Bray v. Damato

Citation57 A. 394,70 N.J.L. 583
PartiesBRAY, Police Justice, v. DAMATO.
Decision Date01 March 1904
CourtUnited States State Supreme Court (New Jersey)

(Syllabus by the Court.)

Certiorari on the prosecution of Joseph Damato to Joseph B. Bray, police justice, to review an ordinance of the city of Orange. Conviction set aside.

Argued November term, 1903, before GARRISON and GARRETSON, JJ.

Thomas S. Henry, for prosecutor. Thomas A. Davis, for defendant.

GARRISON, J. The prosecutor of this writ of certiorari was convicted of the violation of an ordinance of the city of Orange which provides as follows:

"No junkman or others shall attach any bell to any horse or wagon or cart, or use any noise-creating instrument or device or cry out for the purpose of attracting public attention or for procuring business, trade or custom in any of the streets of said city, under penalty of ten dollars for each and every offense."

The complaint was in these words:

"The complaint ["case," page 3J charged that defendant on March 5, 1903, at the city of Orange, 'the said Joseph Damato being the owner or one having charge of a certain wagon with horse attached to same, did use on said wagon noise-creating devices, to wit, a string of bells, which did ring and cause noise on a public highway, in violation,'" etc.

The record sent up by the police justice is as follows:

"Complaint being read, defendant pleaded guilty. Judgment in favor city of Orange for ten dollars, which was paid under protest."

The conviction is not justified by the facts before us on this return. Assuming every fact alleged in the complaint to be true— which is the effect of the defendant's plea thereto—the case stands upon the same footing as if the police justice had found such facts from competent testimony. The facts so found or confessed do not constitute the offense set out in the ordinance. The ordinance is directed at junkmen and others; that is, street chapmen or hawkers, and its essential feature is that the reprobated noise shall be "for the purpose of attracting public attention or for procuring business." If this is not so, the ordinance applies to sleigh bells, and to the gongs upon ambulances, fire and police patrols, automobiles, bicycles, or even to the signals given by surface railway cars. The case against the prosecutor is that made by the complaint, from which this essential feature of the ordinance is omitted, as well as any charge that he is a Junkman or other street dealer.

The conviction is set aside, with costs.

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