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Toms River Publishing Co. v. Borough of Manasquan

Decided: February 6, 1974.

TOMS RIVER PUBLISHING COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF,
v.
THE BOROUGH OF MANASQUAN, MONMOUTH COUNTY, NEW JERSEY; BOROUGH COUNCIL OF THE BOROUGH OF MANASQUAN, STUART R. HANCOCK, MAYOR OF THE BOROUGH OF MANASQUAN; THE POLICE DEPARTMENT OF THE BOROUGH OF MANASQUAN; WILLIAM A. MORTON, CHIEF OF POLICE OF THE BOROUGH OF MANASQUAN; AND SGT. LAVOKI OF THE POLICE DEPARTMENT OF THE BOROUGH OF MANASQUAN, DEFENDANTS



Lane, J.s.c.

Lane

In this action plaintiff seeks an injunction to restrain the enforcement of a provision of an anti-litter ordinance. The matter is before the court on final hearing.

Plaintiff publishes a public newspaper in Ocean and Monmouth Counties under the name of "The Reporter." It is distributed by plaintiff without charge to residents within the Borough of Manasquan and is hand delivered to the homes of all residents unless they have specifically requested that it not be delivered.

At its regular meeting on April 23, 1973, the governing body of Manasquan passed Ordinance 884, which reads in part:

No person shall deposit or deliver any paper, circular or printed material of any kind at any residence within the Borough of Manasquan, except upon the expressed request and order of the owner or occupant of any such residence.

Municipalities have no powers other than those delegated to them by the Legislature and by the State Constitution. Ringlieb v. Tp. of Parsippany-Troy Hills, 59 N.J. 348, 351 (1971); Wagner v. Newark, 24 N.J. 467, 474 (1957). N.J.S.A. 40:48-2, however, is a sweeping grant of legislative power to municipalities:

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.

Normally municipal ordinances are presumed to be valid. Courts are instructed that such ordinances must receive liberal construction. N.J. Const., Article IV, Section VII, para. 11. See Moyant v. Paramus, 30 N.J. 528, 534 (1959).

In Johnson v. Township of Montville, 109 N.J. Super. 511 (App. Div. 1970), the court stated:

In passing upon the validity of the ordinance the role of the courts is tightly circumscribed. [Cit omit.] There is a presumption that the municipal governing body acted reasonably and that the resulting legislation is valid. [Cit omit.] We may not pass upon the wisdom of a particular ordinance, and debatable issues or questions of policy involved in its passage must be resolved in favor of the municipality. [Cit. omit.] We are not free to compare the views of the municipal governing body with our own and from this to determine what policy would be in the best interest of the community's residents. The wisdom of the course chosen by the governing body, as distinguished from its legality, is reviewable only at the polls. * * * [at 519]

However, the police power delegated by the state is not infinite and illimitable. Iannella v. Piscataway Township, 138 N.J. Eq. 598, 600 (Ch. 1946). An exercise of delegated power in a manner not within the contemplation of the Legislature must be restrained within proper bounds and be held void. Hasbrouck Heights Hosp. Ass'n. v. Bor. of Hasbrouck Heights, 15 N.J. 447, 455 (1954). Justice Heher summarized the appropriate restraints upon the exercise of the police power in Schmidt v. Board of Adjustment, Newark, 9 N.J. 405 (1952):

The exercise of the power is contained by the rule of reason. Arbitrary action is inadmissible. There must be a substantial connection between the means invoked and the public interest designed to be advanced. The inquiry is whether, considering the end in view, the measure "passes the bounds of reason and assumes the character of a merely arbitrary fiat." [Cit. omit.] It is requisite that there be a rational relation between the regulation and the service of the common welfare in an area within the reach of the police power, and that the means be reasonable and appropriate to that end. Restraints upon property cannot be unreasonable or unduly discriminatory. A police regulation that goes beyond the public need is not effective to curtail the basic rights of person or of private property made the subject of ...


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