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Borough of Brielle v. Zeigler

Decided: March 31, 1962.

BOROUGH OF BRIELLE, PLAINTIFF-RESPONDENT,
v.
ROBERT F. ZEIGLER, DEFENDANT-APPELLANT



Ascher, J.c.c.

Ascher

[73 NJSuper Page 354] This is an appeal from the municipal court, which found defendant Robert F. Zeigler guilty of violating Ordinance No. 254 of the Borough of Brielle, entitled "An Ordinance to License and Regulate Mercantile and Other Business and Occupations, etc." The plaintiff Borough of Brielle (hereinafter referred to as Brielle) approved and adopted the ordinance on August 8, 1960, since amended by Ordinance No. 263, adopted April 10, 1961, and Ordinance No. 268, adopted July 24, 1961. Charles H. Byrne, the appointed licensing officer, swore out the complaint and issued summons on September 5, 1961, alleging that Robert F. Zeigler did on August 30, 1961 violate Ordinance No. 254. Defendant Robert F. Zeigler (hereinafter referred to as Zeigler) docked on the northerly shore of the Manasquan River, bordering the southerly side of Brielle. Zeigler was engaged in the "boat for hire" business, which consisted of transporting passengers and other chattels and merchandise for a fee.

Zeigler did not comply with Ordinance No. 254, by failing to make formal application to the borough clerk for a license and paying the fee to engage in the aforesaid business.

I. CONSTITUTIONAL LIMITATIONS.

Many municipalities have passed ordinances similar to Ordinance No. 254. Brielle adopted an ordinance whose form and pattern resemble that usually passed by local legislative bodies. The scope is broad, and strict with detailed regulatory and procedural features, the scheme being one of regulation by municipal registration and license, issuable only on compliance with numerous conditions. Moyant v. Borough of Paramus , 30 N.J. 528, 534 (1959). Zeigler was pursuing a lawful business in an attempt to earn a livelihood, but Brielle exercised its general police power in attempting to protect the public from the evils and bad features connected with the business.

The New Jersey Constitution, Art. IV, Sec. VII, par. 11 provides:

"The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor. * * *"

This constitutional provision is fully applicable to this case, having been applied by our courts in numerous similar fact situations. The court in Mullin v. Ringle , 27 N.J. 250, 256 (1958), commented:

"Having in mind the strong presumption in favor of validity of the action (appointment of park patrolmen and park police chief) our duty under the 1947 Constitution, Art. IV, Sec. VII, par. 11, and the legislative direction, N.J.S.A. 40:42-4 to construe liberally grants of power to municipal governments, we cannot sustain the plaintiff's charge of illegality."

For the most recent cases, see Yardville Estates, Inc. v. City of Trenton , 66 N.J. Super. 51, 59 (App. Div. 1961),

and Greggio v. City of Orange , 69 N.J. Super. 453, 460 (Law Div. 1961).

Brielle has within its jurisdictional limits large bodies of water which may present a problem of pollution or other public health problems. Under N.J.S.A. 40:48-2:

"Any municipality may make * * * such other ordinances * * * as it may deem necessary and proper * * * 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."

The most recent case commenting on this area of the law is Dover Township, in the County of Ocean, v. Kassenoff , 37 N.J. Super. 582 (App. Div. 1955), wherein Judge (now Justice) Francis at page 587 stated:

"Our courts have recognized that control over garbage and refuse matter is 'indispensable to public health, safety and comfort' (Earruso v. Board of Health, East Hanover Township , 120 N.J.L. 463, 469 (Sup. Ct. 1938), and that 'ample power to deal with the problem has been granted to Municipal Boards of Health and Governing Bodies.' Township of Dover v. Witt , 7 N.J. Super. 259 (App. Div. 1950), citing inter alia, R.S. 40:66-1; Marangi Bros, Inc. v. Board of Com'rs of Village of Ridgewood , 33 N.J. Super. 294 (App. Div. 1954)."

Zeigler contends that the ordinance is void, since it attempts to license and regulate motor "vehicles" operating on navigable waters under the authority given to municipalities in N.J.S.A. 40:52-1. The Legislature in N.J.S.A. 40:52-1 provided:

"The governing body may make, amend, repeal and enforce ordinances to license and regulate: a. all vehicles used for the ...


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