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Borough of Belmar v. Berube

Decided: September 15, 1960.

BOROUGH OF BELMAR, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF,
v.
EDWARD BERUBE, TRADING AS BERUBE PLUMBING AND HEATING, DEFENDANT



Giordano, J.c.c.

Giordano

This is an appeal from a conviction in the Municipal Court of the Borough of Belmar on a complaint which charged that the appellant, Edward Berube, trading as Berube Plumbing and Heating, "did engage in the business of plumbing and heating services in the Borough of Belmar to wit: 510-11th Avenue rear, and did refuse to obtain a mercantile license to conduct these services after being so directed by the license inspector and the plumbing inspector in violation of Belmar Borough Ordinance #465, Sections 201, 202 and 202A."

Briefly, the facts are that the appellant has his place of business of plumbing in the Borough of South Belmar, Monmouth County, New Jersey, where he resides. The issue is whether the Borough of Belmar under its mercantile license ordinance could compel an out-of-town business to secure a mercantile license and whether the ordinance in question applies.

Before exploring the question, it is not redundant to state that a municipality has the power to enact ordinances not contrary to the laws of New Jersey or of the United States which it "deem[s] necessary and proper * * * for the preservation of the public health, safety and welfare of the municipality and its inhabitants * * *." R.S. 40:48-2; see 9 McQuillin, Municipal Corporations , sec. 26.127. However, the issue in the instant case is not whether a municipality has power to license and regulate the vocation of plumbing but whether by the ordinance in question, the Borough of Belmar can require a plumber who maintains his place of business in another municipality to take out a mercantile license.

Section 201 of the ordinance provides that "it shall not be lawful for any person, either directly or indirectly, to

conduct any business as defined in this ordinance * * * unless a license or a permit therefore is first procured and kept in effect at all such times as required by this ordinance. * * *"

Sections 202 and 202A provide that "* * * any person shall be deemed engaged in business and subject to the provisions of this ordinance when he does one act of: (a) selling any goods or service."

A review of section 201 reveals that it is applicable only to persons who "conduct any business as defined in this ordinance." Section 101 defines business as

"The term business (as used in both singular and plural sense) is meant to include all kinds of vocations, occupations, professions, enterprises, establishments and all other kinds of activities and matters * * *, as set forth in Section 40:52-1 of the Revised Statutes of the State of New Jersey and the Acts amendatory thereof and supplemental thereto."

Therefore our search for the businesses which are governed by the Belmar ordinance leads us to N.J.S.A. 40:52-1. This statute, in 12 subsections, enumerates the different types of business activity which the municipality may license and regulate. Subsection (g) is the only part of N.J.S.A. 40:52-1 which can possibly circumscribe the type of business activity involved here, namely, the furnishing of plumbing services by a master plumber who maintains his place of business in another municipality. Subsection (g) extends the licensing power of a municipality to include:

"Lumber and coal yards, stores for the sale of meats, groceries and provisions, dry goods and merchandise, and goods and chattels of every kind, and all other kinds of business conducted in the municipality other than herein mentioned, and the places and premises in or at which the business is conducted and carried on; street stands for the sale or distribution of newspapers, magazines, periodicals, books, and goods and merchandise or other articles;" (Emphasis supplied)

The problem resolves itself to whether the phrase "all other kinds of business conducted in ...


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