co., 11 N.J. 294, 302 (1953). In Gimbel v. Peabody, 114 N.J.L. 574, 577 (Sup. Ct. 1935) the plaintiff obtained a writ of certiorari to review proceedings by the Township of Pennsauken and others for the operation of a greyhound racing track in the township. The court set aside the proceedings as violative of the anti-gambling provisions of the Constitution; with respect to the plaintiff's capacity to sue, it remarked that he had the standing of a citizen and taxpayer and that measures "to test the legality of proceedings in direct violation of the fundamental law of ...


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