For the prosecutor, Peter Cohn.
For the respondent, Charles F. Lynch.
Before Justices Parker, Case and Bodine.
The opinion of the court was delivered by
PARKER, J. Prosecutor was convicted before the Recorder's Court of Paterson, of violating a city ordinance providing for licensing as auctioneer on application, any person who has been a resident of the city for not less than one year; and that no person shall act as auctioneer without license, under a penalty of $50. Other features of the ordinance are not material here. Prosecutor had no Paterson license, and under the terms of the ordinance was not eligible for one, being a resident of Newark. He claims that his application for license was refused. The testimony in the Recorder's Court, however, is not before us, and the depositions are unavailable. South Brunswick v. Cranbury, 52 N.J.L. 298. Prosecutor was fined $50 as provided in the ordinance.
We think the restriction of a license to residents was unreasonable and illegal. A number of cases on this point are collected in Westfield v. Stein, 113 N.J.L. 1 (at p. 3). But the point is not strictly before us. Prosecutor admittedly had no license. He asserts now that he applied for one and was refused on the ground of non-residence, and, as already noted, made that defense in the Recorder's Court. But if so made, it was not a defense there, for if the refusal was unwarranted, his remedy was by mandamus and not by doing business unlicensed. He could claim no higher privilege than a resident, i.e., to a status for licensing purposes.
However, the conviction must be set aside because of the illegal penalty, fixed at $50, no more, no less. This is in violation of section 7 of article 10 of the Home Rule act (Pamph. L. 1917 (at p. 347); Cum. Supp. Comp. Stat. 1911-1924, p. 2105, § *136-1007), authorizing imprisonment not exceeding ninety days, or fine not exceeding $200, or both, with power to the magistrate to impose punishment within those limits. The ordinance antedates the statute, but that does not help the matter. La Forgia v. Hoboken, 10 N.J. Mis. R. 657. The recorder made a decision in writing citing this case, but disregarded it.
The conviction is set aside, ...