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Township of Mount Holly v. Omar

Decided: June 13, 1958.


McGann, J.c.c.


This is an appeal from a conviction in the Municipal Court of the Township of Mount Holly under a municipal ordinance entitled "An Ordinance of the Township of Mount Holly in the County of Burlington to Further Control Canvassing and Soliciting Within Said Township and Providing Penalties for the Violation Thereof." The authority for the enactment of the ordinance is found in N.J.S.A. 40:48-2.

The defendant was employed under an agreement with C.W. Stuart & Co., a corporation of the State of New York, with its principal office in Newark, New York. His employment agreement designated him as being a sales person and provided, among other things, that he would canvass and solicit bona fide orders for landscaping, fruit and plant materials on behalf of the C.W. Stuart & Co. His sales work consisted, generally, of contacting home and farm owners directly, and soliciting from door to door. Upon obtaining a sales order, the same would be forwarded to C.W. Stuart & Co. and the material provided for in the sales order would be shipped by the company directly to the customer. The consideration or sales price of the material would be paid by the customer to C.W. Stuart & Co. at its office in Newark, New York. The material purchased would be

shipped by mail to the customer. The customer, upon receipt of the merchandise, generally trees and other nursery stock, would then plant the same in keeping with a previously designed plan and agreement made by and between the defendant and the customer. With each contract, there was a form of "replacement guarantee" which in substance provided for replacement of all trees and nursery stock which did not live through the first year.

The defendant Omar contends that he was an independent sales person engaged in interstate commerce and that each of the transactions in question constituted a form of transaction in interstate commerce.

The plaintiff township contends that the ordinance above mentioned requires any person desiring to solicit in the Township of Mount Holly to first register with the chief of police. The chief of police has no discretion under the ordinance to grant or refuse a permit. The permit, generally, is obtained by the applicant after giving his name, photographs of his face, other identifying matter and the sum of 75 cents to cover the fee for the registration certificate.

In this case, it is admitted that the defendant failed to register before soliciting orders in the township in question.

The matter is before the court on a trial de novo with most of the facts stipulated. The question to be determined by this appeal is whether or not the ordinance in question violates the defendant's constitutional rights, having in mind that the transactions in question constitute interstate commerce and that the Constitution of the United States, under Art. I, par. 8, clause 3, vests in the Congress of the United States all legislative powers "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

The appellant relies on the authority of Real Silk Hosiery v. City of Piedmont , 274 U.S. 723, 47 S. Ct. 657, 71 L. Ed. 1326 (1927), which follows the holding in the case of Real Silk Hosiery v. City of Portland , 268 U.S. 325, 45 S. Ct. 525, 69 L. Ed. 982 (1925), in which, among other things, it was decided that a sales person who takes orders for future

delivery of merchandise in one state when in fact the merchandise is to be shipped from another state, that such a transaction constitutes interstate commerce and a local regulation requiring a permit upon payment of $1 and an application fee of $12 payable quarterly was an undue burden upon interstate commerce. The defendant also cites Shafer v. Farmers Grain Company , 268 U.S. 189, 45 S. Ct. 481, 486, 69 L. Ed. 909 (1925), in which the Supreme Court said, among other things, that if there is any evil arising out of individual solicitation and sales work in connection with interstate commerce, "the power of correction does not rest with [the state] but with Congress where the Constitution intends that it shall be exercised with impartial regard for the interests of the people of all the states that are affected."

The defendant also cites New Jersey cases, one of which is the case of Dimmig v. Mann , 120 N.J.L. 442 (1938), in which our former Supreme Court, speaking ...

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