Gilman v. NewarkGilman v. Newark
This action in lieu of prerogative writs is instituted by plaintiffs Frank E. Gilman and Eleanor M. Kures against the City of Newark, the mayor and council thereof and John Arthur, the city building inspector. It seeks the invalidation of a certain ordinance adopted on January 4, 1961 regulating and licensing rooming houses in the City of Newark.
The complaint charges that the provisions of the ordinance under attack are unconstitutional and invalid in that:
“(a) Said provisions confer upon the administrative officers therein referred to, unlimited and arbitrary discretion, containing no standards or yardstick by which such authority may be adequately and properly measured.
(b) Said provisions are vague and indefinite, in enabling those effected thereby to determine with reasonable certainty the proper scope thereof.
(c) Said provisions are discriminatory, unreasonable, afford no fair treatment of all persons within the same or comparable category, and are arbitrary, oppressive and capricious.
(d) Said provisions do not give the equal protection of the law to persons with respect to the ownership, operation and maintenance of comparable real estate thereby attempted to be affected.
(e) The classification contained in the said provisions with respect to the property to be thereby effected is artificial, invalid and unreasonable.”
It is further urged that the unconstitutional paragraphs are so intimately interwoven and related with the essential and major portions of the ordinance as to be indivisible and inseparable therefrom, and that the entire ordinance is thereby invalid and unconstitutional. The ordinance is likewise asserted to constitute a violation of due process by reason of the alleged failure to provide for notice in the event of a violation.
Initially, it is contended that the ordinance is invalid because of the failure to republish certain amendments thereto. N.J.S.A. 40:49-2 requires that where an ordinance has been advertised for final passage and an amendment is adopted “substantially altering the substance of the ordinance,” adoption of the ordinance must be deferred
“THE CITY CLERK CALLED ATTENTION TO A NUMBER OF AMENDMENTS TO THE ORDINANCE WHICH WERE BEING MADE BY THE COUNCIL AS A RESULT OF FURTHER STUDY AND RECOMMENDATIONS MADE BY VARIOUS GROUPS OF PEOPLE.” (Emphasis added)
The amendments thereupon adopted may be said to:
(a) Permit additional exemptions from the operation of the ordinance as regards rooming houses.
(b) Clarify the meaning of certain provisions with reference to dwellings.
(c) Reduce the requirements with reference to natural ventilation in bathrooms in dwellings.
(d) Eliminate the prohibition against gas burning appliances in sleeping rooms in dwellings so as to permit certain gas appliances to be used.
(e) Extend the time when the provisions of the ordinance as to rooming houses shall go into effect from January 1, 1961 to January 1, 1962.
(f) Extend the time within which application for a rooming house license shall be filed from January 1, 1961 to May 1, 1961.
(g) Reduce the license fee by requiring that application for a rooming house license be accompanied by the fee for one year instead of two years.
(h) Limit the maximum fee for a rooming house license to $50.
(j) Reduce the two-year license requirement to a one-year one.
(k) Delete the proviso that rooming house janitors, caretakers, housekeepers, owners, operators, or persons charged with the carrying out of certain provisions of the ordinance shall reside on the premises.
(l) Extend the use of single one-plate gas burners to sleeping rooms.
It can thus be seen that the effect of such of the amendments as affected rooming house operators was to ease the burden imposed by the ordinance upon them in the manner and to the extent indicated.
It is not every amendment that is required to be republished as ordained by N.J.S.A. 40:49-2, but only such as substantially alter the substance of the ordinance. Manning v. Borough of Paramus, 37 N.J. Super. 574 (App. Div. 1955). The inquiry involves a mixed question of law and fact. The words of the amendment are to be assessed in the context of the provision of which they are a part and the basic policy of the legislative enactment. “Substance” in the statutory intendment has reference to the essential elements of the legislative act and the public policy of acts in pari materia. Wollen v. Fort Lee, 27 N.J. 408, 420 (1958).
The amendments in question did not constitute substantial changes altering the substance of the ordinance. Their proposed effects were in the form of additional gratuities rather than additional burdens. Plaintiffs have failed to establish that the amendments were of such legally consequential materiality, in their contributive relation to the substantive body of the ordinance, that their inclusion therein ought to be regarded as a change which essentially altered the manifest objective intent and materiality of the ordinance. Manning v. Borough of Paramus, supra, 37 N.J. Super., at p. 581. The plaintiffs were not aggrieved thereby. Wollen v. Fort Lee, supra, 27 N.J. p. 420. The ordinance was therefore validly adopted.
At the trial some six witnesses were called in addition to plaintiffs. They included a contractor and a tenant called by the latter, the Superintendent of the Inspection Division, the Assistant Health Officer, the Director of the Department of Health and Welfare, and the Chief Inspector of the Bureau of Combustibles and Fire Risks. From the testimony of plaintiff Gilman it appears that the building in which he resides, which is also operated as a rooming house, has been so operated by himself or by others since 1918. No common cooking facilities are furnished. The building is soon to be condemned to make way for a housing project. Plaintiff Mrs. Kures testified she owned and operated two converted dwellings used as rooming houses. She had been operating rooming houses since 1941 when she first converted a dwelling to that use. In one of her buildings, used as a rooming house, there are both back and front stairs so that the cost of compliance with the fire regulations would be higher than usual. Additional testimony bearing upon the contentions of the parties will be referred to infra.
Plaintiffs urge that the ordinance is invalid in that by singling out rooming houses for licensing and regulation, it denies to the proprietors thereof, including plaintiffs, the equal protection of the law. They assert that a rooming house, as defined in the ordinance, differs from a dwelling, as defined therein, only in the number and use of toilets, and that such classification is unreasonable and bears no relation to the object of the ordinance. They also attack that portion of the ordinance which excludes from its purview units occupied by relatives by blood or marriage of the owner or occupier.
A clear reading of the ordinance in the light of common experience is sufficient to establish that rooming houses differ from dwellings in many respects. The absence of individual bathrooms is but one of these. Likewise, the
The ordinance defines a rooming house as one containing:
“(a) one or more rooming units, occupied by three or more persons, or
(b) three or more rooming units rented or available for rental, providing, however, that persons related to the owner or operator and residing with said owner or operator on the premises within the relationship herein defined, shall not be counted for purposes of this definition. * * *”
“Related persons” are defined in the ordinance as two or more persons who live together in one dwelling unit, maintain a common household, and
“* * * who are related by blood, marriage or adoption, except as hereinafter provided. For the purpose of this ordinance, related persons includes only a husband, and wife, son, son-in-law, daughter, daughter-in-law, brother-in-law, sister-in-law, nephews and nieces, father, father-in-law, mother, mother-in-law, brother and sister, grandparents, grandchild, stepchild, adopted child and bona fide family servants living in and working full time on the premises.”
It is asserted that there is no conceivable relationship between this classification and the purported objects of the ordinance, and that all owners or operators of houses where rooms are rented who have related persons residing in the premises should be required to count such persons in arriving at a determination as to whether their premises constitute a rooming house subject to the provisions of the ordinance.
The rule is well settled that a classification for the purpose of licensing will be upheld by the courts unless it is unreasonable, arbitrary or discriminatory. 29 Am. Jur. 30, § 35 (1960). The burden which rests upon one who asserts that a given piece of legislation contravenes the equal protection clause is set forth in Two Guys From Harrison, Inc. v. Furman, 32 N.J. 199, 218 (1960), where the court quoted with approval from N.J. Restaurant Ass‘n, Inc. v. Holderman, 24 N.J. 295, 300 (1957), as follows:
“The burden of demonstrating that a statute contravenes the equal protection clause is extremely formidable, as is attested by the long trail of failure. In addition to the strong presumption of constitutionality with which all organic challenges are approached, one who assails a statute on this ground must contend with principles of unusual elasticity. It is easily stated that the classification (1) must not be palpably arbitrary or capricious, and (2) must have a rational basis in relation to the specific objective of the legislation. But the second proposition is qualified by limitations which compound the difficulties of one who assails the legislative decision. Thus it is not enough to demonstrate that the legislative objective might be more fully achieved by another, more expansive classification, for the Legislature may recognize degrees of harm and hit the evil where it is most felt. * * * The Legislature may thus limit its action upon a decision to proceed cautiously, step by step, or because of practical exigencies, including administrative convenience and expense, * * * or because of `some substantial consideration of public policy or convenience or the service of the general welfare.’ DeMonaco v. Renton, 18 N.J. 352, 360 (1955). Hence it may `stop short of those cases in which the harm to the few concerned is thought less important than the harm to the public that would ensue if the rule laid down were made mathematically exact.’ Dominion Hotel, Inc. v. State of Arizona, supra, (249 U.S. [265] at page 268, 39 S.Ct. [273] at page 274 [63 L.Ed. 597]). * * *”
It went on to hold that in applying the above cited principles, it was necessary to ascertain the evil the Legislature found and then measure against it the reasonableness of the classification.
And in Sarner v. Union Tp., 55 N.J. Super. 523 (Law Div. 1959), it was held:
“It has been said that the courts will not pass judgment upon the wisdom of the Legislature in enacting a law, but will only ascertain if the Legislature has kept within its powers. State v. Garden State Racing Ass‘n., 136 N.J.L. 173 (E. & A. 1947). This case also holds that the Legislature has broad powers to classify and, so long as the benefits derived and the burdens imposed bear alike upon every one within the class and the classification can be justified upon any reasonable theory, it cannot be declared a violation of any constitutional provision. But such classification must have some reasonable and just relation either to the general object of the
While equal protection does not foreclose reasonable legislative classification, the classification must be non-discriminatory and bear a reasonable relationship to the general object of the legislation.”
In Sarner the court invalidated a Sunday closing law, L. 1958, c. 138,
“* * * While the due process and equal protection guaranties are not coterminous in their spheres of protection, equality of right is fundamental in both. Each forbids class legislation arbitrarily discriminatory against some and favoring others in like circumstances. It is essential that the classification itself be reasonable and not arbitrary, and be based upon material and substantial distinctions and differences reasonably related to the subject matter of the legislation or considerations of policy, and that there be uniformity within the class. The equal protection of the laws means that no person or class of persons shall be denied the protection of the laws enjoyed by other persons or classes of persons under similar conditions and circumstances, in their lives, liberty, and property, and in the pursuit of happiness, both as respects privileges conferred and burdens imposed.”
But the Washington National case is readily distinguishable from the one sub judice. There, the exemption of persons in the classification named from the provisions of the act bore no reasonable or just relationship to the general object of the legislation or to any substantial consideration of public policy or convenience. The activities of the persons sought to be exempted from coverage came within the ambit of the general objects of the statute, yet they were singled out for special favor over other agents and employees. Such arbitrary selection cannot be justified by designating it as classification. Sarner v. Union Tp., supra, 55 N.J. Super., at p. 533; Gulf, C. & S.F.R. Co. v. Ellis, 165 U.S. 150, 17 S.Ct. 225, 41 L.Ed. 666 (1897).
The question here involved is whether a rational basis exists for the classification set up by the ordinance. As to this, it must be kept in mind that if any state of facts can reasonably be conceived of which would support the tendered classification, the ordinance must be held not to be violative of equal protection. N.J. Restaurant Ass‘n, Inc. v. Holderman, supra; Wilson v. City of Long Branch, 27 N.J. 360, 377 (1958); cf. Gundaker Central Motors v. Gassert, 23 N.J. 71 (1956). In determining whether the requisite facts are reasonably conceivable, “* * * a judge may draw upon his general knowledge, yet the further removed a judge‘s private experience is from the economic scene in which a law is to function, the greater will be his reluctance to conclude that a claimed factual basis is merely fanciful.” N.J. Restaurant Ass‘n, Inc. v. Holderman, supra, 24 N.J., at pp. 301-302.
Plaintiffs further contend that if rooming houses are to be separately classified for purposes of licensing and regulation, the elimination of relatives of the owner from consideration in determining the number of occupants, amounts to a deprivation of the equal protection of the laws as to them and others similarly situated. It is true that certain of the evils sought to be corrected by the ordinance are common to all rooming houses, whether occupied by relatives of the owner or not. But it is not necessary for an ordinance to be all-inclusive. A municipal governing body may recognize degrees of harm and proceed to attack them step by step. N.J. Restaurant Ass‘n, Inc. v. Holderman, supra; Robson v. Rodriquez, 26 N.J. 517 (1958); Board of Health of Weehawken Tp. in Hudson County v. N.Y. Central R. Co., 4 N.J. 293 (1950). In Brennan v. City of Milwaukee, 265 Wis. 52, 60 N.W.2d 704 (Sup. Ct. 1953), cited by plaintiffs, the court appears to have substituted its judgment for that of the municipality, something which our courts have declined to do.
In the present case, it has not been established that there was no justification for a classification which separately regulates rooming houses and, in defining them, excludes those occupants related to the owner or operator of the unit. As to the criticized definition, ordinances which define operations of the type here involved in terms of the occupant but which exclude those related to the owner or
The plaintiffs have failed to establish that the classification is palpably arbitrary or capricious and that it has no rational basis in relation to the specific objectives of the ordinance. On the contrary, it would appear that the classification in question has reasonable and just relation to the general object sought to be achieved by the ordinance. Sarner v. Union Tp., supra, 55 N.J., at p. 533. To fail to thus exclude related persons in determining the number of roomers would, among other things, discourage children from caring for their parents, and parents from caring for their children. Those having available rooms should be free to make such rooms available to related persons without suffering penalties by being compelled to comply with the requirements of the ordinance in question. In this way, roomers who are related to the proprietor would have the opportunity of retaining some of the advantages of family life.
The relationship between owners and operators of rooming houses and members of their families differs generally from their relationship with the usual run of roomers. Their arrangement may or may not call for compensation. The related owner and operator is in a better position to observe and control the activities of near relatives with reference to the objects sought to be achieved by the ordinance, and to take appropriate and necessary precautions in connection therewith. In addition, the activities of such related occupants relative to the precaution required by the ordinance, are more likely to be in compliance with the wishes of the owner and occupier than the activities of strangers.
It is next contended that certain specific provisions of the ordinance are unreasonable, arbitrary and discriminatory, and thus amount to a denial of due process.
The ordinance in question is entitled:
“AN ORDINANCE RELATING TO HEALTH AND SANITATION CONDITIONS GENERALLY OF BUILDINGS AND PROVIDING ALSO FOR THE REGULATION AND LICENSING OF ROOMING HOUSES; REPEALING THE EXISTING SECTIONS 15.524 TO 15.537 INCLUSIVE, OF ARTICLE XI OF THE REVISED ORDINANCES OF THE CITY OF NEWARK, 1951 AS AMENDED AND SUPPLEMENTED, AND CREATING NEW SECTIONS 15.524 TO 15.537, INCLUSIVE, UNDER ARTICLE XI AFORESAID, IN LIEU OF THE REPEALED SECTIONS.”
Its objectives are summarized as:
“* * * to protect the health, safety, welfare and morals of the people of The City of Newark by enacting a housing code which establishes minimum housing standards, determines the respective responsibilities of owners, operators and occupants of dwellings and rooming houses now in existence or that may hereafter be constructed or established and provides for the enforcement of provisions pertaining to such standards and penalties for the violation of such provisions.” (Section 15.524.1)
“`ROOMING UNIT’ shall mean a room or group of rooms forming a single habitable unit, other than a dwelling unit, which is rented or available for rent for sleeping purposes with or without cooking facilities.”
A dwelling unit, as distinguished from a rooming unit, is defined as:
“`DWELLING UNIT’ shall mean and include any room or group of rooms located within a dwelling and forming a single habitable unit with facilities which are used or designed for living, sleeping, cooking and eating, bathing and toilet purposes.” (Section 15.524.2)
Authorization for enactment of the ordinance in question is found in
“d. Hotels, boarding houses, lodging and rooming houses, trailer camps and camp sites, and all other places and buildings used for sleeping and lodging purposes, * * *.”
It is asserted that the exercise of the police power in the manner provided in the ordinance constitutes an unreasonable curtailment of the right of the individual plaintiffs to engage in the lawful business of operating a rooming house.
In Lakewood Express Service v. Board of Public Utility Com‘rs, 1 N.J. 45, 50 (1948), the test to be applied in determining whether an attempted exercise of the police power contravenes constitutional due process was stated as follows:
“But the exercise of such power is subject to the limitation that it must be reasonable under the conditions and the legislation must have a substantial relation to its object and must not be arbitrary or discriminatory. Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522, 535, 43 S.Ct. 630, 67 L.Ed. 1103, Nebbia v. New York, 291 U.S. 502, 535, 54 S.Ct. 505, 78 L.Ed. 940. In other words the legislation must bear a real substantial relation to the public health, safety, morals or some other phase
In the prior case of N.J. Good Humor, Inc. v. Bradley Beach, 124 N.J.L. 162, 168 (E. & A. 1940), it was held:
“Broad as it is, the police power is not without its limitations. Its exertion must be directed to a legitimate end, i.e., the protection of a basic interest of society rather than the mere advantage of particular individuals. Home B. & L. Ass‘n v. Blaisdell, 290 U.S. 398; 54 S.Ct. 231; 78 L.Ed. 413. And it is requisite that the means employed in its exercise have a rational relation to that end, and be altogether free from arbitrariness. The restraints and regulations imposed for the general good and welfare must needs have the virtue of reasonableness. There cannot be in the name of police regulation, an unreasonable and oppressive curtailment of personal or property rights. A measure that goes fairly beyond the public need designed to be served does not take the category of a valid police regulation.”
And further:
“And it goes without saying that an exertion of the police power, affecting personal and property rights, is nugatory unless made in good faith for the attainment of a public object within its cognizance. If the dominant purpose be the service of private interests under the cloak of the general public good, it must be adjudged a perversion of the power. The principal is universal that local legislation in the exercise of this power shall be characterized by entire good faith; if this be lacking, it will be struck down by the courts as an abuse of power. As was said in an early Massachusetts case, `the law will not allow the right of property to be invaded, under the guise of a police regulation for the preservation of health, when it is manifest that such is not the object and purpose of the regulation.‘” (at p. 169)
In Schmidt v. Board of Adjustment of City of Newark, 9 N.J. 405, 414 (1952), Justice Heher, speaking for a unanimous court held:
“* * * The police authority does not lend itself to expression in terms of a definitive formula that will automatically resolve every case, for its quality and scope are commensurate with the public
And further:
“The police power has been termed `one of the most essential of powers, at times the most insistent, and always one of the least limitable of the powers of government.‘”
Generally the exercise of the police power is contained by the rule of reason which inhibits arbitrary action and requires that there must be a substantial connection between the means invoked and the public interest designed to be advanced. The test has been said to be whether, considering the end in view, the measure “passes the bounds of reason and assumes the character of a merely arbitrary fiat.” Id., at p. 416. Reasonableness has been described as a two-sided coin. On one side is the adverse impact of the restriction upon those who assert its unreasonableness: on the other are the social and policy considerations which lead to the adoption of the regulation. The final assessment
A municipal ordinance will be presumed to be reasonable in the absence of proof to the contrary. Ivins v. Trenton, 68 N.J.L. 501 (Sup. Ct. 1902), affirmed 69 N.J.L. 451 (E. & A. 1903). Thus, the burden of proof is upon the plaintiffs to establish the unreasonableness of the ordinance sub judice. Ibid.; Socony Mobil Oil Co. v. Ocean Twp., 56 N.J. Super. 310, 319 (Law Div. 1959), affirmed 59 N.J. Super. 4 (App. Div. 1960); 6 McQuillin, Municipal Corporations (3d ed. 1949), § 20.08; Neumann v. Hoboken, 82 N.J.L. 275, 278 (Sup. Ct. 1912); Del Vecchio v. South Hackensack Twp., 49 N.J. Super. 44 (App. Div. 1958).
It is the plaintiffs’ contention that the ordinance in question has for its object and purpose the elimination of rooming houses altogether and that this denies to them the right to engage in a legitimate business, citing Watchung Lake, Inc., v. Mobus, 119 N.J.L. 272 (Sup. Ct. 1938), and Messina v. Mayor and Council, etc., of Lodi, 18 N.J. Super. 503 (App. Div. 1952). They refer particularly to what they characterize as the unreasonably stringent requirements of the fire prevention and cooking provisions of the ordinance, which, they assert, will have the effect of forcing many rooming house owners and operators out of business.
The fire prevention section of the ordinance contains some nine subsections. The four sections complained of are as follows:
“Section 15.531.5
FIRE PREVENTION PROVISION.
* * * * * * * *
(f) Smoking in Bed Prohibited.
Smoking in bed is prohibited. Each bedroom in a rooming house shall have a sign conspicuously displayed reading `Smoking in bed prohibited.’
(g) Doors To Be Self-closing.
All doors leading from rooming units in a rooming house to the common hallway or other common area shall be equipped with self-closing devices in operating condition.
(h) Fire Alarm System.
Every rooming house shall be equipped with a fire alarm system of a type approved by the Director of the Fire Department and so installed as to detect fire in any part of the premises and give automatic warning of fire. Warning sounding devices shall be so located that a warning sound of sufficient loudness will reach all occupied dwelling units and rooming units in the premises.
(i) Fire Prevention Provision.
Any premise utilized as a rooming house with rooming units above the ground floor level shall have fire resistant partitions enclosing each common hallway or areaway above the ground floor level and also self-closing fire doors leading from each level to the stairwell. All partitions and doors of said hallways and areaways on all floor levels shall have a minimum fire rating of one hour. Stairs leading from the cellar or basement up to the first floor shall be enclosed with masonry walls no less than 8” in thickness and shall have self-closing fire proof doors at the top and the bottom of the stairs.”
Since the provisions in question have a substantial relation to the asserted objects of the ordinance, they must
The provision requiring the installation of a fire alarm system capable of detecting fires in any part of the premises and of giving automatic warning thereof, is likewise reasonable and represents a proper exercise of the police power. Such fire alarm systems are not unusual. They are found in business and industrial establishments, hotels and public buildings. They may be, and are not infrequently, installed in private homes. An even more elaborate system is required in the case of hotels.
It is urged that the provisions of subsections (g) and (i), while perhaps having some relation to the objects sought
In support of plaintiffs’ claim that subsection (i) of the ordinance is invalid, evidence was adduced indicating that the cost of making the necessary changes to comply with the ordinance in a rooming house operated by one of plaintiffs would be $1,609.75; that in another such rooming house which contained two such stairways the total cost would be $3,074.60. The mere fact that plaintiffs would undergo pecuniary expense if the ordinance is enforced, standing alone, does not render it invalid. 6 McQuillin, Municipal Corporations, § 20.09; Dennis v. Village of Tonka Bay, supra. Proof, at least, of the value of plaintiffs’ premises, of which none was produced here, is a basic requisite to determination of the reasonableness of the provisions referred to. But beyond that, consideration of the purpose for which they were enacted is of primary importance. The testimony indicates that they were based upon recommendations of a committee of the Board of Engineers of the Fire Department of the City of Newark and were calculated to curtail the spread of fires caused by open stairwells. The provisions in question are reasonably calculated to serve this end. Photographs received in evidence on the part of the city demonstrate the manner in which fires tend to spread through non-fireproof buildings, particularly through open stairways and hallways. Many rooming houses consist of old converted dwellings and are not fireproof. With respect to the detection and control of fires they lack “round-the-clock” services of watchmen and other employees which hotels enjoy. They likewise lack the close association and supervision enjoyed by families residing in dwellings. Both of the latter are
Viewed in this light, the provisions in question do not appear to be unreasonable or arbitrary. From the evidence adduced it appears that some 800 applications for rooming house licenses had been received by the city up until the time of the hearing. Based upon O.P.A. data compiled in 1942, the number of rooming houses in the City of Newark was estimated to exceed 3000. The record is devoid of evidence that the average rooming house operator could not meet the expense of compliance with the provisions in question, or that such expense would preclude the continued operation of such businesses. On the contrary, the improvements in question would undoubtedly render the premises more desirable from a safety standpoint. The probability that this might mean added income to rooming house owners, while not certain, is not to be discounted.
With respect to cooking facilities, the ordinance provides:
“Section 15.531.6
COOKING AND EATING FACILITIES IN ROOMING HOUSES.
(a) No community or common cooking and eating facility shall be allowed, except that cooking and eating facilities in boarding houses shall be permitted where the operator, or his agents, servants or employees is in charge of the cooking and dining facilities and prepares and serves the food to guests.
(b) Cooking and eating facilities in rooms shall be permitted only upon compliance with the following conditions:
(1) Cooking facilities in sleeping rooms shall: (a) Be limited to electrical appliances * * * and to a single one-plate gas burner which is permanently connected by rigid pipe to the source of gas supply in accordance with the plumbing code of the City of Newark.
* * * * * * * *
(2) Cooking facilities in rooms other than sleeping rooms shall be permitted in rooming units provided that all of the facilities
* * * * * * * *”
The provisions referable to one-plate gas burners are said to be arbitrary and discriminatory in that they are at variance with a provision of the Tenement House Act (
“The State Tenement House Statute from 1904 to 1959 stated that if there were more than two persons living on the premises, cooking independent of one another, it is a tenement house. In 1959 the amendment was added to allow three as long as a third did not have a full cooking unit. The Tenement House Board has for the last four years attempted to say that all rooming houses with one-plate burners are tenement houses and that if you have more than three cooking units you are a tenement house, and of course the rooming houses cannot comply because the first requirement of a tenement house is that each house must have a private toilet.
So the state says that you cannot have one-plate burners, you can only have a community kitchen, the community kitchen by definition being more than one person using it. The city ordinance specifically outlaws community kitchens and says you can only have one-plate burners. The net result is no cooking units in these rooming houses. * * *”
R.S. 55:1-24 was amended by chapter 12 of the Laws of 1959, and later by chapter 84 of the Laws of 1961, the latter being effective June 26, 1961. The 1959 amendment withheld from the definition of a tenement house a unit for occupancy by three families living independently, where the space provided for at least one of such families was not equipped with full cooking facilities, with certain provisos not here relevant.
It is represented to the court by plaintiffs that the Tenement House Board has been attempting to classify all rooming houses with one-plate burners as tenement houses. We are not here concerned with the enforcement of the Tenement House Act or with what would be the result if roomers
Subsection (a) of § 15.531.6, which is also under attack, prohibits community or common cooking and eating facilities except in boarding houses, etc. It bears a substantial relation to the objectives of the ordinance and, since the
The next attack is upon the provisions of the ordinance prohibiting the occupancy of rooming houses by minors except in certain specified instances. It is urged that plaintiffs are precluded from renting lodgings for the use of infants and that their ability to derive income from their business is thus being restricted without due process. Section 15.531.4 of the ordinance provides that:
“No minors shall be permitted to occupy any rooming unit in any rooming house except minors over the age of 18 years, emancipated minors, or minors registered in and attending an accredited college or institution of higher learning.”
As to this provision plaintiffs first urge that it is invalid by reason of the fact that it is in direct conflict with the provisions of
“Any person, firm or corporation or any agent, officer or employee thereof who:
a. Refuses to rent or lease any house or apartment to another person because his family includes children under 14 years of age; or
b. Makes an agreement, rental or lease of any house or apartment which provides that the agreement, rental or lease shall be rendered null and void upon the birth of a child —
Is a disorderly person.”
It is well settled that a municipality may not enact an ordinance which is in conflict with an applicable statute of this
In determining the validity of this provision, we turn first to the consideration of the object sought to be accomplished by the exclusion of children from rooming houses unless they be over 18 or emancipated or attending college. Mr. Nugent, the city health officer, when called as a witness was unable to shed any light on the reason for the provision from a health standpoint. It is difficult to conceive how excluding children under 18 and permitting those over that age constituted any contribution to the health of the occupants of a rooming house. The fact that emancipated minors and college students were likewise permitted, only adds to the confusion as to the object of the provision.
One of the well known causes of fires is smoking. From the standpoint of fire prevention, it would seem that emancipated minors, college students and those over 18 years of age, would be more likely to be smokers than children under 18. Or if the objects of the provision were to curtail or prevent immorality, it is again difficult to understand the exception in favor of those over 18, or those emancipated, or those attending college. Assuming, arguendo, that the provision in question had a substantial relation to the objects sought to be accomplished by the ordinance, we must balance the objects sought to be accomplished against the inconvenience which would be inflicted upon those whom the ordinance seeks to regulate. Clary v. Borough of Eatontown, supra, 41 N.J. Super., at p. 71. The effect of the ordinance is to effectively exclude from rooming houses all
The court is satisfied that there are many heads of families, particularly mothers, to whom a rooming house is a distinct boon. Whether by reason of the fact that the support granted to the mother is limited or by reason of the fact that she is compelled to work in order to support her family, she is unable to afford the more expensive accommodations represented by dwellings, apartments or hotels. The effect of the provision in question would be to separate such families. But it is in the public interest that families be kept together and that children in their growing and adolescent years have the companionship and guidance of their parents.
We next turn to consideration of the plaintiffs’ contention that the ordinance fails to provide adequate and specific norms and standards for the guidance of licensing officials in making determinations as to the issuance, renewal or denial of licenses. They particularly indicate § 15.530.4 and § 15.530.5 as examples of what they characterize as the absence of such standards.
In dealing with the question of standards the court is not confined to the specific terms of any one section of the ordinance, but must examine the entire ordinance, keeping in mind its objectives in the light of the surrounding circumstances. Ward v. Scott, 11 N.J. 117 (1952); Greggio v. Orange, 69 N.J. Super. 453, 461 (Law Div. 1961).
It would appear from a reading of the above summary that adequate and specific norms and standards have been set up to guide the administrative officers of the city in granting licenses for the operation of rooming houses. The ordinance is so specific in its various sections as to leave very little discretion either to the director or the supervisor, the officers primarily charged with the issuance of licenses. It is contended by plaintiffs that the provision which authorizes the director to “* * * prescribe reasonable terms, conditions or provisions for the abatement or correction of the violations reported by the inspection,” is
We next turn to the plaintiffs’ criticism of § 15.530.5, which concerns the procedure for renewal of licenses or for revocation or suspension thereof. This section provides that “If, during the term of any license or upon the filing of an application for renewal, * * * the Director shall determine that the licensee or applicant * * * was convicted of a crime involving moral turpitude * * *,” he “* * * shall recommend to the Supervisor that the license be revoked or that the renewal application be denied, as the case may be.” And further, “If during the term of any license or upon the filing of an application for renewal, * * * the Director shall ascertain that there are violations of this code or of any applicable codes or ordinances of the City of Newark, or that the licensee or applicant, * * * was convicted of an offense which reflects adversely on the operation or manner of operations or conduct of the rooming house * * *,” the director is required to forthwith send a copy of the ascertained violations and convictions by registered or certified mail to the licensee or applicant. He, in turn, may request a hearing on the alleged violations or convictions within five days, whereupon the director is required to hold such hearing within 25 days upon ten days’ notice to the applicant by registered or certified mail. At the hearing the director “* * * shall prescribe reasonable terms, conditions or
Section 15.530.6 provides for a further appeal by the applicant. If the director recommends to the supervisor of licenses the denial of an application for a license, or that a license be revoked or temporarily suspended, or that the renewal thereof be denied, the supervisor is required to act in accordance with such recommendation unless the applicant files a notice of appeal in the office of the supervisor. Thereupon the business administrator or his designee is required to hold a hearing within 25 days after the filing of a notice of appeal upon ten days’ notice to the appellant. At the conclusion of the hearing the business administrator is required to make a determination on the merits of the appeal. The supervisor of licenses is then directed to take such action as conforms with the determination made. If, however, the business administrator at the hearing prescribes terms, conditions or provisions for the abatement or correction of any violations by the applicant, the hearing is required to be continued to permit compliance therewith, by the applicant. If a reinspection reveals abatement or correction of the violations found, eventual granting of the license is provided for.
The provisions in question provide for the revocation of a license or the refusal of a renewal thereof if the licensee or applicant has been convicted of a crime involving “moral turpitude.” A similar standard has been prescribed in other
The court deems it to be a sufficient guide to the authorities charged with the issuance or renewal of licenses. Cf. Berardi v. Rutter, 42 N.J. Super. 39 (App. Div. 1956), affirmed 23 N.J. 485 (1957). The mere fact that the standards set forth are general rather than specific does not militate against their acceptance and validity. The exigencies of modern government have increasingly dictated the use of general rather than minutely detailed standards in regulatory enactments under the police power. Ward v. Scott, supra, 11 N.J., pp. 123-124; Greggio v. Orange, supra, 69 N.J. Super., pp. 461-462; cf. Berardi v. Rutter, supra; N.J. Bell Telephone Co. v. Communications Workers, etc., 5 N.J. 354, 371 (1950); In re Greenville Bus Co., 17 N.J. 131, 135 (1954); State v. Hotel Bar Foods, 18 N.J. 115, 124 (1955). Professor Davis, after a survey of many cases, including some from New Jersey, reached the conclusion that standards are not as important as procedural safeguards and outside checks upon discretionary power. 1 Davis, Administrative Law, §§ 2.08-2.15 (1958). Here procedural safeguards are not lacking. In the event of procedural unfairness, the courts are available.
Nor does the provision which provides for revocation, temporary suspension or refusal to renew for failure to abate or correct conditions caused by conviction of “an offense which reflects adversely on the operation or manner of operations or conduct of the rooming house,” invalidate this section. Plaintiffs argue that the ordinance should have spelled out with greater particularity the actual offenses which the municipal body had in contemplation. To set forth in detail each and every offense, the conviction of which would reflect adversely on the operation of a rooming house, would be an extremely difficult task. Assuming, arguendo, that further specificity could have been attained, a clear reading of the provision in question in the context
Plaintiffs also urge that the failure of the ordinance to provide for notice of and a hearing on violations as a prerequisite to prosecution in all cases, renders the ordinance invalid. § 15.534(a) provides, with certain exceptions, for the giving of notice of violations of the housing code by the director. The exceptions are contained in subsection (b) as follows:
“REQUIREMENT OF NOTICE OF VIOLATION OF CODE.
* * * * * * * *
(b) Notice Not Necessary In Certain Cases.
For the enforcement of subsections 15.525.2(e), 15.525.3(c), 15.525.7(h), 15.525.9, 15.526(i), 15.526(j), 15.528(d), 15.530, 15.531.1(c), 15.531.3(a, b and c), 15.531.5(f) and 15.531.6 of this Housing Code, it shall not be necessary for the Director to first give notice of the violation or to first comply with Section 15.27 of the Revised Ordinances, 1951, or subsection 15.534(a) of this Housing Code before instituting proceedings in the Municipal Court for a penalty for violation of any of these sections, or subsections.”
Plaintiffs cite no authority which supports their contention. The violations referred to in subsection (b) are
Plaintiffs’ final attack is directed against the provision of the ordinance which reads as follows:
“Section 15.536. ORDINANCE TO ACT RETROACTIVELY.
This ordinance shall be construed to operate retroactively as well as prospectively.”
While retrospective laws are generally deemed unjust and oppressive, the Constitution of the United States does not in terms prohibit the enactment by a state or its subdivision, of such laws unless they partake of the character of ex post facto laws, impair the obligation of contracts or divest vested rights. 11 Am. Jur., Constitutional Law, § 365 (1937). Nor does our own Constitution, in terms, forbid them. Pennsylvania Greyhound Lines, Inc. v. Rosenthal, 14 N.J. 372, 384 (1954).
Thus the ordinance, if construed as imposing a criminal penalty for conditions which carried no criminal implications prior to its effective date, would be invalid.
But it is not required that it be so construed. Municipal ordinances are to be construed in the same manner as statutes. Guill v. Mayor and Council of City of Hoboken, 21 N.J. 574 (1956). Where there are two possible interpretations of a statute or ordinance, the one which will uphold the law is to be adopted in preference
The plaintiffs had acquired no vested right to continue to operate their premises as rooming houses. Under
“* * * Every citizen holds his property subject to the proper exercise of this [police] power, either by the Legislature directly
Plaintiffs thus held their property subject to appropriate municipal regulation in the field of health, safety, welfare and morals. Chicago & Alton R. Co. v. Tranbarger, 238 U.S. 67, 77, 35 S.Ct. 678, 59 L.Ed. 1204 (1915). They did not acquire immunity from the exercise of the police power because prior to the enactment of the ordinance, their property was in conformity with the then applicable ordinances. Queenside Hills Realty Co., Inc. v. Saxl, 328 U.S. 80, 66 S.Ct. 850, 90 L.Ed. 1096 (1946); Paquette v. City of Fall River, 338 Mass. 368, 155 N.E.2d 775 (Sup. Jud. Ct. 1959); cf. Prinz v. Paramus, 120 N.J.L. 72 (Sup. Ct. 1938), affirmed 121 N.J.L. 585 (E. & A. 1939); see also annotation in 109 A.L.R. 1117. It follows that the provisions of the ordinance should be construed to apply to all rooming houses operated after the effective date of the ordinance, regardless of whether they had been in operation prior thereto.
It remains to be determined whether the invalidity of § 15.531.4 renders the entire ordinance invalid. The rule is well settled that where all of the sections of a municipal ordinance are so intimately related as to form an integrated whole, the fact that one or more of its provisions are held to be illegal and unconstitutional renders the entire ordinance invalid. Tagmire v. Atlantic City, 35 N.J. Super. 11 (App. Div. 1955). On the contrary, where the provisions of an ordinance are separable, the invalidity of
In the case sub judice, § 15.531.4, the invalidity of which has been established, is not so intimately tied in with the remaining provisions of the ordinance as to require its entire invalidation. It can be readily exscinded from the ordinance without impairing the efficacy of the remaining provisions. Blake v. Pleasantville, 87 N.J.L. 426, 430 (Sup. Ct. 1915). They contain the essentials of a complete integrated enactment independent of the invalid section. Brundage v. Randolph Tp., 54 N.J. Super. 384, 395 (App. Div. 1959), affirmed 30 N.J. 555 (1959).
The independence of the respective parts indicates a legislative intention that the constitutional insufficiency of one part would not render the remainder inoperative. Washington National Ins. Co. v. Board of Review, supra, 1 N.J., at p. 556. This legislative intention is confirmed by the severability clause (§ 15.537) which reads as follows:
“Section 15.537. SEVERABILITY.
If any section, subsection, paragraph, sentence, clause or phrase of this ordinance should be declared invalid for any reason whatsoever, such decision shall not affect the remaining portions of this ordinance which shall remain in full force and effect; and to this end the provisions of this ordinance are hereby declared to be severable.”
Angermeier v. Sea Girt, 27 N.J. 298, 311 (1958); Yanow v. Seven Oaks Park, Inc., 11 N.J. 341, 360-361 (1953); 11 Am. Jur., Constitutional Law, 846, § 156.