For the prosecutor, Nicholas S. Schloeder.
For the respondent, Calvin S. Koch.
Before Justices Bodine, Perskie and Porter.
The opinion of the court was delivered by
PERSKIE, J. The primary question requiring decision is whether section 6A-10 of respondent's ordinance imposing a license fee of $300 for each vehicle used in connection with the peddling of ice cream and ice cream combinations is valid. The secondary question is whether prosecutor's attack is premature.
On September 11th, 1940, respondent, Town of Kearny, passed an ordinance for revenue purposes effective June 1st, 1941, regulating and licensing the business of "peddling" goods, wares and merchandise in its town, fixing the "license fees" therefor, and providing penalties for the violation thereof. N.J.S.A. 40:52-1, et seq.
Although prosecutor's attack is solely confined to section 6A-10 of this ordinance, reference to other provisions of this section and to other sections of the ordinance (all of which is before us) is advisable.
By section 6A it is provided, inter alia, that "each wagon, push cart, bicycle, tricycle, automobile, or other vehicles whether motor driven or not, used in connection with peddling shall be subject to a license fee * * * in accordance with the following schedule:
(1) Peddlers of ice and/or coal $10.00
(2) Peddlers of shrubbery, plants, bulbs, and products of the nursery $25.00
(3) Peddlers of fruits and vegetables ...