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Silco Automatic Vending Co. v. Puma

Decided: February 5, 1969.


Civil action in lieu of prerogative writs.

Feller, J.s.c.


These consolidated actions in lieu of prerogative writs seek to compel the issuance of coin-operated music machine licenses and to declare invalid section 7 of ordinance 260 of the City of Elizabeth.

With reference to the Silco Automatic Vending Company case it is stipulated that when the ordinance was enacted on February 8, 1967, and ever since that time, there were never any licenses available because those outstanding were in excess of the number allowed by the ordinance. At present there are 272 coin-operated music system licenses and 192 for other types of amusement devices. Puma is

the license inspector of Elizabeth. Examination of applicants under ordinance 260 is not his sole function; there are others. When he receives an application for an operator's license under the ordinance he sends it to the police department to check on the background and criminal record of the parties involved in order to determine whether they meet the ordinance requirements. The police department then sends the application to the State Police Bureau and the Federal Bureau of Investigation to determine if there were any offenses committed by the persons named in the application. The police department makes no charge for the work so performed. The budget for Puma's department was approximately $12,700 for 1966, $13,700 for 1967, and $14,100 for 1968. There are 12 individuals who hold an operator's license (fee $100) where only one music machine is involved, four people who hold licenses for more than one music machine (fee $200), two who pay a $2,000 operator's license.

Plaintiff applied for a license in June 1966. On July 6, 1966 its counsel said that if he did not hear from Puma by July 8 he would assume the application had been disapproved and immediately commenced a suit requiring that the license be issued; that Puma wrote on July 7, 1966 acknowledging receipt of the letter and stating that Silco's application had been referred to the police department for the customary investigation, and that upon receipt of its report and recommendations he would notify counsel; that no other word was ever received from Puma and his files do not show the receipt of any police report on Silco; that there is no derogatory information in Puma's files as of then or now concerning Silco.

The following stipulations were made by counsel in the Dierickx Music, Inc. case:

Plaintiff applied on June 7, 1966 for an operator's license under the then existing ordinance and paid the prescribed fee to the license inspector. The inspector rejected the application solely on the ground that the applicant

was a nonresident of Elizabeth and therefore barred by the provisions of the ordinance. This resulted in court proceedings in December 1966, in which it was held that the section of the ordinance barring nonresidents was unconstitutional. On January 10, 1967 Dierickx' attorney wrote license inspector Puma demanding that he issue the license applied for the preceding June since the bar to its issuance was now removed. Puma replied, advising that no new licenses were being issued because there was then pending before the city council a new ordinance regulating coin-operated music devices. The check that had accompanied the original application was returned. On January 26, 1967 Dierickx applied for a license under new ordinance 260 and tendered the prescribed fee. The license inspector returned the check with a letter advising that a license could not be issued because the licenses than in existence exceeded those permitted by the ordinance.


Section 1 of ordinance 260 provides as follows:

"On and after the effective date of this Ordinance, the operation and maintenance of pool and billiard tables, bowling alleys, music and all other amusement or entertainment machines or devices in which coins are inserted, within the City of Elizabeth, in public or quasipublic places, or in any public building, store or other place wherein the public are invited, or wherein the public may enter, shall be licensed by the License Inspector of the City of Elizabeth, and no person shall place, operate or maintain the same without having first obtained a license for that purpose."

Plaintiffs contend that Elizabeth is without statutory authority to enact an ordinance providing for the licensing of coin-operated music machines. Defendants contend that the statutes give the municipality such authority.

N.J.S.A. 40:52-1(f) provides that

"The governing body may make, amend, repeal and enforce ordinances to license and regulate:

* * *

f. Theatres, cinema and show houses, opera houses, concert halls, dance halls, pool or billiard parlors, bowling alleys, exhibition grounds, and all other places of public amusement, circuses and traveling or other shows, plays, dances, exhibitions, concerts, theatrical performances, and all street parades in connection therewith." (Italics supplied)

A municipality ordinarily may regulate the use of juke boxes, mechanical music machines, player pianos, phonographs and radios, where they are employed for amusement on a commercial basis or in commercial places, such as restaurants, ice cream parlors, saloons and dance halls, and may impose penalties for violation of its regulations. Authority to regulate these instruments may be derived from a grant of power to regulate "amusements," or in any event, under the municipal police power to protect and preserve the public morals and welfare. Theatrical, operatic and musical performances and motion picture shows have always been recognized as proper subjects of police inspection and control. In comparison, regulation and supervision of commercially operated juke boxes is, at best, merely a question of degree.

While mechanical music machines, including juke boxes, are not nuisances per se, they may become nuisances in fact where, by reason of the manner in which they are managed, their location and other circumstances, they are harmful to the public morals or welfare. The fact that they can be located in many places and that there is broad opportunity to select records of varying quality and worth makes it desirable to protect the public morals and welfare with respect to them.

Municipal regulation of music machines may relate to their possession, location, installation, and use or manner of operation, i.e., pieces played and manner of playing. Accordingly, an ordinance may prohibit the playing of such instruments at any place where they disturb the peace and quiet of the neighborhood. The municipality may also

prohibit the playing of vulgar or obscene selections. Provision for periodic inspections insures that juke boxes and the like do not become public nuisances. An ordinance like the one under consideration must, of course, be reasonable and not oppressive or discriminatory. But it is not void as discriminatory merely because it is not applicable to music stores which occasionally play phonographs or radios near their doorways to attract customers.

It is a general rule that legislative determinations embodied in municipal ordinances are for the duly constituted municipal authorities and not for the courts, and that the wisdom of municipal legislation is not for the judiciary but for the municipal legislative body. Hence, a court is not concerned with the merit or wisdom of municipal legislation on juke boxes and mechanical players. However, the power of a municipality to enact such legislation must be determined by a court when the issue properly is before it. Accordingly, the relationship of such legislation to the public safety, morals and general welfare, its reasonableness, whether or not it is discriminatory -- all being questions going to the municipal power, are subject to judicial review. More specifically, it is for the courts to determine whether particular automatic musical instruments or the like are proper subjects for the exercise of the police power and whether the regulation of such instruments is reasonably necessary to the comfort, morals, safety or welfare of the community, since these questions relate to the existence of municipal power. But a court cannot judicially declare that an ordinance which aims at regulation of commercial juke boxes and their inspection is so patently arbitrary and so unreasonable an interference with legitimate business as not to be warranted by any rational considerations of public safety, morals and general welfare. 7 McQuillin, Municipal Corporations (3 d ed.), sec. 24.215, pp. 40-43. See also Lamere v. City of Chicago, 391 Ill. 552, 63 N.E. 2 d 863, 866 (Sup. Ct. 1945).

Thus, N.J.S.A. 40:52-1(f), which gives to municipalities the power to regulate places of public amusement, would seem to give to municipalities the statutory authority to license coin-operated music machines in furtherance of the police power to regulate public amusements.

This conclusion is in harmony with Art. IV, sec. 7, par. 11 of the New Jersey Constitution (1947) which provides in effect that any law concerning municipal corporations formed for local government shall be liberally construed in their favor, and the powers of such municipal corporations includes not only those granted in express terms, but also those of necessary or fair implication or incident to the powers expressly conferred or essential thereto and not inconsistent with or prohibited by the State Constitution or by law.

Courts are enjoined by our Constitution, Home Rule Act and Optional Municipal Charter Law to interpret statutes liberally in favor of existence of local power to deal with local needs. Whelan v. New Jersey Power and Light Co., 45 N.J. 237, 251 (1965).

N.J.S.A. 40:52-1 does not specifically authorize municipalities to license juke box machines and the cases do not seem to clarify this question.

In Gilbert v. Town of Irvington, 20 N.J. 432 (1956), the court held that the ordinance establishing fees for the licensing of coin-operated milk vending machines was unreasonable, discriminatory and confiscatory, and was illegal and void because the fees charged were excessive. However, the court stated (at pp. 435 and 436) that the power of a municipality to regulate or license emanates from N.J.S.A. 40:52-1 and N.J.S.A. 40:52-2, and the right of a municipality to do so and to exact fees for revenue is dependent upon and limited by the power so conferred. However, the court did not designate the subsection of the above statutes which authorizes the licensing of coin-operated milk vending machines. Apparently there is no such provision included in N.J.S.A. 40:52-1.

N.J.S.A. 40:52-2 gives the governing body the right to fix the fees for licenses, which may be imposed for revenue; to prohibit all unlicensed persons and places and vehicles, businesses and occupations from acting, being used or carried on, and to impose penalties for violations of licensing ordinances and to revoke any license for sufficient cause.

In Mayor & Council of City of Hoboken v. Bauer, 137 N.J.L. 327 (Sup. Ct. 1948), the ordinance provided, among other things, for the regulation and control of the use of automatic musical instruments and the like, and provided that such machines should not be installed without a license. The court held that the ordinance was in conflict with the Fourteenth Amendment of the United States Constitution and Art. I, par. 1 of the New Jersey Constitution (1844) because it did not set up any norm or standards for the supervision of licenses. However, the court said nothing about any statute which authorized the adoption of said ordinance. Apparently, this question was not raised.

N.J.S.A. 40:48-1(20) provides, in effect, that the governing body of every municipality may make, amend, repeal and enforce ordinances to regulate machinery, scenery, lights, wires and other apparatus, equipment or appliances used in all places of public amusement. Thus, a governing body is given the authority to regulate apparatus, equipment and appliances in all places of public amusement.

N.J.S.A. 40:48-2 provides as follows:

"Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this State or of the United States, as 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, and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law."

This section constitutes an express grant of broad general police powers to a municipality, and under it a municipality can take such action as it deems necessary for the good government,

order and protection of persons and property and the health and general welfare of the municipality, subject to constitutional and statutory limitations. Kirzenbaum v. Paulus, 51 N.J. Super. 186 (Law Div. 1958), affirmed 57 N.J. Super. 80 (App. Div. 1959).

Thus, in the event that an enumerated power is not deemed sufficient (such as N.J.S.A. 40:52-1 in this case), and provided the ordinance adopted is not contrary to the laws of this State or of the United States, by N.J.S.A. 40:48-2 a municipality may pass an ordinance as long as it is for any of the purposes set out therein. This section is an express grant of broad general police powers to muncipalities. Fred v. Mayor, etc., of Old Tappan, 10 N.J. 515 (1952). However, it is not a licensing statute.

In Fred the court said:

"The suggestion is made that the Legislature has provided other more specific methods of dealing with the problems arising from the removal of soil and that, therefore, an ordinance regulating such removal is inconsistent with these other methods. Admittedly when the Legislature has prescribed the procedure for dealing with specific local problems, a municipality is not free to deal with those problems without regard for the legislative prescription, Magnolia Development Co., Inc. v. Coles, supra, 10 N.J. 223, 227 (1952). In the instant case, however, we discern no other legislative scheme subverted by a regulatory ordinance of the type here involved." (at p. 521)

Applying this rule to the present case, it would seem that under N.J.S.A. 40:52-1 the Legislature has provided more specific methods of dealing with the power to license. However, in the instant case, under the provisions of N.J.S.A. 40:48-1(20), N.J.S.A. 40:49-2 and N.J.S.A. 40:52-1(f) there seems to be no ...

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