
    ABE FRIEDMAN, PROSECUTOR, v. GEORGE W. MAINES, RECORDER OF THE BOROUGH OF FAIRLAWN, AND THE MAYOR AND COMMON COUNCIL OF THE BOROUGH OF FAIRLAWN, NEW JERSEY, RESPONDENTS.
    Submitted May 16, 1930
    Decided September 8, 1930.
    
      Before Justices Pareer, Campbell and Bodiee.
    For the prosecutor, Mendelsohn <& Mendelsohn. .
    Eor the respondents, Maclcay & Maclcay. ,
    
   Per Curiam.

The prosecutor was convicted of a violation of an ordinance of the borough of Eairlawn concerning junk and junk yards, and was fined $150 and costs.

Of the many grounds urged for reversal, the following need only be considered.

Section 3 of the ordinance in question provides: “Application for such license shall be made to the mayor and common council of the borough of Eairlawn in writing, and such application shall be signed by at least seventy per cent, of the property owners owning property within a radius of three hundred feet of such junk yard.” This section places the power to grant licenses with the property owners in the vicinity. This power cannot be so delegated by the municipality. Levy v. Mravlag, 115 Atl. Rep. 350.

Section 5 of the ordinance provides for imprisonment not exceeding ninety days or a fine of $150, or both.

Pamph. L. 1917, ch. 152, art. 10, § 7, provides that the governing body of every municipality may prescribe a penalty for violation of any ordinance, either by imprisonment in the county jail not exceeding ninety days, or a fine not exceeding $200, or both.

It will be seen that the ordinance should only have fixed the maximum of fine as provided by the statute, leaving to the magistrate the exercise of the discretion imposed by the statute. Instead, the council of the city exercised this discretion in the ordinance without reference to the offender or the circumstances of the violation, and deprived the magistrate of any consideration of whether his discretion should be exercised in dealing with the offender to inflict a lesser fine. Massinger v. Millville, 63 N. J. L. 123, 126.

The conviction will be set aside.  