Dziatkiewicz v. Twp. of Maple-Wood

• Decision Date: 15 April 1935
• Docket Number: Nos. 209-212.,s. 209-212.
• Citation: 178 A. 205
• Parties: DZIATKIEWICZ v. TOWNSHIP OF MAPLE-WOOD and three other cases.
• Court: New Jersey Supreme Court

178 A. 205

DZIATKIEWICZ

v. TOWNSHIP OF MAPLE-WOOD and three other cases.

Nos. 209-212.

Supreme Court of New Jersey.

April 15, 1935.

Anna Dziatkiewicz, Anna Rettenmaier, and Wallace A. Vick were convicted before Richard H. Thiele, Recorder of the Township of Maplewood, of violation of an ordinance of said township regulating canvassing, and they bring certiorari.

Writs dismissed.

Argued January term, 1935, before HEHER and PERSKIE, JJ.

Jacob S. Karkus, of Perth Amboy, for prosecutors.

Abram H. Cornish, of Newark (Ervin S. Fulop, of Newark, of counsel), for respondents.

PERSKIE, Justice.

The prosecutor in each of the aforesaid cases was convicted of having violated section 1 of an ordinance of the township of Maplewood, regulating canvassing. Each conviction was reviewed and affirmed by Mr. Justice Parker. Chapter 228, P. L. 1908, p. 442 (2 Comp. St. 1910, p. 1868, § 145b).

The writ of certiorari in each case seeks to review the aforesaid conviction and affirmance. The cases, being practically identical, on the argument were consolidated and treated as if they were here as one case; we shall therefore dispose of them accordingly. Mayor, etc., of Bergenfield v. Peterson, 147 A. 774, 7 N. J. Misc. 1019, 1020.

The pertinent provisions of the ordinance in question are substantially as follows (section 1): "No person, except as in this ordinance provided, shall canvass, solicit, distribute circulars or other matter, nor call from house to house in the Township of Maplewood without first having reported to and received a written permit from the Chief of Police or the officer in charge at Police Headquarters."

Section 2 gives power to the granting officer to issue the permit; and provides that the permit shall specify the effective hours and days of said permit; gives the granting officer discretion to refuse a permit if upon investigation it is disclosed that the canvasser is not of good moral character or that he is canvassing for a project not free from fraud; it also permits the revocation of a permit for the failure or refusal of the permittee to observe the rules and regulations set out in the ordinance. Section 3 provides that before the permit is issued the canvasser "shall make an application to canvass, giving his or her full name and address, age, height, weight, place of birth, whether married or single, length and place of residence, whether or not previously arrested or convicted of crime, by whom employed, address of employer, clothing worn and a description of the project for which he or she is canvassing. Each applicant shall be finger printed and photographed before a permit shall issue." Section 4 sets out the rules and regulations. Section 5 provides that it shall not affect "any person engaged in the delivery of goods, wares or merchandise, or other article or thing in the regular course of business to the premises of persons ordering or entitled to receive same." Section 6 provides for the penalty.

The charge in each case was that on the day and place within the township, as alleged in the complaint, prosecutor did canvass, distribute circulars, or other matter by calling from door to door without having first received a written permit from the chief of police for so doing.

It is not the function of the court, in cases of this type, to weigh the evidence. Vandegrift v. Meihle, 66 N. J. Law, 92, 49 A. 16; Levine v. State, 110 N. J. Law, 467, 166 A. 300. We have however examined the proofs, including a copy of the circular or literature marked Exhibits p-1 and p-2, and appearing only in the state of case (R) of Township of Maplewood v. Anna Dziatkiewicz, and are clearly, of the opinion that they fully support each conviction; we so hold. Allen v. McGovern, 169 A. 345, 12 N. J. Misc. 12. Although the ordinance in the last-cited case was, if anything, more stringent than the ordinance in the instant case, nevertheless it was sustained as a valid exercise of the police power by the governing body. And the court said: "* * * The fact that the prosecutor first rang the door bell and then handed in the unsolicited advertising matter does not alter the situation, since the city must regulate the use of its streets for the good of the greatest number. There are restraints upon every one for the common good. The city commissioners, being familiar with the local conditions are primarily the judges of the necessity. Jacobson v. Massachusetts, 197 U. S. 11, 25 S. Ct 358, 49 L. Ed. 643, 3 Ann. Cas. 765."

Seven reasons are assigned by the prosecutors in support of their respective contentions. The first two are that: (1) "The complaint is insufficient in that it fails to charge an offense"; and (2) "Because the recorder had no jurisdiction in that a valid complaint was not made or filed." Like objection was made before the recorder in the Rettenmaier case and the same objection was stipulated as having been made in each of the other cases. Under these objections it is here argued that prosecutors were not canvassing and that the complaint in each case was defective, in that it charged the commission of an offense in the alternative. This is based on the fact that the complaint charged the prosecutors in each case with canvassing, distributing circulars, "or other matter." Myslewitz v. Sullivan, 102 N. J. Law, 61, 131 A. 57. A reading of the last-cited case clearly discloses that, by reason of the particular facts and issues therein involved, it is without application to the facts and issues involved in the case at bar.

It is well settled that, where the words of the statute are descriptive of the offense, it is ordinarily sufficient to...