Smith v. City Of Asbury Park

• Decision Date: 27 April 1949
• Docket Number: No. A-67.,A-67.
• Citation: 65 A.2d 755
• Parties: SMITH et al. v. CITY OF ASBURY PARK et al.
• Court: New Jersey Superior Court

65 A.2d 755

SMITH et al.

v.CITY OF ASBURY PARK et al.

No. A-67.

Superior Court of New JerseyAppellate Division, Part A.

April 27, 1949.

Appeal from Police Court of City of Asbury Park.

Edward Ray Smith, Eugene Cook, Joseph Bizzaro, Alfredo Monteparo and Edward Bodeep were convicted by the Honorable Thomas Shebell, Police Justice of the City of Asbury Park, of parking their taxicabs and soliciting business in a place not designated or permitted by ordinance of the City of Asbury Park, a municipal corporation, and they appeal.

Judgments of conviction reversed.

Before EASTWOOD, BIGELOW and FREUND, JJ.

Ward Kremer, of Asbury Park, for plaintiffs-appellants.

E. Alexander Edelstein, of Asbury Park, for defendants-respondents.

EASTWOOD, Judge.

Appellants seek a reversal of their conviction for alleged violation of Section 13 of an Ordinance of the City of Asbury Park entitled ‘An Ordinance Relating to Traffic and Regulating the Use of Public Streets and Highways in the City of Asbury Park, Prescribing Regulations Relative to the Parking of Vehicles upon Such Public Streets and Highways'.

Respondents did not file an answering brief with this court, nor did its counsel appear at the argument.

Appellants are taxi drivers licensed by and authorized to do business in the City of Asbury Park. They were respectively charged with violating Section 13 of the aforementioned ordinance, in that they parked their taxicabs and solicited business on the public road or driveway leading from Bangs Avenue or Cookman Avenue to Railroad Square, a place not designated or permitted by said ordinance.

Several grounds are advanced for reversal of appellants' conviction. For the purposes of our determination, it is essential to consider only two, viz.: that (1) the evidence at their trial did not establish that ‘Railroad Square’, where appellants were alleged to have committed the violations of the ordinance, was a public street or highway; and (2) that the ordinance did not prohibit soliciting business by appellants and the convictions, therefore, were invalid.

Discussing ground (1) for reversal, to support the conviction it was essential that the charge be strictly proved. There was no testimony offered at the trial to prove that ‘Railroad Square’ is a public street or highway. The Police Court, in its written opinion convicting appellants, stated: ‘Although the property is privately owned by the New York and Long Branch Railroad, it is subject to the easement of the general public to travel over Railroad Square by vehicle and by foot, and therefore, the City of Asbury Park has the right to control any traffic or the solicitation of taxi business, which may occur on either the north circle or the south circle of Railroad Square’. There was no evidence to support such a finding. In the case of Atlantic City v. Turner, Sup.Ct.1902, 67 N.J.L. 520, 51 A. 691, 692, wherein defendant was convicted of violation of local ordinance regulating business of driving omnibusses, etc., defendant's conviction was reversed on the ground that the evidence failed to conform with the terms of the ordinance and the court said: ‘The offense is a penal one and must...