Garden State Lines v. Town of Nutley , 11 N.J. Misc. 502 ( 1933 )

Per Curiam.

This writ brings up the conviction of the prosecutor in the Recorder’s Court of Nutley for the violation of an ordinance of that town. The ordinance requires, among other things, that all operators of auto buses within the town shall register with the town clerk the name of each and every driver employed by such operator before permitting such driver to operate a bus. The complaint was for violation of this provision.

The ordinance provides a penalty of a fine of $25 for the first violation and $50 for each subsequent violation. The prosecutor was convicted and a fine of $25 was imposed.

Several points are made for the prosecutor, but the first is sufficient for a disposition of the case. It is pointed out, and correctly as we think, that the Home Rule act of 1917 by section 7 of article X (Pamph. L. 1917, p. 347) provides a maximum penalty either of a fine or imprisonment and confers power on the magistrate before whom a violator is convicted of imposing a fine or term of imprisonment, not exceeding the maximum, obviously in his discretion. The ordinance, however, gives no such latitude and undertakes to require a definite and unchangeable penalty for both the first and second offenses. This is beyond the power of the municipality and renders the conviction unlawful. Massigner v. Millville, 63 N. J. L. 123; 43 Atl. Rep. 443. Dor this reason the conviction will be set aside, with costs.

It is unnecessary to consider any of the other points raised.