N. J. Good Humor, Inc. v. Bd. of Com'rs of Borough of Bradley Beach

• Decision Date: 25 January 1940
• Docket Number: No. 28.,28.
• Citation: 124 N.J.L. 162,11 A.2d 113
• Parties: N. J. GOOD HUMOR, Inc. v. BOARD of COM'RS OF BOROUGH OF BRADLEY BEACH et al.
• Court: New Jersey Supreme Court

11 A.2d 113

124 N.J.L. 162

N. J. GOOD HUMOR, Inc.

v. BOARD of COM'RS OF BOROUGH OF BRADLEY BEACH et al.

No. 28.

Court of Errors and Appeals of New Jersey.

Jan. 25, 1940.

[Copyrighted material omitted.]

Appeal from Supreme Court.

Certiorari proceeding by N. J. Good Humor, Inc., against the Board of Commissioners of the Borough of Bradley Beach and others to review a conviction of the prosecutor for violation of a municipal ordinance prohibiting peddling. From a judgment of the Supreme Court, 123 N.J.L. 21, 7 A.2d 824, affirming the conviction of the prosecutor, prosecutor appeals.

Reversed and remanded.

Kristeller & Zucker, of Newark, and Milton, McNulty & Augelli, of Jersey City, (John Milton, of Jersey City, of counsel), for appellant.

Joseph R. Megill, of Asbury Park (Ward Kremer, of Asbury Park, of counsel), for respondents.

HEHER, Justice.

The fundamental question at issue is the validity of an ordinance adopted by the governing body of the Borough of Bradley Beach on June 18, 1935, prohibiting hawking and peddling within the municipality.

The ordinance is entitled "An ordinance prohibiting hawking, peddling and vending and prohibiting the selling of goods, wares, and merchandise from house to house in the Borough of Bradley Beach, and providing a penalty for the violation thereof"; and it is thereby made unlawful "for any person, firm or corporation" (a) to "hawk, peddle or vend any goods, wares and merchandise" within the municipal boundaries, and (b) to "go from place to place or from house to house carrying for sale and exposing for sale, goods, wares, and merchandise which he, she, they or it carries either in a receptacle which he, she, they or it carries, or in any push cart, wagon, automobile, or any other vehicle whatsoever within" the municipality, saving and excepting "the sale of goods, wares, and merchandise by wholesalers to retailers for resale."

A municipal corporation is the creature of the legislature, and possesses only such rights and powers (a) as have been granted in express terms; (b) as arise by necessary or fair implication, or are incident to the powers expressly conferred; and (c) as are essential to the declared objects and purposes of the municipality—not merely convenient, but indispensable. It has no inherent jurisdiction to make laws or adopt regulations of government; it is a government of enumerated powers, acting by a delegated authority. Any reasonable or fair doubt of the existence of the asserted power, or any ambiguity in the statute whence it springs, or those in parimateria, is to be resolved against the municipality, and the power is denied. Municipalities are to be confined within the limits that a strict construction of the grants of powers will assign to them. And the granted powers must be exercised in a reasonable manner. Carron v. Martin, 26 N.J.L. 594, 69 Am.Dec. 584; Public Service Electric & Gas Co. v. Camden, 118 N.J.L. 245, 255, 192 A. 222; Dartmouth College v. Woodward, 4 Wheat. 518, 578, 4 L.Ed. 629; Cooley's Constitutional Limitations (8th Ed.) 391, 400.

In justification of this by-law, the municipality invokes section 40:48-2 of the Revised Statutes of 1937, N.J.S.A. 40:48-2, investing it with authority to "make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law." It is noted that this provision has its origin in Chapter 152, Article XIV, section 2, of the Home Rule Act of 1917, Pamph.L., pp. 319, 357 in terms clothing the municipality with legislative power to be exerted "for the good government, order, protection of persons and property, and for the preservation of the public health, safety and prosperity of the municipality and its inhabitants * * *." And the insistence is that this prohibition of hawking, peddling and vending is within the police power thus conferred, as a measure furthering "the 'safety and prosperity of the municipality and its inhabitants' and their safety and welfare.'" We do not hold this view.

The primary subject of inquiry is whether the ordinance, on its face, constitutes a valid exercise of local legislative power. The ordinance itself does not reveal the particular power invoked, nor the reasons for its interposition. It is now defended on two general grounds, viz.: (1) The asserted right of a "residential community" to "peace and quiet"; and (2) the alleged interest of the community in the protection of the "business and profits" of local storekeepers against the competition thereby outlawed.

(1) It is contended that this somewhat drastic measure is essential to "the 'general welfare of the municipality and its inhabitants' or the 'prosperity of the municipality and its inhabitants.'" The argument runs thus: There are problems peculiar to seashore municipalities. In particular, it is the aim of the defendant municipality to "attract summer visitors who rent cottages or own them. The value of these properties and the rent they command is affected obviously by the character of the community and the manner in which it is maintained and governed. The prosperity of the owners of the property is most materially affected by the value of the properties they own and the rents they can secure from summer tenants. In all summer resort communities thousands of home owners occupy their houses during the eight or nine months of the so-called 'off season' and they rent them for the short summer season in the hope of securing sufficient revenues to pay the mortgage interest and taxes on the properties. The welfare of all these people is affected by the desirability of their properties for summer rental purposes. * * * The result" of a lack of power "to prohibit peddling" would be "that innumerable peddlers could ride the streets at all hours of the day crying their wares and merchandise to attract customers", and "there would be no check upon the number or character of the conveyances which might engage in these businesses", all to the detriment of "the peace and quiet of a residential community", with a consequent reduction of the rental and market values of dwellings within the municipality.

(2) It is also sustained as a measure necessary to protect the "business" and "profits" of the local "small merchants" who "own or rent properties", and "bear all the burdens of business for twelve months in the year", sometimes "doing business at a loss for eight or nine months", from "an invasion of the community during the short summer season by street peddlers", who "pay no rent, own no property and contribute nothing to the 'welfare of the municipality and its inhabitants'". The destruction of such competition is deemed to be in "the interests of the municipality and its taxpayers and its inhabitants generally", since the economic losses of the resident merchants are reflected, so it is said, in vacant properties during the winter months, in the "lack of all year round shopping facilities", and in "a decrease in real estate values, a diminution of incomes from real estate, and a * * * shrinkage in values and tax returns to the municipality." In this regard, defendants distinguish between "prohibition of peddling and prohibition of business." It is maintained that "the municipality, by prohibiting peddling, is not prohibiting business. It is merely regulating it."

The statute delegates a portion of sovereign power to such municipal subdivisions; and the dispositive question is whether the ordinance transcends the granted authority. We find that it does.

The enactment is not defensible as a measure to insure "the peace and quiet of a residential community." It is patently not a reasonable exercise of the police power to effect that objective. There is no substantial relation between the means employed and the end so avowed. It utterly prohibits the "hawking, peddling and vending" and the "carrying for sale and exposing for sale" of goods, wares and merchandise "from house to house" and "from place to place" within the municipal confines. Plainly, prohibition, as distinguished from regulation, is not essential to the consummation of the purported object. Moreover, the ban extends to commerce of the particular classes without regard to whether it is in fact, under the circumstances, violative of community "peace and quiet". Compare People v. Kuc, 272 N.Y. 72, 4 N.E.2d 939, 107 A.L. R. 1272. The sweeping rule of the ordinance is manifestly not sustainable as including only a reasonable margin to insure effective...