Combs v. Township of Lakewood

68 N.J.L. 582 | N.J. | 1902

The opinion of the court was delivered by

Garrison, J.

This is a certiorari brought to test the validity of an ordinance of the township of Lakewood licensing and regulating hacks, cabs, stages and vehicles used for carrying passengers for hire and fixing a license -fee for the same. The writ is directed to the clerk of the township, instead of to the corporation. T-his is said to be fatal upon motion to-dismiss. Young v. Crane, 38 Vroom 453. The case has been fully argued, without notice to dismiss until argument, and will be treated on its merits.

The ordinance prescribes that it shall not be lawful to engage in the business of carrying passengers for hire without a license, for which a fee of $2 for each vehicle so employed must be paid. It subjects persons convicted of pursuing such business in violation of the above provision to a fine not exceeding $100, with commitment until paid. Under the same penalty it requires licensed vehicles to stand, for the purpose of soliciting custom, at certain designated points in the highways and not elsewhere therein, and that the number of its license shall be displayed by each vehicle.

The first and third reasons assigned for holding this ordinance invalid are that it is without authority of law. This contention is disposed of, both upon reason and authority, by the following decisions cited in the exhaustive brief of the counsel for the defendant: Cooley Const. Lim. 734, 735; State v. Robinson, 43 N. W. Rep. 833; Jones v. Foster, 43 N. Y. App. Div. 33; North Hudson County Railway Co. v. Hoboken, 12 Vroom 71; Brooklyn v. Breslin, 57 N. Y. 591; St. Johnsbury v. Thompson, 9 Atl. Rep. 571; Commonwealth v. Stodder, 2 Cush. 562; Morrill v. State, 38 Wis. 428; Bradley v. Rochester, 7 N. Y. Supp. 237; Bowser v. Thompson, 45 S. W. Rep. 73; People v. Hotchkiss, 76 N. W. Rep. 142; People v. Sawyer, 106 Mich. 428; Munn v. Illinois, 4 Otto 113.

The second reason is that the ordinance makes a distinction between the rights of citizens of the same township. No basis of fact is discoverable to which this reason can apply. Instances of an identical or similar exercise of municipal control that have been supported by the courts are taken as follows from the source above indicated: Tied. Mun. Corp. 299; Chicago v. Bartee, 100 Ill. 57; Mobile v. Yuille, 3 Ala, 137; People v. Mulholland, 19 Hun 548; Commonwealth v. Stodder, 2 Cush. 562; Railway Co. v. Philadelphia, 58 Pa. St. 119 St. Louis v. Green, 70 Mo. 562; Bowling Green v. Carson, 10 Bush 64; Winnsboro v, Smart, 11 Rich. 551; Commonwealth v. Matthews, 122 Mass. 60; Commonwealth v. Gage, 114 Id. 328; St. Paul v. Smith, 27 Minn. 364; Chillicothe v. Brown, 38 Mo. App. .609; Emporia v. Shaw, 6 Kan. App. 808; Montgomery v. Parker, 114 Ala. 118; Colorado Springs v. Smith, 36 Pac. Rep. 540; Long v. Jersey City, 8 Vroom 348; Tomlin v. Cape May, 34 Id. 429; Trenton Horse Railroad Co. v. Trenion, 24 Id. 132; Cape May Railroad Co. v. Cape May, 30 Id. 393, 396.

The fourth reason is that the ordinance discriminates between those licensed and not licensed. Every regulation that prescribes duties for those who obey it and penalties for those who do not has this effect.

The last reasons are that trial by jury is denied, and that the penalty is excessive, cruel and unusual. If the doctrine raised by these questions be regarded as not definitively settled, the following decisions put it at rest: Haynes v. Cape May, 23 Vroom 180; McGear v. Woodruff, 4 Id. 213; Howe v. Plainfield, 8 Id. 145.

The ordinance is not shown to be invalid for any of the reasons that have been urged, and is therefore affirmed, with costs.