Higgins v. Krogman

• Decision Date: 03 September 1948
• Docket Number: No. 230.,230.
• Citation: 61 A.2d 444
• Parties: HIGGINS et al. v. KROGMAN, Mayor, et al.
• Court: New Jersey Supreme Court

61 A.2d 444

HIGGINS et al.

v.KROGMAN, Mayor, et al.

No. 230.

Court of Errors and Appeals of New Jersey.

Sept. 3, 1948.

Appeal from Court of Chancery.

Suit by John L. Higgins and others against George W. Krogman, Mayor of the City of Wildwood, and another, to enjoin the defendants from interfering with or molesting the complainants in the hawking and peddling of merchandise in the city of Wildwood. From an interlocutory order, 140 N.J.Eq. 518, 55 A.2d 175, and a final decree granting injunctive relief, defendants appeal.

Isaac C. Ginsburg, of Atlantic City, for complainants-respondents.

Irving Shenberg, of Wildwood, and Carl Kisselman, of Camden, for defendants-appellants.

JACOBS, Justice.

This is an appeal from an interlocutory order and a final decree granting injunctive relief to complainants-respondents.

Complainants are all veterans holding peddlers licenses issued by the Clerk of Atlantic County pursuant to the provisions of R.S. 45:24-9 et seq., N.J.S.A. They sought to engage in their business of peddling ice cream on the beach at Wildwood but the police authorities, acting under a municipal ordinance which prohibited all peddling on the beach, prevented them from doing so by physical interference, confiscation of their property, and threatened arrests. On one occasion arrests were made but no action was taken in furtherance thereof.

In due course, the complainants filed a verified bill of complaint in the Court of Chancery praying that the defendants, Mayor and Chief of Police of Wildwood, be restrained from interfering with or molesting them in their peddling of merchandise in Wildwood. In their answering affidavits the defendants did not deny interference with complainants' peddling but justified their action under Wildwood's ordinance No. 422 adopted on April 29, 1941, which provides for the issuance of licenses, including peddling licenses, and sets forth in Section 6:

‘That licenses issued to peddle goods, wares, merchandise or any articles shall not authorize or permit such peddling on the boardwalk, the approaches thereto or upon any platform or building adjacent to said boardwalk, nor on the beach. All peddling upon same is hereby expressly prohibited.’

On the bill and answering affidavits the Vice Chancellor, under date of December 16, 1947, entered an order enjoining the defendants from molesting the complainants in their peddling of merchandise but expressly providing that:

‘This injunction shall not be construed to restrain or interfere with the right of defendants to proceed with the trial of complainants or any future proceedings under due process of law in accordance with the terms of Ordinance No. 422 of the City of Wildwood and the laws of this State.’

The defendants appealed from this order on the sole ground that it is erroneous in that peddling on the beach front is prohibited by the terms of the ordinance. This ground of appeal misconceives the nature of the Vice Chancellor's order which did not adjudicate the validity or invalidity of the ordinance but, on the contrary, left unimpaired the right of defendants to prosecute alleged violators in regular course. Indeed, the Vice Chancellor's opinion expressly points out that the complainants' bill was not to restrain warrants, arrests, or other lawful proceedings under the ordinance, but applied only ‘to the extra-legal or illegal activities of the law-enforcing officers in forcing the complainants off of the beach front park and thus interfering with their business.’ See Higgins v. Krogman, Ch. 1947, 140 N.J.Eq. 518, 520, 55 A.2d 175, 177. Insofar as his restraining order was confined to a restraint of the described extra-legal activities, it was clearly, under the undisputed facts and circumstances, a proper exercise of the Court of Chancery's jurisdiction to protect complainants' property from irreparable injury threatened by ‘arbitrary acts of officials acting without due process of law.’ See S. & R. Amusement Corp. v. Quinn, Ch. 1944, 136 N.J.Eq. 420, 424, 38 A.2d 571, 573; Ruty v. Huelsenbeck, Ch. 1931, 109 N.J.Eq. 273, 276, 156 A. 922. Cf. Iannella v. Piscataway Township, Ch. 1946, 138 N.J.Eq. 598, 601, 49 A.2d 491. And insofar as the issue of the validity of the ordinance was concerned his order in no wise interfered with its proper determination, on certiorari, either prior to prosecution (Gurland v. Kearny, Sup.194...