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Olan Mills Inc. v. Board of Commissioners

Decided: April 27, 1956.

OLAN MILLS, INC. OF OHIO, A CORPORATION OF THE STATE OF TENNESSEE, PLAINTIFF,
v.
BOARD OF COMMISSIONERS OF THE CITY OF TRENTON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT



Ewart, J.s.c.

Ewart

By this suit which partakes of the nature of a suit in lieu of the old prerogative writ of certiorari and also of the nature of a bill in chancery for an injunction, plaintiff attacks the validity, as applied to it, of Ordinance 884 of the City of Trenton, being an ordinance governing, regulating and fixing license fees of those engaged in the business of itinerant vendors of photographs and photographic services in the City of Trenton, and seeks an order or judgment restraining the defendant city from enforcing the provisions of said ordinance against it, the plaintiff.

An ad interim order was entered on May 24, 1955 restraining the city from enforcing the ordinance against the plaintiff pending final hearing in this cause.

The facts of the controversy are not in dispute. I find the essential facts to be as follows:

Plaintiff, a Tennessee corporation, authorized to do business in the State of New Jersey, has its principal place of business in the City of Springfield, Ohio. It is and has been engaged in the business of promotion and production of fine portraiture throughout a large area of the eastern part of the United States, ranging from Maine to Missouri, and maintains and operates a large number of photographic studios in various communities in several states from which studios agents and employees of the plaintiff solicit business; arrange for portrait sittings; photographs are taken in the several local studios; and the negatives are forwarded to the plaintiff's main plant at Springfield, Ohio for developing and processing.

February 23, 1955 plaintiff entered into a written lease with one Jennie L. Invidiato covering four offices on the second floor of a building situate at 132 East Hanover Street in the City of Trenton, for a term of one year from March 1, 1955 at an annual rental of $1,500 payable in equal monthly installments of $125 each month in advance. Said lease contains an option to the lessee to renew the lease for a further term of one year on the same terms and conditions as the original lease, and also it contains an express

agreement between the parties giving the lessee the right to cancel and terminate the lease at any time on 30 days' written notice to the lessor.

On the same day, viz. , February 23, 1955, plaintiff applied to the City Clerk of the City of Trenton and obtained a license authorizing it to carry on the business of a "Photog. w/studio" at 132 East Hanover Street for a period of one year from January 1, 1955 to December 31, 1955, for which plaintiff paid the city a license fee of $25 under the provisions of Ordinance No. 504 of the city, being a general mercantile ordinance regulating and fixing license fees of certain professions, trades, businesses, callings and occupations carried on in the City of Trenton. Said ordinance last mentioned, under which said license was taken out, fixes a license fee of $25 for "Photographers engaged in the business of taking pictures or photographs and/or developing, copying or enlarging the same, for each gallery or studio."

Plaintiff customarily operates its business, and has done so in this instance, principally by means of solicitation by telephone, but, in addition thereto, has to some extent had its agents and employees canvass from door to door among the residents of the city.

The city authorities have heretofore received complaints from citizens and others regarding other companies employing similar solicitation methods not living up to their contractual obligations, but no complaints have been received by the city authorities regarding the plaintiff's operations. Plaintiff was still carrying on its business at the address mentioned, in the same manner as above described, up to the time of the pretrial conference in this cause on February 17, 1956.

In the operation of its said business, where a "sale" is made, plaintiff customarily collects a small fee from the customer and delivers to the customer a certificate giving the customer the right to have three photographic sittings during the year and a choice of three ...


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