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Moyant v. Borough of Paramus

Decided: August 3, 1959.


For modification -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. Opposed -- None. The opinion of the court was delivered by Hall, J.


We are concerned here with the validity of certain provisions of an ordinance of the defendant municipality "regulating and licensing solicitors and canvassers" struck down by the Superior Court, Law Division, as generally unlawful under state law or invalid as to plaintiff under the Commerce Clause of the Federal Constitution. The municipality appealed and we certified the cause on our own motion before it was heard in the Appellate Division, pursuant to R.R. 1:10-1(a).

Questions are involved which have not heretofore been directly passed upon by the court of last resort in this State. They can best be introduced and appreciated by an analysis of the ordinance, but certain fundamentals should first be noticed. The form and pattern of this local legislation is found in many of our municipalities and it concededly follows a model prepared by a national organization of municipal law officials for general use throughout the country. Broad in scope and strict and detailed in its regulatory and procedural features, the scheme is one of regulation by municipal registration and license, issuable only on compliance with numerous conditions, many of them on the onerous side. Inherently underlying the issues presented to us is the frequent problem of accommodation of the right to pursue an otherwise lawful business and earn a livelihood thereby with the interest of protection of the citizenry, under the general police power, from evils and bad features connected with it, involving considerations of both constitutionality and municipal power. We are mindful of the compulsory admonition of our State Constitution (Art. IV, sec. VII, par. 11) that the provisions thereof and of any law concerning municipal corporations "shall be liberally construed in their favor" and of the familiar rule of the presumption of validity of a municipal ordinance. Kozesnik v. Montgomery Township, 24 N.J. 154, 167 (1957); Bibb v. Navajo Freight Lines, 359 U.S. 520, 79 S. Ct. 962, 3 L. Ed. 2 d 1003 (1959). On the other side of the coin

is the postulate that a local municipality is but a creature of the State, capable of exercising only those powers granted to it by the Legislature (Wagner v. Mayor and Municipal Council of City of Newark, 24 N.J. 467 (1957)), and the equally important truism that the presumption of validity referred to is only a presumption and may be overcome or rebutted not only by clear evidence aliunde, but also by a showing on its face or in the light of facts of which judicial notice can be taken, of transgression of constitutional limitation or the bounds of reason. Guill v. Mayor and Council of City of Hoboken, 21 N.J. 574, 581 (1956); State v. Wittenberg, 50 N.J. Super. 74, 78 (App. Div. 1957), affirmed 26 N.J. 576 (1958).

The ordinance commences by making it unlawful to engage in the business of solicitor or canvasser without first obtaining "a permit and license therefor" in compliance with the ordinance provisions. It defines canvasser or solicitor as any individual, whether resident of the borough or not (so it is not discriminatorily bad in this respect, Morgan v. Orange, 50 N.J.L. 389 (Sup. Ct. 1888); cf. Haddon Heights v. Hunt, 90 N.J.L. 35 (Sup. Ct. 1917), affirmed 91 N.J.L. 696 (E. & A. 1918); Lynch v. City of Long Branch, 111 N.J.L. 148 (Sup. Ct. 1933)), travelling by foot or any other conveyance "from place to place, from house to house, or from street to street," taking or attempting to take orders for the sale of goods for future delivery or for services to be performed in the future, whether or not a sample is carried or displayed and whether or not advance payments are collected. The language is so broad that, on its face, wholesale salesmen periodically calling on retail merchants would appear to be within its compass. Cf. Hewson v. Inhabitants of Tp. of Englewood, 55 N.J.L. 522 (Sup. Ct. 1893). (Persons selling goods with simultaneous delivery are designated as "peddlers," "hawkers" or "hucksters," and are covered in the borough by a companion ordinance having a generally similar licensing and regulatory scheme.) A solicitor, by the ordinance, also includes any

person who leases or uses any building, hotel room, shop or any other place for the sole purpose of exhibiting samples and taking orders for future delivery. No time limitation for such activity being prescribed, the ordinance would seem to apply to one who had a permanent store doing business only by sample.

The license must be sought by a sworn written application in duplicate, filed with the borough clerk, which must contain or be accompanied by the following data: name and description of applicant, with permanent home address and full local address; description of the nature of the business and goods to be sold; if employed, name and address of the employer, together with credentials establishing the exact relationship; the length of time for which the right to do business is desired; the place where the goods to be sold or orders taken therefor are manufactured or produced, where such are located at the time the application is filed and the proposed method of delivery; a two-inch-square photograph of the applicant taken within 60 days; the fingerprints of the applicant; "the names of at least two reliable property owners of the County of Bergen and State of New Jersey, who will certify as to the applicant's good character and business respectability, or, in lieu of the names of references, such other available evidence as to the good character and business responsibility of the applicant as will enable an investigation to properly evaluate such character and business responsibility; a statement as to whether or not the applicant has been convicted of any crime, misdemeanor, or violation of any municipal ordinance, the nature of the offense and the punishment or penalty assessed therefor; and a statement by a reputable physician of the County of Bergen * * *, dated not more than ten (10) days prior to the submission of the application, certifying the applicant to be free of contagious, infectious, or communicable disease." A $5 fee is to be paid at the time of filing "to cover the cost of investigation of the facts stated therein."

The original of the application is to be referred to the chief of police, "who shall cause such investigation of the applicant's business and moral character to be made as he deems necessary for the protection of the public good. If as a result of such investigation, the applicant's character or business responsibility is found to be unsatisfactory," the police chief shall endorse his disapproval and the license shall not issue. If such is found "to be satisfactory," the chief shall endorse his approval and execute a license to be formally issued by the clerk upon payment of the license fee. The license shall be exhibited at the request of any citizen. To be issued at the same time is a badge setting forth the words "Licensed Solicitor," the period for which the license is issued and the number thereof in letters and figures easily discernible from a distance of ten feet, to be conspicuously worn on the front of a licensee's outer garment.

The next provisions of the ordinance deal with the license fee, which is flat rate and fixed at $25 and "shall be for a six (6) month period." Since a later section specifies that all licenses shall expire on the date specified therein and there is no provision for renewal, the whole procedure would have to be gone through again every six months by those solicitors desiring to engage in the business in the municipality continuously or at periodic intervals.

Then comes a fee adjustment section reading in this fashion:

"None of the license fees provided for by this ordinance shall be so applied as to occasion an undue burden upon interstate commerce. In any case where a license fee is believed by a licensee or applicant for license to place an undue burden upon such commerce, he may apply to the Mayor and Council for an adjustment of the fee so that it shall not be discriminatory, unreasonable, or unfair as to such commerce. Such application may be made before, at, or within six (6) months after payment of the prescribed license fee. The applicant shall, by affidavit and supporting testimony, show his method of business and the gross volume or estimated gross volume of business and such other information as the Mayor and Council may deem necessary in order to determine the extent, if any, of such undue burden on such commerce. The Mayor and Council

shall then conduct an investigation, comparing applicant's business with other businesses of like nature and shall make findings of fact from which he shall determine whether the fee fixed by this ordinance is unfair, unreasonable or discriminatory as to applicant's business and shall fix as the license fee for the applicant, an amount that is fair, reasonable and non-discriminatory, or, if the fee has already been paid, shall order a refund of the amount over and above the fee so fixed. In fixing the fee to be charged, the Mayor and Council shall have the power to base the fee upon a percentage of gross sale, or any other method which will assure that the fee assessed shall be uniform with that assessed on businesses of like nature, so long as the amount assessed does not exceed the fees as prescribed by Section 5(a) of this ordinance. Should the Mayor and Council determine the gross sales measure of the fee to be the fair basis, he may require the applicant to submit, either at the time of termination of applicant's business in the Borough of Paramus or at the end of each three (3) month period, a sworn statement of the gross sales and pay the amount of fee therefor, provided that no additional fee during any one calendar year shall be required after the licensee shall have paid an amount equal to the annual license as prescribed in Section 5(a) of this ordinance."

The ordinance further requires a bond in the sum of $1,000 running to the borough, with surety acceptable to and approved by the borough attorney, to be filed with the clerk by certain applicants presumably just prior to the issuance of the license. The bond is to be furnished only by non-residents of the borough or residents representing a firm whose principal place of business is located outside the State. There is no requirement of designation of an agent for acceptance of the service of process. The condition of the obligation is that the licensee will fully comply with all ordinance and statutory provisions regulating the business of solicitor "and guaranteeing to any citizen of the Borough of Paramus that all money paid as a down payment will be accounted for and applied according to the representations of the solicitor and further guaranteeing * * * that the property purchased will be delivered according to the representations of said solicitor." Action may be brought thereon in the name of the borough to the use or benefit of the aggrieved person. It is to be noted that the condition

does not cover the agreed furnishing or performance of services, as for example home improvements, which are included in the definition of soliciting.

Also contained in the ordinance are provisions giving the right of appeal to the governing body and hearing thereon to an applicant denied a license by the chief of police, and for revocation of a license by the same body, after notice and hearing, for fraud, misrepresentation or false statement in the license application or in the course of carrying on the business, any violation of the ordinance, conviction of "any crime or misdemeanor involving moral turpitude" or conducting the business "in an unlawful manner or in such a manner as to constitute a breach of the peace or to constitute a menace to the health, safety, or general welfare of the public."

The penalty for violation is fixed at a fine not to exceed $200 or imprisonment for not more than 90 days, or both. Also found is a detailed severance clause specifying the legislative intent to be that, in the event of invalidity of any section, sentence, clause or phrase, the remainder shall continue in effect.

The companion peddlers ordinance referred to is substantially identical, except that there is no investigation fee to be paid on the filing of the application; the license fee is on a calendar year basis at the annual amount of $50 without any prorating, which is specified to be for the purpose of raising revenue; there is no provision for adjustment thereof, and neither a bond nor badge is required.

The case was tried without a jury on a stipulation of facts with no oral testimony, and comes to us on an agreed statement in lieu of the record. R.R. 1:6-2.

Plaintiff, a resident of New York City, is the regional sales representative of the National Literary Association, of Terre Haute, Indiana, a company engaged in the business of building up magazine circulation throughout the country. He, in this capacity, supervises and manages a ...

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