N. J. Good Humor, Inc. v. Bd. of Com'rs of Borough of Bradley Beach
| Decision Date | 22 June 1939 |
| Docket Number | No. 234.,234. |
| Citation | 123 N.J.L. 21,7 A.2d 824 |
| Parties | N. J. GOOD HUMOR, Inc. v. BOARD OF COM'RS OF BOROUGH OF BRADLEY BEACH et al. |
| Court | New Jersey Supreme Court |
Certiorari by N. J. Good Humor, Incorporated, prosecutor, against the Board of Commissioners of the Borough of Bradley Beach, Recorder's Court of Bradley Beach, County of Monmouth, and Walter Fox, Recorder of Bradley Beach, New Jersey, to review a conviction of the prosecutor by the Recorder of the Borough of Bradley Beach for a violation of a municipal ordinance prohibiting peddling.
Conviction affirmed.
Argued May term, 1939, before BROGAN, C. J., and DONGES and PORTER, JJ.
Kristeller & Zucker, of Newark (Lionel P. Kristeller, of Newark, of counsel), for prosecutor.
Joseph R. Megill, of Asbury Park (Ward Kremer, of Asbury Park, of counsel), for respondents.
The writ of certiorari brings before us for review the conviction of the prosecutor, N. J. Good Humor, Inc., by the recorder of the Borough of Bradley Beach for a violation of a municipal ordinance prohibiting peddling.
The facts are not in dispute. The prosecutor is engaged in selling ice cream and confections. Its method of doing business is to sell wares from automobiles throughout the state. It furnishes the vehicles to its salesmen under certain conditions as to furnishing oil and gasoline for their operation and pays the salesmen for their services certain commissions based upon the sales made.
One William E. Knoblock was so employed by prosecutor and on August 18, 1938, and on other occasions, made sales from the automobile within the municipality in question. The prosecutor was charged with violating the ordinance and the facts not being challenged by it the recorder found it guilty and imposed a fine of fifty dollars. The recorder found that the prosecutor was engaged in peddling its wares from its automobile by its agent Knoblock.
With that conclusion we are in accord. Its method of selling from its automobiles is peddling within the well-known and generally accepted meaning of that term, and as denounced by the ordinance.
The pertinent question presented is whether or not the ordinance is valid and enforceable.
The argument of the prosecutor is that it is not enforceable for the reasons that it is unreasonable, arbitrary, capricious and discriminatory, and further, that it violates its constitutional rights by the denial of equal protection of the law. The ordinance makes it unlawful for any person, firm or corporation to hawk, peddle or vend any goods, wares or merchandise within the municipality, or to carry the same from place to place, or house to house, or to expose them for sale in a push cart, wagon, automobile or otherwise. The respondents contend that its authority to enact the ordinance was delegated to it by the legislature in the so-called Home Rule act, R.S. 40:48-2, N.J.S.A. 40:48-2.
The language of that provision is very comprehensive and it seems to us clear that it was the legislative intent to vest such power in the municipalities, as was done in the instant case, as a proper exercise of the police power. This section reads as follows: "Any municipality may 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."
We conclude that the ordinance is not arbitrary nor discriminatory because it applies to everyone who seeks to sell his goods in the manner indicated. Is it unreasonable, arbitrary or capricious? To answer that question consideration must be given to the local conditions and requirements. It must be assumed that the municipality acted in good faith and with discretion. Silvester v. Princeton, 104 N.J.L. 18, 139 A. 517. What would be reasonable in one place might not be in...
To continue reading
Request your trial
-
City of Hillsboro v. Purcell
... ... [306 Or. 548] Todd A. Bradley, Portland, argued the cause and filed the ... brief on behalf of ACLU Foundation of Oregon, Inc ... Dave Frohnmayer, Atty. Gen., ... 768, 291 N.W. 664 (1940); N.J. Good Humor, Inc., v. Bradley Beach, 123 N.J.L. 21, 7 ... ...
-
N. J. Good Humor, Inc. v. Bd. of Com'rs of Borough of Bradley Beach
...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 Reversed and remanded. Kristeller & Zucker, of Newark, and Milton, McNulty & Au......
-
City Affairs Committed Of Jersey City v. Bd. Of Comm'rs Of Jersey City
...the necessary statutory authority. When the Good Humor case, supra, was before the Supreme Court, it was argued, and there held (123 N.J.L. 21, 7 A.2d 824), that the general language of that section gave authority to the Borough of Bradley Beach to prohibit the vending of any goods from a v......
-
Higgins v. Krogman
...with a municipal ordinance, the latter must cease to be effective.’ The ordinance was again considered in N. J. Good Humor, Inc., v. Bradley Beach, 123 N.J.L. 21, 7 A.2d 824, reversed in 124 N.J.L. 162, 11 A.2d 113. In this latter case the direct question here posed was not raised. The defe......