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Germano v. Keenan

Decided: March 3, 1953.

HARRY GERMANO AND NICHOLAS LASSANDRO, PLAINTIFFS,
v.
JOHN B. KEENAN, DIRECTOR OF PUBLIC SAFETY OF THE CITY OF NEWARK, AND CITY OF NEWARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS



Stein, J.s.c.

Stein

Plaintiffs are war veterans. The defendant John B. Keenan is the Director of Public Safety of the City of Newark. Plaintiffs are the holders of a license pursuant to R.S. 45:24-9 to hawk, peddle and vend goods, wares and merchandise or solicit trade within this State. Heretofore defendant John B. Keenan, through the police, prevented these plaintiffs from peddling in downtown Newark up to March 16, 1951. On that date, in a prior proceeding between the plaintiffs and the defendants, this court enjoined the defendant Keenan from interfering with plaintiffs while hawking, peddling or vending on the streets and sidewalks of the City of Newark. The judgment was based on the statute at that time which granted war veterans the right to obtain a license to peddle and held that the plaintiffs being licensed veterans the defendant Keenan's action interfered with their right to peddle and violated the statute.

The act, R.S. 45:24-9, was on June 18, 1952 amended, and as amended now provides that: "Hawking, peddling and vending hereafter may be regulated by municipal ordinance on public boardwalks, public beaches, streets and highways." The words "streets and highways" were added by the amendment.

Thereafter the City of Newark adopted an ordinance which prohibits all peddling on certain streets named therein which streets encompass the entire downtown and main business area of Newark.

Plaintiffs in their complaint filed in this suit charge that they have been threatened by the police of the City of Newark, acting under orders of the defendant John B. Keenan, that if they engage in the business of hawking, peddling and vending upon any of the streets enumerated in the ordinance in which hawking, peddling and vending is prohibited, they would be arrested and prosecuted.

The matter is now before me on the return of an order to show cause why the defendant Keenan should not be enjoined

from interfering with the plaintiffs in hawking and peddling their merchandise in accordance with their license.

Plaintiffs contend that the ordinance is invalid and illegal for the following reasons: (a) The ordinance is not regulatory but prohibitory and beyond the power of the municipality under the statute; (b) it is an unreasonable exercise of any power granted to the municipality by the Legislature; (c) under a proper construction of R.S. 45:24-9, the plaintiffs are exempt from regulation by municipal ordinance in the operation of their business; (d) if the ordinance is construed to apply to plaintiffs holding licenses under R.S. 45:24-9, that then the ordinance violates the due process clause of the Constitution of the State and the United States in that the ordinance results in arbitrary unreasonable and discriminatory deprivation of the property of the plaintiffs in violation of the due process and equal protection clause of the Constitution of the State and the United States.

In N.J. Good Humor, Inc., v. Bradley Beach , 124 N.J.L. 162 (E. & A. 1940), a similar ordinance prohibiting peddling was under consideration by the Court of Errors and Appeals. In that case the Borough of Bradley Beach adopted an ordinance prohibiting hawking, peddling or vending. The court there dealt with a broader question than is involved in the instant case, the constitutionality of an ordinance prohibiting peddling where there was no statute vesting the plaintiff with a preferred status. Here, the plaintiffs come before the court fortified with a statute in existence since 1904 wherein is established the policy of this State granting to all war veterans the right to peddle; thus the plaintiffs enjoy a greater standing than did the N.J. Good Humor, Inc. to attack the constitutionality of the ordinance prohibiting peddling.

In the N.J. Good Humor, Inc. case, supra , the court in holding the ordinance to be unconstitutional said:

"Evidently, the motive for this municipal action was the overthrow of competition for the benefit of local merchants and storekeepers; and this, too, constitutes ...


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