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New Jersey Builders Association v. Mayor and Township Council of Township of East Brunswick

Decided: March 6, 1972.


For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For reversal -- None. The opinion of the Court was delivered by Mountain, J.


This action tests the validity of an ordinance of the Township of East Brunswick seeking to regulate building contractors. Immediately upon adoption of the ordinance, plaintiffs initiated this suit challenging the legislation in its entirety. The trial judge considered the matter upon certain stipulated facts, affidavits, briefs and oral argument; no testimony was taken. The court concluded that the ordinance was invalid. We granted the Township's motion for certification while appeal was pending in the Appellate Division. R. 2:12-2.

The ordinance takes the form of an amendment to the municipal building code. By way of preamble it recites that the failure of builders to comply with the code and other regulatory ordinances has resulted in conditions detrimental to public safety, health and general welfare and has caused great damage to purchasers of property. Reference is made to financially irresponsible builders who have failed or been unable to correct violations of the municipal regulations. In an effort to cope with this problem the ordinance directs that two things be done. First, before a building permit may issue, a builder must register with the Chief Building Inspector of the Township. The application for registration requires the disclosure of certain specified information as to the identity, qualifications and responsibility of the applicant. In the second place, with respect to each property offered for sale, the contractor must undertake to provide a one-year maintenance bond running in favor

of the purchaser in an amount equal to fifteen (15%) per cent of the sales price, "covering any defect which would be in violation of the Building Code of the Township of East Brunswick." Sanctions by way of suspension or revocation of registration are imposed, upon a showing of material misrepresentation or repeated or continued violations of the code, but only after notice and a hearing before the Township Council. The trial court struck down the ordinance essentially for the reason that its enactment was found to be without statutory basis.

We first consider the question as to whether building contractors may be regulated at all. The reasonable regulation of contractors and builders is defended by the appellants as a proper exercise of the police power. With this, as a general proposition, we agree. Although this particular occupation is not now regulated in New Jersey by any statute of general application, our Legislature has focused its attention upon other particular callings in the building trades and has enacted comprehensive laws to regulate and supervise electrical contractors (N.J.S.A. 45:5A-1, et seq., "The Electrical Contractors Licensing Act of 1962"), master plumbers (N.J.S.A. 45:14C-1, et seq., "The State Plumbing License Law of 1968") and home repair contractors (N.J.S.A. 17:16C-62, et seq., "Home Repair Financing Act"). We know of no reason why, should the Legislature so wish, building contractors might not be brought under similar supervision. Statutes looking to this end have been widely adopted elsewhere and have been uniformly sustained. See, for example, Northen v. Elledge, 72 Ariz. 166, 232 P. 2d 111 (1951); Arkansas State Licensing Board for General Contractors v. Lane, 214 Ark. 312, 215 S.W. 2d 707 (1948); Vogel v. Reed Supply Co., 277 N.C. 119, 177 S.E. 2d 273 (1970); Enlow & Son, Inc. v. Higgerson, 201 Va. 780, 113 S.E. 2d 855 (1960); Dow v. United States, for use and Benefit of Halley, 154 F.2d 707 (10 Cir. 1946) (Utah). Such regulatory measures are designed for the protection of

the public against unscrupulous and unqualified persons purporting to have the capacity, knowledge and qualifications of a contractor. Elsewhere the business of a building contractor has been described as clothed with a public interest. State ex rel. Reynolds v. St. Petersburg, 133 Fla. 766, 183 So. 304, 118 A.L.R. 667 (1938). We readily conclude that the occupation of building contractor may, by an appropriate exercise of the police power, be made subject to reasonable regulation.

But it is argued that even if regulation is legally permissible at the state level, there has been no delegation of such power to municipalities. This was likewise the conclusion of the trial court. It is pointed out that N.J.S.A. 40:48-1(13), while authorizing the regulation and control of the construction of buildings and structures, says nothing about regulating builders themselves and that N.J.S.A. 40:52-1, which enumerates a long list of occupations and callings that may be licensed by a municipality, makes no mention of builders. These specific delegations of municipal authority, however, by no means comprise the entire legislative grant of police power. N.J.S.A. 40:48-2 reads 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 statute has been construed as ". . . an express grant of broad general police powers to municipalities . . . subject only to the limitation that such action not be prohibited by or inconsistent with the Constitution or the other statutes." Fred v. Mayor and Council, Old Tappan Borough, 10 N.J. 515, 520-521 (1952). This broad delegation of police power

is ". . . in addition, rather than merely ancillary, to the sundry detailed authorizations for municipal action contained in our statutes." Summer v. Teaneck Tp., 53 N.J. 548, 552 (1969). Furthermore the defendant township is governed by the Optional Municipal Charter Law (Faulkner Act), N.J.S.A. 40:69A-1, et seq. With respect to municipalities so governed, it has been ordained by the Legislature that,

The general grant of municipal power contained in this article is intended to confer the greatest power of local self-government consistent with the Constitution of this State. Any specific enumeration of municipal powers contained in this act or in any other general law shall not be construed in any way to limit the general description of power contained in this article, and any such specifically enumerated municipal powers shall be construed as in addition and supplementary to the powers conferred in general terms by this article. All grants of municipal power to municipalities governed by an optional plan under this act, whether in the form of specific enumeration or general terms, shall be liberally construed, as required by the Constitution of this State, in favor of the municipality. [ N.J.S.A. 40:69A-30]

These broad grants of power clearly demonstrate that there has been adequate delegation of authority to sustain the local enactment, if ...

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