115 N.J. Eq. 222 | N.J. Ct. of Ch. | 1934
On December 11th, 1933, the Drive-To Department Stores, applied for and obtained from the city of Newark, a license "to conduct the business of a department store," under an ordinance adopted March 8th, 1933. The ordinance provides:
"1. It shall be unlawful for any person, * * * or corporation, to engage in the sale of meats, groceries and provisions, dry goods and merchandise and goods and chattels of every kind, in the City of Newark, without first having obtained from the Board of Commissioners of the City of Newark a license so to do, and having first paid a fee of One Dollar ($1.00)."
At an informal conference of the city commissioners on December 18th, 1933, certain merchants and residents objected to the action theretofore taken in granting the license, whereupon the commissioners adopted a motion to rescind their previous action, and caused to have a resolution prepared which was to be introduced at the meeting of the commissioners to be held the following day, December 19th, 1933, formally revoking the license. The reason for the threatened action of the commissioners is set forth in the affidavit of the mayor, as follows: "At the conference held at this time and place sufficient appeared to convince me that the nature of the business which the corporation intended to conduct was not that of the conventional and ordinary department store, but was in the nature of a large market such as is now being conducted by the Big Bear in Elizabeth, New Jersey." (Italics mine.) Affidavits of other commissioners are to the same effect. *224
The complainants, relying upon the license theretofore granted, incurred considerable expense, and made contracts for alterations in the premises which it leased, and now bring this bill to enjoin the city of Newark and the city commissioners from interfering with the conduct of its business. The matter is before me on bill, order to show cause containing restraint, and motion to dismiss the bill of complaint for want of equity.
The legislature, by P.L. 1917 p. 358; P.L. 1918 p. 958 (Cum.Supp. Comp. Stat. §§ 136-1501), as amended by P.L. 1929 p.406, delegated the power to the governing body of every municipality "to make, enforce, amend or repeal ordinances to license and regulate: * * * stores for the sale of meats, groceries and provisions, dry goods and merchandise, and goods and chattels of every kind, * * * in the place or places of business or premises in which or at which the different kinds of business are to be conducted." The legality of the ordinance under which the commissioners assumed to act is questioned by complainants because, they argue, the power delegated by the legislature was not attempted to be exercised by the city of Newark since the ordinance does not provide for any regulation, and is therefore void. The question of the validity of the ordinance, however, is not one properly before this court and will not be passed upon. It is a question to be raised uponcertiorari in the courts of law. This court, however, has full and complete jurisdiction to prevent municipalities from acting under invalid proceedings when property rights will be destroyed and where the remedy at law for damages will be inadequate.
The city authorities evidently considered it proper to give ear to objecting merchants in the neighborhood who are their constituents, but the principles of law recognize no such policy. With us it is not a matter of expediency, political or otherwise. It is and must be a matter of property right. The security of property depends upon the observance of that principle. The property right of complainants is established herein and the threatened interference on the part of the defendants is without justification. *225
It must be conceded that complainants have an undeniable right to engage in the business of a department store. The ordinance forbids their so doing except, to use its language, "without first having obtained from the board of commissioners of the city of Newark a license so to do, and having first paid a fee of one dollar." The power thus sought to be exercised is without legal force since it is not conferred by the act of the legislature. The commissioners have reserved to themselves discretionary power to give to one and withhold from another the privilege of engaging in a business otherwise entirely lawful except upon license, which they may grant or refuse. Village of SouthOrange v. Heller,
It was held by Vice-Chancellor Pitney in North Jersey StreetRailway Co. v. Inhabitants of the Township of South Orange,
The proofs disclose an attempt to use authority unreasonably and without due consideration of the rights of the complainants. An injunction may always go to restrain an illegal and excessive use of authority. Bayonne v. Borough of North Arlington,
It is clear that the commissioners in the instant case are not acting or assuming to act under the provisions of the ordinance in question, and for the purposes of this case it is entirely unnecessary to decide or consider the question raised as to the validity of the ordinance, for the ordinance does not provide for revocation of license, and what is still more important, does not attempt to classify the kinds of business to be licensed into such as may be regarded as conventional and ordinary kinds of business. The attempt to interfere with the business of the complainants therefore is unlawful and unwarranted and not predicated upon lawful authority.
Complainants will suffer irreparable damage, because relying upon the granted license, the complainant Drive-To Department Stores not only entered into a leasehold and became obligated by contracts for repairs and alterations, but in addition *227 thereto will suffer the loss of profits from the business which it is ready to open and conduct if the threatened action of the commissioners is not enjoined. For this damage complainants have no adequate remedy at law, and a court of equity will not, under the circumstances, withhold its preventive remedy.
The motion to dismiss the bill of complaint is denied and preliminary injunction will issue.