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Tagmire v. City of Atlantic City

Decided: March 23, 1955.

FRANK J. TAGMIRE AND NATHAN WOLFSON, PLAINTIFFS-CROSS-APPELLANTS,
v.
THE CITY OF ATLANTIC CITY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; MEREDITH B. KERSTETTER, ASSISTANT DIRECTOR OF PUBLIC SAFETY OF THE CITY OF ATLANTIC CITY, AND DR. SAMUEL L. SALASIN, HEALTH OFFICER OF THE CITY OF ATLANTIC CITY, DEFENDANTS-CROSS-RESPONDENTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

[35 NJSuper Page 12] Involved in this appeal is the right of honorably discharged veterans to hawk, peddle or vend on the public beaches of Atlantic City. Defendants appeal from that part of the order of the Chancery Division entered in favor of plaintiffs declaring invalid section 16 of Atlantic City Ordinance No. 19 regulating hawkers, peddlers and vendors; and ordering the issuance of a hawker's, peddler's

and vendor's license to plaintiff Wolfson upon his compliance with the remaining provisions of the ordinance. Plaintiffs cross-appealed from that part of the order holding the ordinance valid in all other respects.

Plaintiffs Tagmire and Wilson are respectively honorably discharged veterans of World Wars I and II. Each holds a hawker's, peddler's and vendor's license issued by the Clerk of Atlantic County pursuant to N.J.S.A. 45:24-9 et seq. That statute provides that every honorably discharged soldier, sailor, marine, nurse or army field clerk who was in the active military or naval service of the United States in either of the two World Wars or certain other wars "shall have the right to hawk, peddle and vend any goods, wares or merchandise or solicit trade within this State, by procuring a license for that purpose to be issued in the manner and under the conditions hereinafter in this article prescribed: * * *." R.S. 45:24-10 directs that such license shall, upon application, be issued by the clerk of the county of the veteran's residence if the veteran has been honorably discharged and has resided within the State for at least six months and in the county for at least three months immediately preceding the application.

R.S. 45:24-9 was tested in Strauss v. Borough of Bradley Beach , 117 N.J.L. 45 (Sup. Ct. 1936), affirmed per curiam , 118 N.J.L. 561 (E. & A. 1937), a case dealing with a borough ordinance which prohibited all peddling. The borough contended that the statute was unconstitutional. In reversing Strauss' conviction for peddling the court said:

"There is no doubt we think of the purpose of the statutes. It was to class veterans of the various wars as a body and to entitle them to a privilege of peddling throughout the state regardless of the action of municipalities, whether such action took a prohibitive form or a regulative form. The statute is applicable to the state generally, making no exceptions, and if in conflict with a municipal ordinance the latter must cease to be effective." (117 N.J.L. , at page 46)

L. 1950, c. 156, amended R.S. 45:24-9 to provide that "hawking, peddling and vending hereafter may be regulated by municipal ordinance on public boardwalks and public

beaches." L. 1952, c. 344, extended this amendment to encompass "public boardwalks, public beaches, streets and highways."

The effective date of the 1950 amendment was May 31, 1950. Shortly thereafter and on July 13, 1950, the governing body of Atlantic City adopted Ordinance No. 19 "providing for the regulation and licensing of hawkers, peddlers and vendors, imposing license fees and providing penalties for the violation thereof." It is altogether clear that the ordinance was introduced and adopted pursuant to the provisions of the 1950 amendment, for the preamble recites the fact that L. 1950, c. 156, gave municipalities the right to regulate hawking, peddling and vending on the public boardwalk and public beaches by municipal ordinance. And section 5 of the ordinance, requiring application for a municipal license, as well as section 7 which provides that no license shall be issued unless the assistant director of public safety is satisfied that the applicant is honest, of good moral character, and the holder of a valid, subsisting license issued by the county clerk, both refer to N.J.S.A. 45:24-9 et seq. There can therefore be no question that the Atlantic City ordinance was adopted under the provisions of R.S. 45:24-9, as amended by L. 1950, c. 156, and not pursuant to N.J.S.A. 40:52-1(c) which empowers a governing body to make and enforce ordinances to license and regulate, among others, hawkers, peddlers and itinerant vendors of merchandise.

The scope and reach of the ordinance are apparent from a brief summary of some of its main provisions. Section 1 provides that no person shall hawk, peddle or vend any ice cream, food, beverages, confections or merchandise on the public beaches of Atlantic City without first having obtained a license from the assistant director of public safety. Section 5 requires a written application under oath, setting forth certain information, including whether the applicant had ever been convicted of a crime involving moral turpitude, whether he holds a license issued by the county clerk pursuant to R.S. 45:24-9 et seq. , and the type of product or commodity he intends to sell. The application is to be accompanied

by the applicant's photograph and fingerprints. Section 6 calls for an investigation of every application by the assistant director of public safety, and he is invested with "sole discretion as to the granting and denial of applications for licenses, in accordance with the standards, rules and conditions herein set forth." As already noted, under section 7 no license is to be issued by the assistant director unless he is satisfied that the applicant is honest, of good moral character, and the holder of a valid, subsisting license issued by the county clerk. Licenses are granted for a period of one year from July 1 and are not transferable without the consent of the assistant director (section 8). The annual license fee is $3.00 (section 9); and every licensee is required to wear and permanently display a badge issued by the municipality while he is engaged in hawking, peddling or vending (section 11). Section 14 gives the assistant director the power, upon his own motion or the written complaint of any person, to investigate the actions of any licensee and, after notice and hearing, to revoke or to suspend the license for all or less than the unexpired license period, where the licensee is found guilty of certain designated misconduct or violations. He may also summarily suspend the license where the offense is deemed by him detrimental to the public health, safety or welfare, provided a hearing is afforded within 15 days thereafter. Section 15 prohibits hawking, peddling or vending upon the public boardwalk. Section 16 limits the number of licenses to 100, "which number is deemed sufficient to meet the public need and prevent the creation of a public nuisance on the beaches of the municipality, and the consequent hazards to the health, safety and welfare of those persons who use the beach and ocean for health and recreational purposes." Section 19 fixes the conventional penalties for violation of the ordinance.

Plaintiffs claim the ordinance is illegal unconstitutional, and violative of the rights of veterans holding licenses issued to them by the county clerk. By their complaint they demand judgment restraining the municipality, its agents and officers, from arresting, prosecuting, or giving orders for the arrest

and prosecution of plaintiffs for hawking and peddling beverages upon the beach of Atlantic City; enjoining the assistant director of public safety to return to plaintiff Wolfson the permit issued to him to peddle and hawk merchandise, or to issue a new permit for that purpose; and declaring the ordinance invalid or construing it with reference to the right to limit the number of licenses and the right of the assistant director to issue permits or licenses thereunder.

The complaint and its annexed affidavits reveal that plaintiff Tagmire has peddled merchandise on the beach at Atlantic City every summer since 1930, and has been issued a city license to hawk, peddle and vend since the adoption of the 1950 ordinance. Plaintiff Wolfson has peddled ice cream on the beach since 1945. Although he applied for a city license in 1953 and again in June 1954, none was issued to him. Instead, on ...


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