On certiorari and on alternative writ of mandamus.
For the prosecutor-relator, Aaron Heller.
For the respondent, Lawrence E. Keenan.
Before Brogan, Chief Justice, and Justices Case and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The subject-matter of this appeal concerns the right of the prosecutor to a permit to operate a junk shop in the town of Belleville. The writ of certiorari brings up for review the action of the board of commissioners of the
town in denying prosecutor's application for such a license; and by the alternative writ of mandamus prosecutor seeks to compel respondent to grant him the license. By concession of counsel for the respective parties, both matters are argued together.
The factual situation is substantially as follows: Prosecutor is now, and has been for the past twenty-one years, a resident of the town of Belleville. On July 8th, 1924, he was licensed as a junkman. This license was renewed in 1925 and on October 21st of that year he was licensed to and did erect a junk shop upon the premises at No. 42-44 Clinton street. There was a renewal of this license in 1926. In December, 1927, the town passed an ordinance that an applicant for a junkman permit shall be a citizen of the United States. Under this ordinance prosecutor was denied a permit as he was not then a citizen of the United States. Relator became a naturalized citizen on December 11th, 1931. In January, 1935, he applied for a license and it was refused. To review that refusal and compel the issuance of the license prosecutor then, as now, prosecuted a writ of certiorari and an alternative writ of mandamus. We are told that on the opening of the argument on these writs at the May term, 1935, of this court, counsel for respondent conceded that the ordinance of 1927 was not properly signed and, therefore, invalid. Thereafter on June 11th, 1935, respondent adopted a new ordinance regulating the junk business. Relator again applied for a license and again he was refused. It is the propriety of that refusal that is here challenged by these writs.
Respondent seeks to justify its refusal on the ground that prosecutor has failed to comply with section 4 of the last stated ordinance which provides:
"Junk Shop and Junk Dealer licenses shall be issued by the Board of Commissioners, which licenses shall be issued in the case of junk shops by the Board of Commissioners, when in their discretion the applicant shall satisfactorily show that the location of such junk shop is situated so that the public health will not be affected by the storage of junk on the premises to be used as a junk shop to the satisfaction of
a majority of the Board of Commissioners of the Town of Belleville. No licenses shall be issued for junk shops in localities which are residential or semi-residential in character. Such licenses shall be issued for junk dealers who do not maintain junk shops in the Town of Belleville by the Board of Commissioners when in their discretion they deem the ...