Conford, Freund and Haneman. The opinion of the court was delivered by Conford, J.A.D. Haneman, J.A.D. (concurring).
Defendants were convicted in the Municipal Court of the City of Newark of violating N.J.S.A. 32:1-146.6 and 146.7 (L. 1953, c. 171) (hereinafter referred to as the Terminal Act), which makes it a penal offense to sell merchandise at any terminal, including airports, operated by The Port of New York Authority ("Port Authority" hereinafter), without authorization by that agency. The evidence at the trial established that the defendants had for some time prior to March 28, 1958 been selling food from a lunch-wagon truck to the employees of Newark Air Service, a sub-lessee of the Port Authority at the Newark Airport; that they had no authorization from the Port Authority to do so; and that they continued this activity on the date mentioned in defiance of a direction from a Port Authority police officer to desist and remove their truck from the airport.
The conviction was affirmed by the Essex County Court on appeal by trial de novo on the record made in the municipal court. R.R. 3:10-2, 10.
In the defendants' brief on the present appeal, of nine specific questions stated as involved, six are identified by them as "not raised below." We find, moreover, that one of the questions not so identified was also not raised below. See R.R. 1:7-1(c). Some of the defenses urged in the lower tribunals are abandoned here. Thus the argument made before us is tantamount to the submission of a substantially different case from that passed upon by the trial courts. This presentation is repugnant to the spirit of our practice which contemplates that, except in extraordinary situations, as where public policy or jurisdiction are involved, a party shall make his points in the court of first instance before urging them as grounds on appeal. Domestic
Fuel Co. v. American Petroleum Corp. , 6 N.J. 538, 542-544 (1951). Of the questions not raised below, therefore, we intend to treat only one, that which challenges the statute upon which the prosecution was based as denying the equal protection of the laws because devoid of a norm or standard to guide the agency in authorizing the sale of merchandise at the terminal. This issue involves an important question of public concern which has not heretofore been passed upon by our courts and should be settled.
So far as here material the statute (Terminal Act) underlying the conviction reads as follows (L. 1953, c. 171, section 1; N.J.S.A. 32:1-146.6):
"The port of New York Authority (hereinafter called the "Port Authority") having duly adopted the following rules and regulations, hereinafter set forth in this section, in relation to peddling, soliciting of business, entertaining, begging or loitering at, on or in air, bus or marine terminals operated by it within the territorial limits of the State of New Jersey, the penalties and procedures for its enforcement prescribed in section two shall apply to violations thereof.
(1) No person, unless duly authorized by the Port Authority, shall, in or upon any area, platform, stairway, station, waiting room or any other appurtenance of an air or bus terminal, owned or operated by the Port Authority, or in or upon any area, bulkhead, dock, pier, wharf, warehouse, building, structure, shed, waiting room or any other appurtenance of a marine terminal, owned or operated by the Port Authority:
(a) sell, or offer for sale any article of merchandise; or
(b) solicit any business or trade, including the carrying of baggage for hire; the shining of shoes or bootblacking; * * *
Section 2 of the Terminal Act (N.J.S.A. 32:1-146.7) provides for penalties for its violation and methods of enforcement thereof.
The underlying authority for the promulgation of rules and regulations by the Port Authority appears to be Article XVIII of the Compact of April 30, 1921 between the States of New York and New Jersey creating the Port Authority, which declares that "the port authority is hereby authorized
to make suitable rules and regulations * * * which, when concurred in or authorized by the legislatures of both states shall be binding and effective upon all persons and corporations affected thereby." R.S. 32:1-1, 19. Article XIX enacts that the two states shall provide penalties for violations of any order, rule or regulation of the authority and for the enforcement thereof. R.S. 32:1-20. See the supplemental agreement of the states, enacted, for New Jersey, by L. 1951, c. 205 (N.J.S.A. 32:1-146.1 to 146.3).
In any case, defendants do not here argue that the rules and regulations mentioned in the Terminal Act were adopted without statutory authority and we give no further attention to any such question.
The strict question presented, in the language of defendants' brief, is whether the Terminal Act "violates the equal-protection clause of the Federal Constitution" for the reason that "no norm or standard is provided under which the Port Authority is to grant or withhold authorization of sales at the Newark Airport." The constriction of the issue before us is highlighted by the express concession by defendants that they are not concerned with the practice (emphasis by defendants) of the Port Authority under the statute, in the matter of such authorizations. The gist of the argument is that the statute itself is void as giving the Port Authority what is described as an absolute and unfettered "licensing power over a many-faceted area of trade and business," easily susceptible of arbitrary and discriminatory administration, citing Librizzi v. Plunkett , 126 N.J.L. 17 (Sup. Ct. 1940); Duff v. Trenton Beverage Co. , 4 N.J. 595, 609 (1950).
The essence of the principle which defendants invoke is rationalized by Mr. Justice Heher in the Librizzi case, supra , as follows (126 N.J.L. at pages 21, 22):
"It is elementary that an ordinance which vests in local administrative officers an uncontrolled discretionary authority to grant such business license -- it is not of the class of businesses that may be forbidden ...