Siciliano v. Township of Neptune

The opinion of the court was delivered by Voorhees, J. The return to the writ which removes^ the proceedings of the township committee, relating to the passage of the ordinance, shows no conviction or proceedings to enforce the ordinance against the prosecutor. Mo irregularities in its passage have been pointed out. Under the authority of Rosencrans v. Eatontown, 51 Vroom 227, the ordinance can be adjudged to be void, before conviction and before action to enforce it has terminated in a judgment, only where it appears that it is void in toto. The reasons assigned do not present a case of that breadth. The ordinance must stand as against this writ, which will be dismissed. The other writ presents a different problem, because the prosecutor has been convicted of a violation of the municipal by-law. It is urged that the ordinance grossly discriminates between the two license fees, without reason or justification, in that it fixes $13 for a license for “every automobile, motor truck or motor vehicle used in the business of delivering goods, but not in the express business,” while for every express wagon or motor vehicle used in delivering express matter a fee of $100 is exacted. Wagons and motors employed in an express business are [161] burdened with a high exaction, while the same class o£ vehieles, when not engaged in the express business, escape with a nominal charge. The name of the business in which they are employed seems to be the test, while the character of the use, namely, transportation and delivery of goods, may be the same. The legislative warrant for imposing license fees found in chapter 285 of the laws of 1908 (Comp. Stat., p. 3501, § 186) does not authorize the arbitra^ and oppressive distinctions here made. The law'is well settled that unwarranted discrimination in particular cases, or arbitrary charges, cannot be made by ordinances, hut that such regulations should be, as far as possible, general and impartial in their operation, and not such as to restrain trade or contravene the common right. Dill. Mun. Corp., § 322 at seq.; Morgan v. Orange, 21 Vroom 389; Kolb v. Boonton, 35 Id. 163; other cases have been collected in 28 Cyc. (at pp. 370, 750). We are of opinion that the ordinance is not general, but in imposing a fee of $100 upon the prosecutor, while subjecting others using like vehicles for a similar end to a small fraction of that sum, is discriminatory and unreasonable, as against the prosecutor. This disposition of the case renders it unnecessary to examine the other reasons assigned for reversal. The conviction of the prosecutor brought under review will be set.aside, with costs.