England v. Twp. Comm. of Millburn

• Decision Date: 21 April 1939
• Docket Number: No. 42.,42.
• Citation: 122 N.J.L. 462,5 A.2d 782
• Parties: ENGLAND v. TOWNSHIP COMMITTEE OF MILLBURN et al.
• Court: New Jersey Supreme Court

5 A.2d 782

122 N.J.L. 462

ENGLAND

v. TOWNSHIP COMMITTEE OF MILLBURN et al.

No. 42.

Court of Errors and Appeals of New Jersey.

April 21, 1939.

Appeal from Supreme Court.

Warren England was convicted of violation of an ordinance regulating vehicular traffic in the township of Millburn and from a judgment of the Supreme Court dismissing a writ of certiorari against the Township Committee of Millburn and G. Noyes Slayton, recorder, to review the conviction, he appeals.

Judgment of Supreme Court affirmed.

On appeal from the Supreme Court in which Mr. Justice Parker filed the following opinion:

"The prosecutor was convicted in the Recorder's Court of Millburn of violating the fifth section of 'An Ordinance to Regulate Vehicular Traffic in the Township of Millburn * * * and providing Penalties for the Violation thereof.' The fifth section, so far as applicable, reads as follows: 'the parking of any vehicle within the lines of any street * * * in said township for the purpose and during the process of selling and delivering thereat and therefrom, to a consumer, goods, wares and merchandise, being hereby expressly prohibited.'

"The ordinance defines 'parking' (section lb) as 'the standing or waiting on any street * * * of any vehicle not actually engaged in receiving or discharging passengers or merchandise, unless in obedience to traffic regulations or traffic signs or signals.' This language is substantially identical with that of the Traffic Act, R.S. 39:1-1.

"The conceded facts are that prosecutor was operating a truck from which he sold 'Good Humors', an ice cream specialty, to any who wished to buy; that on the particular occasion charged in the complaint, he stopped the truck in a Millburn street, presumably on the signal of a customer, took out a Good Humor and sold it to the customer. (The 'Good Humor' trucks and drivers are a familiar sight to motorists driving during the warm weather.) The complaint charged that 'The said Warren England did sell Good Humor Ice Cream from a motor vehicle on Wellington Avenue.' It does not charge that he 'parked' his car to do it, but no point is made of this omission, so I consider the case as developed by the uncontradicted evidence.

"Essentially, what the prosecutor did was to peddle Good Humors, but we are not here concerned with the law on peddling. Did he 'park' his car when he stopped and made the sale? I think that clearly he did, within the intendment and language of the Traffic Act and of the ordinance. It is urged that he was 'actually engaged in * * * discharging * * * merchandise' and hence not within the definition. But I think 'discharging merchandise' is a very different matter from peddling and that the part of Section 5 above quoted fairly indicates the distinction, viz.: 'the process of selling and delivering thereat and therefrom, to a consumer.' If a grocery wagon stops in front of the house of a customer to deliver food in response to an order, that is one thing; if a wagon or automobile traverses the streets to sell its contents to any and all comers, that is quite another.

"The other point made for prosecutor is that the ordinance was ineffective because of non-compliance with Section 39: 4-198 of the Traffic Act, which reads as follows:

"'No special ordinance passed under any power given by this chapter shall be effective unless due notice thereof is given to the public by placing a sign at the places where the ordinance is effective, and by briefing its provisions on signs according to specifications contained in this chapter. These signs shall be so placed as to be easily read by pedestrians or operators of vehicles.' (R.S. 39:4-198.)

"I think the answer to this is that the ordinance is not a 'special ordinance' in the sense...