For the prosecutor, Wolber, Gillhooley & Yauch.
For the respondent city of Long Branch, Jacob Steinbach, Jr.
Before Justices Parker, Lloyd and Heher.
The opinion of the court was delivered by
HEHER, J. This certiorari brings up the conviction of prosecutor on a complaint charging that on February 6th, 1932, in the city of Long Branch, he "did, by his servant or agent, operate a laundry delivery wagon without having previously obtained a mercantile license," in violation of the third section of an ordinance entitled "An ordinance governing, regulating and fixing fees of mercantile licenses in the city of Long Branch, New Jersey, and regulating business licensed," adopted January 11th, 1927.
Section 1 of the ordinance provides that it shall not be lawful, within the municipality, without a license for the purpose, "to engage in or carry on any business, trade or calling in using any wagon, vehicle, stand, store or other place, or sell or offer for sale any goods, wares or merchandise." Section 3 designates the "businesses, trades, or occupations required to be licensed," and prescribes the license fees. The business which respondent claims the prosecutor pursued, in violation of the terms of the ordinance, is specified in this section as "laundry delivery wagons (one horse or auto)".
The prosecutor conducts a general laundry business, with a plant in the city of Asbury Park. This plant serves the territory adjacent to that municipality, including the city of Long Branch. It is admitted that it is the prosecutor's practice to solicit the patronage of residents of the latter municipality, and that it furnishes to its patrons there a vehicular collection and delivery service. Respondent concedes that the power to license and regulate, sought to be exercised by the ordinance, is not inherent in municipal corporations, but it insists that it is conferred by article fifteen of the Home Rule act of 1917 (Pamph. L. 1917, p. 358) as amended by chapter 215 of the laws of 1929. Pamph. L. 1929, p. 406. This proposition is challenged by the prosecutor. He denies that the statute confers the asserted power to compel one "whose business is established elsewhere" to conform to the requirements of the ordinance.
The complaint is manifestly deficient. It charged merely that prosecutor operated a laundry delivery wagon without having previously obtained a mercantile license. The operation of a laundry delivery wagon upon the highways of a municipality, without more, would not constitute a violation of the ordinance, nor would the requirement of a license for that purpose be a valid exercise of power. The statute vests no such authority in the municipality. The ordinance requires the licensing of the designated businesses, trades or occupations conducted or pursued in the municipality,
and the complaint did not bring the prosecutor within its provisions, in that it contained no allegation that he, in the use of the delivery wagon in question, was conducting in the municipality any of the specified businesses without the prescribed license. But this point is not made, and inasmuch as the parties treated the complaint as sufficient below, and now seek a determination of the meritorious question, we shall proceed to examine it.
The substantial question raised is one of statutory construction. Respondent relies upon section 1 (d) of the act of 1929. It is argued that the use of the clause "and all other kinds of business conducted in such city other than those herein mentioned," evinces a legislative purpose to confer specific authority for the licensing and regulation of prosecutor's business; that this section contemplates the licensing of (a) the business itself, and (b) the place where ...