Lassiter v. City of Atlantic City

| N.J. | May 19, 1914

The opinion of the court was delivered by

Bergen, J.

The prosecutor was allowed two writs of certiorari to review his conviction for the violation of an orclinance fixing license fees in Atlantic City. The ordinance requires that a license be obtained by anj' person engaging or carrying on any business specifically set out in the ordinance, among them being “rolling chair station, stand or place from which rolling or invalid chairs are hired,” for which $100 is to be paid for each chair station. Another is “rolling chairs used for hire” upon payment of $15 for single chairs and $20 for double chairs.

The prosecutor not only maintained chair stations but also carried on the business of hiring rolling chairs without a license in either case, and for this violation he was prosecuted and convicted in each case. These convictions have been brought here by separate writs of certiorari, but, as the same questions are involved, they were argued together and will be considered and disposed of in the same manner.

The ordinance was approved August 6th, 1913, and on the 25th day of August, in the same year, writs of certiorari were allowed the prosecutor to review the ordinance, and on November 4th, 1913, judgments were entered declaring the ordinance void on the motion of the counsel for the city. While these writs were pending, tiie commissioners of Atlantic City amended section 9 of the ordinance which was approved September 9th, 1913, previous to the judgment declaring the ordinance void.

The first question raised on the argument was, does this amendment of one section of the ordinance avoid the judgment setting aside the entire ordinance? It is argued that the only fault in the original ordinance was found in section 9, but there is nothing in this record which shows that the former judgment, which set aside the entire ordinance, was based upon the illegality of section 9, even if that would remove the difficulty. We are of opinion that if the amendment of September 9th became a part of the ordinance at that time, the subsequent determination that the entire ordinance was invalid would carry with it the amendment. If it did not, then it was an attempt to amend an ordinance that was void, but, in our opinion, the amendment could not become a part of the ordinance then before the court, and could not become effective, if at all, unless the ordinance was sustainable, because if it was no ordinance in law when the city undertook to amend it, there was nothing to amend and the amending ordinance standing by itself did not provide for any licenses. There can be no doubt of the right of the city to pass a new ordinance dealing with the subject-matter, even while the former was under review, and so far as it regulates the license question it would be good, but an amendment cannot restore an ordinance in tolo which the court subsequently declared void, for then there was no valid ordinance in existence, except, perhaps, the one passed as an amendment, which, standing by itself, would not support the present conviction.

In Bowman v. Caldwell, 18 N. J. L. J. 313, an ordinance granting a franchise to a street railway was under review, and the municipality having adopted a new ordinance, application was made for a second writ, and one of the reasons urged was that the first ordinance being removed to the Supreme Court, the common council was restrained not only from proceeding under the first ordinance, but from all official action concerning the matter. Mr. Justice Depew said in that case that a new ordinance might be adopted because the effect of “the writ is confined within the scope of the record that it removes and can only operate to restrain the further proceedings” under that official record.

We think from this that if the second ordinance had not superseded the first and had only been an amendment to the one under review, the municipality would have been restrained by the writ from amending proceedings then under review by that record, and while the amending ordinance was good as an independent act, it could not be made a part of the ordinance reviewed. We are of opinion that in the present case the void ordinance was not restored by the amendment and that there was no ordinance in Atlantic City requiring the license insisted upon by the city, and, therefore, the convictions cannot stand. This conclusion makes it unnecessary to consider the other points raised by the prosecutors. The convictions will be set aside.