Schneider, J.c.c. (temporarily assigned).
Plaintiffs move for summary judgment. Their action is in lieu of prerogative writs to review part of ordinance No. 893 passed by the governing body of Hasbrouck Heights, Bergen County, which ordinance seeks to license apartment houses and other dwelling units and to secure a substantial license fee.
Plaintiffs are owners of apartment houses and multiple dwellings in Hasbrouck Heights. For some years a tax battle has raged between the municipality and the apartment house owners. The fight started when the owners appealed their 1960 tax assessments to the Bergen County Board of Taxation and obtained a one-third reduction. Hasbrouck Heights appealed to the Superior Court. The appeal was dismissed on jurisdictional grounds. On further appeal the Appellate Division affirmed. There followed an appeal to the Division of Tax Appeals, which affirmed. Appeal to the Appellate Division resulted in an affirmance. The Supreme Court denied certification.
The 1961 and 1962 tax assessments were again put back to their original amount, with appeals to the county tax board and Division of Tax Appeals resulting in the taxes again being reduced. These determinations were certified by the Supreme Court and the reductions sustained. The 1963 and 1964 assessments were again put at the original amount and reduced on appeal. These assessments are before the State Board of Tax Appeals at the present time.
On June 1, 1964 ordinance No. 893 was adopted by Hasbrouck Heights, and on July 6, 1964 amended. The ordinance is intended to regulate places and buildings used for sleeping and lodging purposes in order to alleviate congestion and prevent slum areas, and to license such places. No property may be used as a hotel-motel, rooming unit, dwelling unit or
building used for sleeping purposes without getting a license. Under section 10 the license fee for hotel-motels is $100 per sleeping unit; rooming units, $100 per unit, and dwelling units, $50 for each unit more than two. It is estimated that the license fee for apartment houses will bring in about $33,000, equivalent to the amount lost when the assessments were reduced. The ordinance contains a penalty clause of a $200 fine or 90 days imprisonment, or both, for each day of violation.
Plaintiffs contend the ordinance requirement of a license, as well as the license fee, are illegal as applied to apartment houses. These structures all have regular apartments, with rentals on term or monthly basis. None has overnight rentals.
The deposition of the mayor was made part of the motion record. He stated that "the effect of the ordinance is to get a fair payment for the services rendered for multiple family dwellings." Later he agreed that "this ordinance does not require the borough to render any additional services or expend any additional money." The purpose of this ordinance, he said, is to have owners of multiple-family dwellings, numbering 22, to pay their fair share of the cost of government. Other testimony by the mayor and the borough clerk clearly shows that the ordinance was passed for tax revenue and not merely regulation of apartment houses.
Under what authority and under what circumstances can a license against apartment houses be justified? These properties have already been taxed under general taxation statutes. The reduction in assessments by the designated tax boards must be accepted as the proper amount permitted under general taxing power, especially since these reduced amounts have been sustained by full appellate procedure.
The municipality is a creature of the State and has only those powers specifically granted or as may reasonably be inferred from statutory legislative authority. The only way to sustain the license tax in question would be under a valid exercise of the police power. R.S. 40:48-2 provides that a municipality may make any ordinance it may deem necessary and
proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants. Moyant v. Borough of Paramus, 30 N.J. 528 (1959), shows that the ordinance must be designed to protect and promote the health, safety, morals and general welfare of the community. Such an ordinance under general licensing power may not be used to produce general revenue and must be limited to the actual ...