[85 NJSuper Page 592] Defendants, duly licensed by the New Jersey Real Estate Commission as real estate brokers and real estate salesmen, were convicted in the municipal court for violation of a borough ordinance requiring the licensing of
persons engaged in soliciting or canvassing. Defendants' appeal proceeded de novo on a written stipulation of facts.
It is admitted the defendants were soliciting or canvassing from door-to-door, as defined in the ordinance; however, their conduct was for real estate purposes. They have alleged exemption from the ordinance by reason of N.J.S.A. 40:52-1 which provides in part:
"Nothing in this chapter contained shall be construed to authorize or empower the governing body of any municipality to license or regulate any person holding a license or certificate issued by any department, board, commission, or other agency of the State; provided, however , that the governing body of a municipality may make, amend, repeal and enforce ordinances to license and regulate real estate auctioneers or real estate brokers engaged in selling at auction and their business as provided in this section despite the fact that such real estate auctioneers or brokers may be licensed by the New Jersey Real Estate Commission and notwithstanding the provisions of this act or any other act."
Since defendants hold broker and salesmen licenses issued by the New Jersey Real Estate Commission pursuant to N.J.S.A. 45:15-1 et seq. they contend they come within the aforementioned reservation and are exempt from the provisions of the borough's ordinance.
The plaintiff, on the other hand, contends that the ordinance in question regulating and licensing solicitors and canvassers was adopted pursuant to R.S. 40:48-2 as an exercise of the general police power broadly granted by that statute permitting a municipality to regulate matters of purely local concern. The court agrees, noting, however, that there is no contradiction between the two statutes. N.J.S.A. 40:52-1 does not authorize a municipality to license all businesses but only those described therein. Soliciting or canvassing does not come within its descriptions. Moyant v. Paramus , 30 N.J. 528 (1959); Salomon v. Jersey City , 12 N.J. 379 (1953); Weiner v. Borough of Stratford, County of Camden , 15 N.J. 295 (1954); Borough of Belmar v. Berube , 63 N.J. Super. 69 (Cty. Ct. 1960).
The plaintiff further states that since this ordinance is passed pursuant to R.S. 40:48-2 it can regulate the defendants, not in their capacity as licensees of the Real Estate Commission, which admittedly it is without power to do, but as individuals engaged in the business of canvassing or soliciting. This being a matter of purely local concern, it can be regulated in the due exercise of its police power. The plaintiff concludes, therefore, that contrary to the defendants' assertion, there is no real conflict between the State's inherent power to regulate and the power delegated to the municipality.
Initially it should be noted that whether declared by the ordinance or, as in the case at bar, readily implied by a reading of its provisions, the purpose of such municipal legislation is the prevention of crime and dishonest business practices. Justice Hall stated in Moyant v. Paramus, supra:
"There can be no doubt that the business of soliciting and convasing is a proper subject for regulation under the police power, as is peddling, and has been so considered for generations. The way in which the business is necessarily conducted opens the way for fraud, deceit and dishonest dealing by the unscrupulous, even though by only a minority of those engaged in it, with redress difficult or practically impossible since the solicitor is very frequently a stranger and quickly gone from the locality. Resort may also be easily had to the business by the criminally minded for the purpose of obtaining admittance to private homes in furtherance of some present or future unlawful object. 40 Am. Jur., ibid. , § 7, p. 912. Courts have universally upheld the amenability of the business to reasonable police regulations. Town of Irvington v. Schneider , 120 N.J.L. 460 (Sup. Ct. 1938), affirmed 121 N.J.L. 542 (E. & A. 1939), reversed on other grounds Schneider v. State of New Jersey , 308 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155 (1939); Dziatkiewicz v. Township of Maplewood , 115 N.J.L. 37 (Sup. Ct. 1935); 7 McQuillin, Municipal Corporations (3 d ed. 1949), § 24.378; Rhyne, Municipal Law (1957), § 26-44; 40 Am. Jur., ibid. , § 16, p. 921. Registration and licensing are commonly accepted as such reasonable regulatory means since they require identification of the solicitor which will deter the dishonest and aid future location of the person if that be necessary. 40 Am. Jur., ibid. , § 30, p. 938; Rhyne, ibid. , § 26-48."
Accordingly, an examination of the ordinance reveals that it comprehensively presents a means of (a) identifying, for present and future reference, strangers in the community;
(b) determining their purpose for being there; (c) establishing whether heir character and business responsibility are such that they are sufficiently reputable to enter the homes of local residents. Furthermore, by providing for the denial or revocation of a license in certain instances, as well as penalties for violation of any ...