On motion for summary judgment.
This is a motion for summary judgment in an action in lieu of prerogative writ under the Declaratory Judgments Act, N.J.S.A. 2 A:16-50 et seq. , to test the validity of a municipal ordinance requiring a municipal license for beauty shops regulated and licensed by the State Board of Beauty Culture Control in the State Board of Health under the State Beauty Culture Control Act.
The plaintiff, a local hairdresser operating a beauty salon in the Township of Teaneck under a state license, obtained a municipal license and paid the fee exacted therefor under protest. He is joined by coplaintiffs, the Bergen County and the New Jersey State Hairdressers Associations because of their interest in the determination of the issue herein on behalf of the hairdressers in other municipalities of the county and State subject to similar municipal licensing ordinances.
The Attorney General and the State Board of Beauty Culture Control have been joined as codefendants with the Township of Teaneck to comply with the requirements of R.R. 4:37-2 in cases where the validity of an ordinance affecting the public interest is drawn in question.
There is no genuine issue as to any material fact on the motion for summary judgment which is submitted on oral
argument and briefs for determination of the single issue of municipal authority to license beauty shops.
By an act of the State Legislature approved June 29, 1935 (L. 1935, c. 307, p. 971; R.S. 45:4A-1-35) the Legislature created and established the State Department of Beauty Culture Control governed by a Board of Beauty Culture Control vested with full, complete and adequately delineated powers to regulate, control and license beauty culture shops and premises, managers, operators, teachers, students, schools, with ample and adequate provision for examination, inspection and enforcement of the regulations as to personal skills, safety of the operations and equipment, sanitary control of the personnel, equipment and premises with special statutory jurisdiction in the county and district courts for enforcement of penalties provided for violation and special injunctive relief provided in the Superior Court to present and restrain any violation of the act.
The Legislature has expressly reserved to municipalities the power to regulate the opening and closing of beauty parlors on Sunday and holidays and to regulate the hours of opening and closing on week days, N.J.S.A. 40:48-2.1, and expressly excluded the licensing power of municipalities from licensing or regulating any person holding a license or certificate issued by any department, board, commission or other agency of the State, N.J.S.A. 40:52-1.
On November 5, 1940 the defendant Township of Teaneck adopted the municipal licensing ordinance under attack, entitled "An Ordinance to License Barber and Beauty Shops," which was subsequently amended and codified to read as follows:
"Section 1. Every barber and beauty shop in the Township of Teaneck shall be licensed yearly by the Department of Health, which license shall be granted after an inspection of each premises has been made to determine the compliance thereof with the State Boards' Rules and Regulations governing such barber and beauty shops, and after presentation to the Teaneck Department of Health of a certificate executed by a ...