Conford, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
Defendant, an itinerant ice cream vendor, was convicted and fined $50 in the Municipal Court of the Township of Union for violating the following township ordinance provision:
"It shall be unlawful for any person to operate an itinerant retail food handling establishment upon which food is prepared and from which food is served or sold."
There was a plenary trial in the municipal court, at which a stenographic record was made of the entire proceedings, pursuant to R.R. 8:7-5, including the testimony of the several witnesses in support of the complaint, and the testimony of the defendant and several witnesses in support of his defense.
On defendant's appeal to the Union County Court, there was a trial de novo based upon the stenographic record of the proceedings below pursuant to R.R. 3:10-10. The Judge of the County Court, as indicated by his judgment, considered the stenographic record of the trial of this matter in the municipal court, the briefs submitted by the parties and the argument of counsel, and, having set forth his reasons in a written opinion, adjudged that (1) the ordinance provision in question was invalid; (2) the defendant was acquitted of the charge of violating the said ordinance and his said conviction was set aside; and (3) the fine of $50 with costs imposed upon the defendant was ordered to be returned to him.
The written opinion of the Judge of the County Court indicates his analysis of the evidence in the case, the pertinent legal principles involved, and his factual and legal conclusions.
The township appealed to this court from the judgment of acquittal and the declaration of the invalidity of the ordinance provision.
In their original briefs and at the oral argument, no question was raised by the parties or discussed by them as to the appealability of the County Court judgment of acquittal, but the case was presented on the issue of the validity of the ordinance provision in its application to the facts of the defendant's situation. In our study of the problem involved we raised the question of appealability because of the ruling of our Supreme Court in the case of City of Newark v. Pulverman , 12 N.J. 105 (1953). We requested supplemental briefs from the parties covering this point, which we have received and considered.
The issue of non-appealability is so fundamental, going as it does to the very jurisdiction of the appellate court, and the constitutional mandate against double jeopardy is so compelling, N.J. Constitution of 1947, Article I, par. 11, as to require consideration of the issues by the appellate court on its own motion.
In the Pulverman case, a comparable situation presented itself to the Supreme Court. There, a parking lot operator was convicted in the municipal court for violating the city's zoning ordinance. On appeal to the Essex County Court, after a trial de novo , the operator was found not guilty, City of Newark v. Martin , 19 N.J. Super. 328 (Cty. Ct. 1952), upon the County Court's interpretation that a parking lot was not included within the meaning of "public garage" covered by the ordinance. The city then appealed to the Appellate Division, where the judgment of acquittal was reversed and it was determined that a parking lot was a "public garage" within the definition of the ordinance. 22 N.J. Super. 32 (App. Div. 1952). The issue of appealability
from the County Court to the Appellate Division was not raised prior to the opinion of the Appellate Division resolving the issues on the merits of the case. Thereafter the question of appealability was raised for the first time in a petition for ...