On certification granted.
For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.
On December 26, 1957 the Borough of Waldwick passed an ordinance which provided that no commercial vehicles having a combined gross weight of vehicle and load in excess of five tons should be permitted to use any municipally owned streets, with the exception of East Prospect Street between Franklin Turnpike and State Highway 17, where only trucks having a gross loaded weight of 15 tons or under would be permitted. The ordinance was approved by the State Director of Motor Vehicles pursuant to R.S. 39:4-8 and does not apply to county or state roads running through the borough.
One of the plaintiffs, Samuel Braen, Inc., owns a fleet of heavy-duty trucks and leases them to the other plaintiff,
Braen Sand & Gravel Company, a corporation which processes sand and gravel. The inventory site of the latter corporation is located on Brookside Avenue in Wyckoff, New Jersey. From this site, approximately 15 trucks carrying loads of sand and gravel are dispatched each day to plants manufacturing concrete in Hackensack, Ridgefield and Englewood, New Jersey. Each truck makes an average of five round trips daily, weighing about 35 tons when loaded and 13 tons when empty.
The principal road used by the trucks to reach their destinations in the southeastern portion of Bergen County is State Highway 17, an important north-south artery lying to the east of the Brookside Avenue inventory terminus. For a number of years in the past, plaintiffs have directed their trucks to State Highway 17 via two alternate routes, each one of which is used for about one-half of the trips made on any given day. The first route runs in a southeasterly direction on Franklin Turnpike to its intersection with State Highway 17. The second follows the Franklin Turnpike to its intersection with East Prospect Street and then runs almost due east along East Prospect Street to where it connects with State Highway 17. The segment of East Prospect Street formerly traversed by the trucks lies entirely within the Borough of Waldwick. Since the ordinance in question restricts East Prospect to commercial vehicles with a gross loaded weight of under 15 tons, plaintiffs' loaded trucks are now precluded from using that street to reach State Highway 17.
Plaintiffs brought this suit to have the ordinance declared invalid as being unreasonable, arbitrary and discriminatory and, therefore, ultra vires. They also seek an injunction restraining the borough from enforcing the provisions of the ordinance. The trial court ruled in favor of the borough, and plaintiffs appealed to the Appellate Division. We granted certification on our own motion.
Only one statute need be considered, since the borough disclaims any reliance on R.S. 40:67-16.1 et seq., which permits the establishment in any municipality of a system
of truck routes. The pertinent enactment is R.S. 39:4-197, which is part of the chapter on "Traffic Regulation" and provides:
"No municipality shall pass an ordinance or resolution on a matter covered by or which alters or in any way nullifies the provisions of this chapter or any supplement to this chapter; except that a municipality may pass ordinances or resolutions, or by ordinances or resolutions may authorize the adoption of regulations by the board, body or official having control of traffic in the public streets, ...