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N.J. Good Humor Inc. v. Board of Commissioners

Decided: July 22, 1939.

N.J. GOOD HUMOR, INC., PROSECUTOR,
v.
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, RESPONDENTS



On writ of certiorari.

For the prosecutor, Kristeller & Zucker (Lionel P. Kristeller, of counsel).

For the respondents, Joseph R. Megill (Ward Kremer, of counsel).

Before Brogan, Chief Justice, and Justices Donges and Porter.

Porter

The opinion of the court was delivered by

PORTER, J. 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 18th, 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 ...


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