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

Decided: January 25, 1940.

N. J. GOOD HUMOR, INC., PROSECUTOR-APPELLANT,
v.
BOARD OF COMMISSIONERS OF THE BOROUGH OF BRADLEY BEACH ET AL., DEFENDANTS-RESPONDENTS



On appeal from a judgment of the Supreme Court, whose opinion is reported in 123 N.J.L. 21.

For the appellant, Kristeller & Zucker and Milton, McNulty & Augelli (John Milton, of counsel).

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

Heher

The opinion of the court was delivered by

HEHER, J. The fundamental question at issue is the validity of an ordinance adopted by the governing body of the Borough of Bradley Beach on June 18th, 1935, prohibiting hawking and peddling within the municipality.

The ordinance is entitled "An ordinance prohibiting hawking, peddling and vending and prohibiting the selling of goods, wares, and merchandise from house to house in the Borough of Bradley Beach, and providing a penalty for the violation thereof;" and it is thereby made unlawful "for any person, firm or corporation" (a) to "hawk, peddle or vend any goods, wares and merchandise" within the municipal boundaries, and (b) to "go from place to place or from house to house carrying for sale and exposing for sale, goods, wares, and merchandise which he, she, they or it carries either in a receptacle which he, she, they or it carries, or in any push cart, wagon, automobile, or any other vehicle whatsoever within" the municipality, saving and excepting "the sale of goods, wares, and merchandise by wholesalers to retailers for resale."

A municipal corporation is the creature of the legislature, and possesses only such rights and powers (a) as have been granted in express terms; (b) as arise by necessary or fair implication, or are incident to the powers expressly conferred, and (c) as are essential to the declared objects and purposes of the municipality -- not merely convenient, but indispensable. It has no inherent jurisdiction to make laws or adopt regulations of government; it is a government of enumerated powers, acting by a delegated authority. Any reasonable or fair doubt of the existence of the asserted power, or any ambiguity in the statute whence it springs, or those in pari materia, is to be resolved against the municipality, and the power is denied. Municipalities are to be confined within the

limits that a strict construction of the grants of powers will assign to them. And the granted powers must be exercised in a reasonable manner. Carron v. Martin, 26 N.J.L. 594; Public Service Electric, &c., Co. v. Camden, 118 Id. 245, 255; Dartmouth College v. Woodward, 4 Wheat. 518, 578; 4 L. Ed. 629; Cooley Const. Lim (8 th ed.) 391, 400.

In justification of this by-law, the municipality invokes section 40:48-2 of the Revised Statutes of 1937, investing it with authority to "make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law." It is noted that this provision has its origin in article XIV, section 2, of the Home Rule act of 1917 (Pamph. L., pp. 319, 357), in terms clothing the municipality with legislative power to be exerted "for the good government, order, protection of persons and property, and for the preservation of the public health, safety and prosperity of the municipality and its inhabitants * * *." And the insistence is that this prohibition of hawking, peddling and vending is within the police power thus conferred, as a measure furthering "the 'safety and prosperity of the municipality and its inhabitants' and their 'safety and welfare.'" We do not hold this view.

The primary subject of inquiry is whether the ordinance, on its face, constitutes a valid exercise of local legislative power. The ordinance itself does not reveal the particular power invoked, nor the reasons for its interposition. It is now defended on two general grounds, viz.: (1) The asserted right of a "residential community" to "peace and quiet;" and (2) the alleged interest of the community in the protection of the "business and profits" of local storekeepers against the competition thereby outlawed.

(1) It is contended that this somewhat drastic measure is essential to "the 'general welfare of the ...


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