Opinion
Submitted October 16, 1936 —
Decided April 15, 1937.
The provision of an ordinance that a license to carry on the business of conducting a junk yard should not be issued to a non-resident is unreasonable and discriminatory, but the remedy is by mandamus to compel consideration of the application for a license and not by the conduct of such business in violation of the valid portions of the ordinance without any license whatever.
On certiorari.
Before Justices PARKER and LLOYD.
For the prosecutor, Mendelsohn Mendelsohn.
For the respondents, Charles F. Lynch, Salvatore D. Viviano and Frederick C. Vanhof.
The writ in this case brings up the conviction of the prosecutor, a citizen of New York, for violating an ordinance prohibiting the maintenance of a junk yard in the city of Paterson without a license being first obtained therefor, together with the ordinance upon which the conviction was based.
The ordinance and conviction based thereon are claimed to be invalid because by its terms the ordinance exacts that no person not a citizen of the United States and a resident of the city for two years next preceding the application for license shall be licensed.
The ordinance is both unreasonable and discriminatory under our cases in so far as it excludes non-residents from license. Westfield v. Stein, 113 N.J.L. 1 , and cases there cited.
But this does not avail the prosecutor to have the conviction set aside. His remedy was by mandamus to compel the consideration of his application for a license subject to the lawful features of the ordinance but without regard to the illegal provision of non-residence contained therein; and not to attempt to maintain a junk yard in violation of the valid portions of the ordinance without the issue of any license whatever. Fields v. Duffy, 115 N.J.L. 319 .
The writ is dismissed, with costs.