This action in lieu of prerogative writs is instituted by plaintiffs Frank E. Gilman and Eleanor M. Kures against the City of Newark, the mayor and council thereof and John Arthur, the city building inspector. It seeks the invalidation of a certain ordinance adopted on January 4, 1961 regulating and licensing rooming houses in the City of Newark.
The complaint charges that the provisions of the ordinance under attack are unconstitutional and invalid in that:
"(a) Said provisions confer upon the administrative officers therein referred to, unlimited and arbitrary discretion, containing no standards or yardstick by which such authority may be adequately and properly measured.
(b) Said provisions are vague and indefinite, in enabling those effected thereby to determine with reasonable certainty the proper scope thereof.
(c) Said provisions are discriminatory, unreasonable, afford no fair treatment of all persons within the same or comparable category, and are arbitrary, oppressive and capricious.
(d) Said provisions do not give the equal protection of the law to persons with respect to the ownership, operation and maintenance of comparable real estate thereby attempted to be affected.
(e) The classification contained in the said provisions with respect to the property to be thereby effected is artificial, invalid and unreasonable."
It is further urged that the unconstitutional paragraphs are so intimately interwoven and related with the essential and major portions of the ordinance as to be indivisible and inseparable therefrom, and that the entire ordinance is thereby invalid and unconstitutional. The ordinance is likewise asserted to constitute a violation of due process by reason of the alleged failure to provide for notice in the event of a violation.
Initially, it is contended that the ordinance is invalid because of the failure to republish certain amendments thereto. N.J.S.A. 40:49-2 requires that where an ordinance has been advertised for final passage and an amendment is adopted "substantially altering the substance of the ordinance," adoption of the ordinance must be deferred
for at least one week and it must be republished at least two days before the time fixed for its final passage as amended. In this case certain amendments to the ordinance were made on the date of the originally advertised public hearing. Plaintiffs urge that the amendments in question were substantial and come within the purview of the statutory requirement. The minutes of the mayor and council show that on the advertised day, after the close of the public hearing, the city clerk called attention to the cited amendments in the following language:
" THE CITY CLERK CALLED ATTENTION TO A NUMBER OF AMENDMENTS TO THE ORDINANCE WHICH WERE BEING MADE BY THE COUNCIL AS A RESULT OF FURTHER STUDY AND RECOMMENDATIONS MADE BY VARIOUS GROUPS OF PEOPLE." (Emphasis added)
The amendments thereupon adopted may be said to:
(a) Permit additional exemptions from the operation of the ordinance as regards rooming houses.
(b) Clarify the meaning of certain provisions with reference to dwellings.
(c) Reduce the requirements with reference to natural ventilation in bathrooms in dwellings.
(d) Eliminate the prohibition against gas burning appliances in sleeping rooms in dwellings so as to permit certain gas appliances to be used.
(e) Extend the time when the provisions of the ordinance as to rooming houses shall go into effect from January 1, 1961 to January 1, 1962.
(f) Extend the time within which application for a rooming house license shall be filed from January 1, 1961 to May 1, 1961.
(g) Reduce the license fee by requiring that application for a rooming house license be accompanied by the fee for one year instead of two years.
(h) Limit the maximum fee for a rooming house license to $50.
(i) Extend the time a rooming house may be operated while application is pending from July 1, 1961 to January 1, 1962.
(j) Reduce the two-year license requirement to a one-year one.
(k) Delete the proviso that rooming house janitors, caretakers, housekeepers, owners, operators, or persons charged with the carrying out of certain provisions of the ordinance shall reside on the premises.
(l) Extend the use of single one-plate gas burners to sleeping rooms.
It can thus be seen that the effect of such of the amendments as affected rooming house operators was to ease the burden imposed by the ordinance upon them in the manner and to the extent indicated.
It is not every amendment that is required to be republished as ordained by N.J.S.A. 40:49-2, but only such as substantially alter the substance of the ordinance. Manning v. Borough of Paramus , 37 N.J. Super. 574 (App. Div. 1955). The inquiry involves a mixed question of law and fact. The words of the amendment are to be assessed in the context of the provision of which they are a part and the basic policy of the legislative enactment. "Substance" in the statutory intendment has reference to the essential elements of the legislative act and the public policy of acts in pari materia. Wollen v. Fort Lee , 27 N.J. 408, 420 (1958).
The amendments in question did not constitute substantial changes altering the substance of the ordinance. Their proposed effects were in the form of additional gratuities rather than additional burdens. Plaintiffs have failed to establish that the amendments were of such legally consequential materiality, in their contributive relation to the substantive body of the ordinance, that their inclusion therein ought to be regarded as a change which essentially altered the manifest objective intent and materiality of the ordinance. Manning v. Borough of Paramus, supra , 37
N.J. Super. , at p. 581. The plaintiffs were not aggrieved thereby. Wollen v. Fort Lee, supra , 27 N.J. p. 420. The ordinance was therefore validly adopted.
At the trial some six witnesses were called in addition to plaintiffs. They included a contractor and a tenant called by the latter, the Superintendent of the Inspection Division, the Assistant Health Officer, the Director of the Department of Health and Welfare, and the Chief Inspector of the Bureau of Combustibles and Fire Risks. From the testimony of plaintiff Gilman it appears that the building in which he resides, which is also operated as a rooming house, has been so operated by himself or by others since 1918. No common cooking facilities are furnished. The building is soon to be condemned to make way for a housing project. Plaintiff Mrs. Kures testified she owned and operated two converted dwellings used as rooming houses. She had been operating rooming houses since 1941 when she first converted a dwelling to that use. In one of her buildings, used as a rooming house, there are both back and front stairs so that the cost of compliance with the fire regulations would be higher than usual. Additional testimony bearing upon the contentions of the parties will be referred to infra.
Plaintiffs urge that the ordinance is invalid in that by singling out rooming houses for licensing and regulation, it denies to the proprietors thereof, including plaintiffs, the equal protection of the law. They assert that a rooming house, as defined in the ordinance, differs from a dwelling, as defined therein, only in the number and use of toilets, and that such classification is unreasonable and bears no relation to the object of the ordinance. They also attack that portion of the ordinance which excludes from its purview units occupied by relatives by blood or marriage of the owner or occupier.
A clear reading of the ordinance in the light of common experience is sufficient to establish that rooming houses differ from dwellings in many respects. The absence of individual bathrooms is but one of these. Likewise, the
problems presented differ, and thereby justify a different degree of regulation.
The ordinance defines a rooming house as one containing:
"(a) one or more rooming units, occupied by three or more persons, or
(b) three or more rooming units rented or available for rental, providing, however, that persons related to the owner or operator and residing with said owner or operator on the premises within the relationship herein defined, shall not be counted for purposes of this definition. * * *"
"Related persons" are defined in the ordinance as two or more persons who live together in one dwelling unit, maintain a common household, and
"* * * who are related by blood, marriage or adoption, except as hereinafter provided. For the purpose of this ordinance, related persons includes only a husband, and wife, son, son-in-law, daughter, daughter-in-law, brother-in-law, sister-in-law, nephews and nieces, father, father-in-law, mother, mother-in-law, brother and sister, grandparents, grandchild, stepchild, adopted child and bona fide family servants living in and working full time on the premises."
It is asserted that there is no conceivable relationship between this classification and the purported objects of the ordinance, and that all owners or operators of houses where rooms are rented who have related persons residing in the premises should be required to count such persons in arriving at a determination as to whether their premises constitute a rooming house subject to the provisions of the ordinance.
The rule is well settled that a classification for the purpose of licensing will be upheld by the courts unless it is unreasonable, arbitrary or discriminatory. 29 Am. Jur. 30, § 35 (1960). The burden which rests upon one who asserts that a given piece of legislation contravenes the equal protection clause is set forth in Two Guys From Harrison, Inc. v. Furman , 32 N.J. 199, 218 (1960), where the court quoted with approval from N.J. Restaurant
Ass'n, Inc. v. Holderman , 24 N.J. 295, 300 (1957), as follows:
"The burden of demonstrating that a statute contravenes the equal protection clause is extremely formidable, as is attested by the long trail of failure. In addition to the strong presumption of constitutionality with which all organic challenges are approached, one who assails a statute on this ground must contend with principles of unusual elasticity. It is easily stated that the classification (1) must not be palpably arbitrary or capricious, and (2) must have a rational basis in relation to the specific objective of the legislation. But the second proposition is qualified by limitations which compound the difficulties of one who assails the legislative decision. Thus it is not enough to demonstrate that the legislative objective might be more fully achieved by another, more expansive classification, for the Legislature may recognize degrees of harm and hit the evil where it is most felt. * * * The Legislature may thus limit its action upon a decision to proceed cautiously, step by step, or because of practical exigencies, including administrative convenience and expense, * * * or because of 'some substantial consideration of public policy or convenience or the service of the general welfare.' DeMonaco v. Renton , 18 N.J. 352, 360 (1955). Hence it may 'stop short of those cases in which the harm to the few concerned is thought less important than the harm to the public that would ensue if the rule laid down were made mathematically exact.' Dominion Hotel, Inc. v. State of Arizona, supra , (249 U.S.  at page 268, 39 S. Ct.  at page 274 [63 L. Ed. 597]). * * *"
It went on to hold that in applying the above cited principles, it was necessary to ascertain the evil the Legislature found and then measure against it the reasonableness of the classification.
"It has been said that the courts will not pass judgment upon the wisdom of the Legislature in enacting a law, but will only ascertain if the Legislature has kept within its powers. State v. Garden State Racing Ass'n. , 136 N.J.L. 173 (E. & A. 1947). This case also holds that the Legislature has broad powers to classify and, so long as the benefits derived and the burdens imposed bear alike upon every one within the class and the classification can be justified upon any reasonable theory, it cannot be declared a violation of any constitutional provision. But such classification must have some reasonable and just relation either to the general object of the
legislation or to some substantial consideration of public policy or convenience or service to the general welfare. Washington National Ins. Co. v. Board of Review , 1 N.J. 545 (1949). It must not be illusory. Arbitrary selection can never be justified by calling it classification. The equal protection required by the Fourteenth Amendment forbids this. Gulf, C. & S.F.R. Co. v. Ellis , 165 U.S. 150, 17 S. Ct. 255, 41 L. Ed. 666 (1897). The court in the Washington National case, supra , 1 N.J. , at page 554, pointed out that care must be exercised that the efficacy of constitutional guaranties shall not be whittled away by indulging in unwarranted presumptions of a factual basis for the legislation.
While equal protection does not foreclose reasonable legislative classification, the classification must be non-discriminatory and bear a reasonable relationship to the general object of the legislation."
In Sarner the court invalidated a Sunday closing law, L. 1958, c. 138, N.J.S. 2A:171-5.1 to 5.7, which arbitrarily excluded three counties from its operation. In DeMonaco v. Renton , 18 N.J. 352 (1955), the court set aside the attempted exclusion from the Workmen's Compensation Act of persons engaged in the sale or delivery of newspapers. In that case Chief Justice Vanderbilt held that while the Legislature had broad discretion in selecting those who would be affected by the law, such selection was required to be reasonable and to include all those who naturally fell into the class. In doing so he quoted with approval the following excerpt from Washington National Ins. Co. v. Board of Review , 1 N.J. 545, 553 (1949):
"* * * While the due process and equal protection guaranties are not coterminous in their spheres of protection, equality of right is fundamental in both. Each forbids class legislation arbitrarily discriminatory against some and favoring others in like circumstances. It is essential that the classification itself be reasonable and not arbitrary, and be based upon material and substantial distinctions and differences reasonably related to the subject matter of the legislation or considerations of policy, and that there be uniformity within the class. The equal protection of the laws means that no person or class of persons shall be denied the protection of the laws enjoyed by other persons or classes of persons under similar conditions and circumstances, in their lives, liberty, and property, and in the pursuit of happiness, both as respects privileges conferred and burdens imposed."
In the latter case, which is relied upon by the plaintiffs, certiorari proceedings were instituted to have declared unconstitutional a provision of the Unemployment Compensation Act which exempted from coverage "Service performed by agents of insurance companies, exclusive of industrial life insurance agents, or by agents of investment companies, who are compensated wholly on a commission basis."
But the Washington National case is readily distinguishable from the one sub judice. There, the exemption of persons in the classification named from the provisions of the act bore no reasonable or just relationship to the general object of the legislation or to any substantial consideration of public policy or convenience. The activities of the persons sought to be exempted from coverage came within the ambit of the general objects of the statute, yet they were singled out for special favor over other agents and employees. Such arbitrary selection cannot be justified by designating it as classification. Sarner v. Union Tp., supra , 55 N.J. Super. , at p. 533; Gulf, C. & S.F.R. Co. v. Ellis , 165 U.S. 150, 17 S. Ct. 225, 41 L. Ed. 666 (1897).
The question here involved is whether a rational basis exists for the classification set up by the ordinance. As to this, it must be kept in mind that if any state of facts can reasonably be conceived of which would support the tendered classification, the ordinance must be held not to be violative of equal protection. N.J. Restaurant Ass'n, Inc. v. Holderman, supra; Wilson v. City of Long Branch , 27 N.J. 360, 377 (1958); cf. Gundaker Central Motors v. Gassert , 23 N.J. 71 (1956). In determining whether the requisite facts are reasonably conceivable, "* * * a judge may draw upon his general knowledge, yet the further removed a judge's private experience is from the economic scene in which a law is to function, the greater will be his reluctance to conclude that a claimed factual basis is merely fanciful." N.J. Restaurant Ass'n, Inc. v. Holderman, supra , 24 N.J. , at pp. 301-302.
The essence of plaintiffs' argument is that the difference between rooming houses and dwelling houses is small; that they both compete for the same patronage, and there exists no state of facts which would justify treating rooming houses separately. But from the testimony it appears that, in certain respects at least, the health hazard is less when families live together in houses or apartments. Likewise, the chance of prompt discovery of fires is generally enhanced where people live ...