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State v. Mauer

Decided: June 6, 1962.


Convery, J.c.c.


Defendant prosecuted this appeal from a conviction in the South Plainfield Municipal Court of the violation of an ordinance entitled, "An Ordinance to Regulate and Prohibit Persons from Canvassing, Soliciting or Peddling from House to House or on the Streets and Regulating the Distribution of Circulars Pamphlets and Other Forms of Advertising throughout the Borough of South Plainfield."

Defendant Joseph Mauer is the district manager of Family Record Plan Inc., a California corporation engaged in the sale of photograph albums. He and his six subordinates cover a territory comprising Monmouth, Mercer, Somerset, Hunterdon, Union and Middlesex counties. South Plainfield is situated in the last mentioned county. His California employer furnished him with birth lists, and calls were made upon those whose names appeared thereon. From these individuals defendant obtained the names of others who might be interested in the purchase of an album and called on them. It does not appear that any appointments were ever made with prospective purchasers, but rather that defendant arrived unannounced and uninvited. He carried with him a sample album, but no sale was made of it. Instead, a purchase order was executed by the customer and this was forwarded by defendant to the California corporation for acceptance. Once accepted, the album was shipped directly to the customer from outside New Jersey. Installment payments were made by the customer directly to the California corporation and defendant had no further dealings with the former.

In the course of his business defendant called on 10 to 12 customers a day, who resided in as many as five to six different municipalities. During any calendar year calls were made in 100 municipalities; in some quite frequently, while in others only once.

The South Plainfield ordinance provides that "it shall be unlawful for any * * * solicitor * * * to take orders for any goods * * * within the Borough of

South Plainfield without first obtaining a license therefor." In order to procure the prescribed license it is necessary to apply in writing to the borough's chief of police on an application blank furnished by the latter and which requires the following information:

"The name and address of the person making such application, his date and place of birth, height, weight, color, marital status, length of present residence, previous criminal record, general description of clothing worn, name and address of employer, description of the product for which applicant is canvassing, copy of any and all contracts, agreements and other paper writings to be signed by the persons to be approached by the canvasser, certified to be true by the applicant's employer. Each applicant shall be fingerprinted before the permit is issued."

This application form, when completed, is submitted to the chief of police, upon whom falls the obligation of investigating the statements made therein. This inquiry is to consume no more than three days, and upon its completion the police chief indicates his approval or disapproval on the application. If approved, the applying solicitor must take the application to the borough treasurer, pay a $5 fee (which has been determined to be the reasonable cost of investigating the character and record of the solicitor), and obtain acknowledgment of that payment on the application from the treasurer. The applicant is then to return the completed form to the chief of police, who issues the license, together with "a badge about three inches in diameter numbered and bearing the name of the Borough and the word 'solicitor'" for which a deposit of $1 is paid as security for its return. The licensee must wear this badge "conspicuously upon his person at all times." The license expires on December 31 of each year, and a fine or prison term is prescribed for the violation of the ordinance's provisions.

Without having either applied for or having received a license to solicit, defendant carried on his business in South Plainfield, was brought before its municipal court for an

alleged violation of the ordinance set forth above, convicted thereunder, and fined $10 plus court costs. It is from that proceeding that defendant prosecutes this appeal.

Defendant contends that he is not a solicitor within the definition of the ordinance and thus not subject to its terms; that the ordinance was passed for revenue purposes pursuant to N.J.S.A. 40:52-1 and 2 and hence inapplicable to his interstate activities; that if applicable to him, the ordinance imposes an undue burden on interstate commerce, contrary to the United States Constitution, Art. I, sec. 8; and that the ordinance is ...

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