For affirmance -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall and Mountain, and Judges Conford and Sullivan. For reversal -- None. The opinion of the Court was delivered by Hall, J.
This case involves the question whether a state statute prohibiting possession of a loaded gun within a specified distance of an occupied dwelling or school playground "for the purpose of hunting, taking or killing any bird or animal" precludes a municipal ordinance operating in the same area. Defendant, supported by the Attorney General, contends that the state has preempted this field.
The statute is found in N.J.S.A. Title 23, Fish and Game, Wild Birds and Animals, section 23:4-16, the full pertinent portion of which at the date here involved read:
The power to enact municipal regulation of gun use is specifically delegated by N.J.S.A. 40:48-1(18), derived from the Home Rule Act of 1917 (L. 1917, c. 152, Art. XIV, § 1, p. 354), authorizing municipalities to adopt ordinances to "[r]egulate and prohibit the sale and use of guns, pistols, firearms, and fireworks of all descriptions." Plaintiff township's ordinance provision (Section 46 of its Vice and Immorality Ordinance) is identical in verbiage with the quoted portion of N.J.S.A. 23:4-16 except for the omission of the italicized phrases. Thus, while the ordinance is broader in scope than the statute, it is duplicative insofar as loaded gun possession for the purpose of hunting is concerned.
There is a difference in the penalty provisions of the two enactments. N.J.S.A. 23:4-16 prescribes a civil penalty of $50 for each offense, recoverable in a summary proceeding in the appropriate county district or municipal court, N.J.S.A. 23:10-2, for the use of the Division of Fish and Game, N.J.S.A. 23:10-19 (now the Division of Fish, Game and Shell Fisheries in the State Department of Environmental Protection, L. 1970, c. 33, § 7, N.J.S.A. 13:1D-4). Violation of the ordinance provision is punishable as a petty offense in the local municipal court, under a general penal section of the enactment, by a fine not exceeding $200 or 90 days imprisonment or both. This penalty is within the limits prescribed by N.J.S.A. 40:49-5, authorizing penalties for the violation of municipal ordinances. Fines for such violations go into the municipal treasury.
The question posed comes to us in the abstract. Defendant was charged by complaint made by a local police officer in the township municipal court with discharging a firearm within 300 feet of a dwelling in violation of the ordinance. Proof of that occurrence would, of course, establish possession of a loaded gun, the act both the ordinance and the statute forbid. The case has never been tried and there has been no stipulation that the offense occurred. The most that has been conceded is that defendant was at the time within the confines of state-owned public hunting grounds in the township "for the purpose of hunting."*fn2
Defendant moved in the municipal court to dismiss the complaint on the ground that application of the ordinance provision was invalid by reason of state preemption of the field of hunting, i.e., that he could only be charged under the statute. The municipal court judge denied the motion and stayed proceedings pending appeal from his action. The Morris County Court affirmed the denial, as did the Appellate Division. 116 N.J. Super. 229 (1971). Defendant purports to appeal as of right to this court.*fn3
The matter of preclusion of the exercise of municipal police power by virtue of the nature of the field or state occupation of it, directly or indirectly, in whole or in part, has previously been thoroughly considered. Leading cases are State v. Ulesky, 54 N.J. 26 (1969); Summer v. Teaneck, 53 N.J. 548 (1969); Belleville Chamber of Commerce v. Town of Belleville, 51 N.J. 153, 157 (1968); Mogolefsky v. Schoem, 50 N.J. 588, 597-598 (1967); In re Public Service Electric and Gas Co., 35 N.J. 358, 370-373 (1961); Masters-Jersey, Inc. v. Paramus, 32 N.J. 296 (1960); Kennedy v. City of Newark, 29 N.J. 178 (1959); Cranberry Lake Quarry Co. v. Johnson, 95 N.J. Super. 495, 508-511 (App. Div. 1967); Chaiet v. East Orange, 136 N.J.L. 375 (Sup. Ct. 1948).
The general principles distilled from the decisions are well recognized. The aspects pertinent to this case may be briefly summarized. Municipalities have been granted broad police power over matters of local concern and interest, both in numerous specified instances, as here, by N.J.S.A. 40:48-1 and generally by N.J.S.A. 40:48-2. Our Constitution, Art. IV, § VII, par. 11, ordains liberal construction of these powers. Their scope, however, does not extend to subjects inherently in need of uniform treatment or to matters of general public interest and applicability which necessarily require an exclusive state policy. In addition, a municipality may be foreclosed from exercising power it would otherwise have if the state has sufficiently acted in a particular field. Obviously local legislation cannot permit what a state statute or regulation forbids or prohibit what state enactments allow. Beyond such manifest conflicts with state policy, our cases establish that a municipality is precluded from exercising its powers in an area which the
state has preempted. That concept is succinctly ...