Haviland v. Egan

Perskie, J. This matter comes before me on the return of a writ of certiorari to review a conviction of the prosecutor by the recorder of the borough of Point Pleasant, New Jersey. The conviction was based on a complaint of License Inspector Charles P. More, of said borough, and was in the form following : “That on the 22d day of May, 1933, at the Borough of Point Pleasant Beach, the county and state aforesaid, one Prank Haviland, of 1807 South Belmar, New Jersey, did on the 22d day of May, solicit and canvas for the laundry business, all of which is in violation of Borough Ordinance 8-5-A — Section 1, of the Borough of Point Pleasant Beach, New Jersey, wherefore he prays that the said Prank Haviland may be apprehended and held to answer the said complaint and dealt with as law and justice may require.” The record submitted does not contain the ordinance in question. Defendants, however, admit that section 1 of the ordinance involved is correctly quoted in brief submitted for the prosecutor. The pertinent portions of said section are as follows: “It shall be unlawful for any person or persons * * * to conduct a business of or act as * * * ‘Traveling Laundry’ without having first obtained a license from the license inspector of the Borough of Point Pleasant Beach to do so.” The testimony before the recorder was taken stenographieally and. is returned with the writ. The facts appear to be that Prank Haviland was employed by Morey LaRue Laundry Company, whose plant and home office is at Elizabeth, New Jersey. Prosecutor collected laundry in the borough of customers of Morey LaRue Laundry Company, transported it to Elizabeth, where it was washed and prepared and thereafter delivered to its customers in the borough. The Morey [801] LaRue Laundry Company maintains no plant or office in the borough. The prosecutor has filed ten reasons why the conviction should be set aside. They are grouped in three classifications. First, the complaint does not properly charge prosecutor with the violation of an ordinance, because the title of the ordinance was not set forth in the complaint. Second, there was no evidence to support the conviction. Thirdly, that the borough of Point Pleasant Beach is without power to require license from person or persons or corporations whose place of business is established outside the municipality. I think that these objections are well taken. The complaint charges the prosecutor with soliciting and canvassing for the laundry business, whereas the ordinance is directed against "conducting a business of or acting as a traveling laundry.” The difference, if any, between soliciting and canvassing for laundry and conducting a traveling laundry is not disclosed by the record. Counsel for the borough, however, in his memorandum concedes that the complaint is defective in this respect. Properly so. All acts necessary to constitute a violation under the ordinance should be so stated. Apter v. City of Newark, 6 N. J. Mis. R. 554; 142 Atl. Rep. 310. The complaint should state with legal certainty the offense alleged and must state the particular ordinance which has been violated by the defendant. Cohn v. Union City, 105 N. J. L. 515; 146 Atl. Rep. 652. Nothing is presumed or intended in favor of a validity of a complaint or of a conviction had thereon, the ordinance being penal and the proceeding summary. Owens v. City of Camden, 6 N. J. Mis. R. 279; 141 Atl. Rep. 24. Assuming without deciding that soliciting and canvassing for the laundry business and conducting a business of or acting as a traveling laundry is one and the same thing, it is contended that this and all other defects were waived by the appearance and trial without objection by the prosecutor. This is not so. True it is that when one entered a general appearance and proceeds with trial without objection to the complaint he waives all technical objections which he might have otherwise raised. He does not, however, waive an ob [802] jection, if it be a valid one, that the complaint sets forth no offense. See State v. Johnson, 91 N. J. L. 611; 104 Atl. Rep. 593; State v. Lamb, 81 N. J. L. 234; 80 Atl. Rep. 111. Prosecutor also contends that the proof taken at the hearing did not reveal a violation of the ordinances. The only testimony submitted by the borough was that Haviland was seen “delivering and soliciting laundry,” and that “he received and delivered laundry,” in the borough, with the explanation that by “soliciting” the witness meant delivery. At this stage of the hearing, counsel for Haviland moved for a dismissal, which was denied. This I think was error. The proof recited does not justify a conviction under the ordinance before the court for the same reason that the complaint does not charge an offense. Receiving and delivering laundry is not a violation of the ordinance. The final point, the gravamen of the objections, made by the prosecutor is that the borough did not have the power to pass an ordinance compelling a person resident in another municipality and without a place of business in the borough to obtain a license in order to do business in the borough. This question has been before the court on numerous occasions, the last of which was in Lynch v. City of Long Branch, 111 N. J. L. 148; 167 Atl. Rep. 664. The ordinance in the latter case made it unlawful for anyone to engage in or carry on any business, trade or calling within the municipality without first obtaining a license. The accused conducted a laundry business in Asbury Park but also served in the city of Long Branch. After conviction he obtained a writ of certiorari and the conviction was set aside. Mr. Justice Heher, in a well considered opinion, held that the situs of the business is the proper place for the levying of the tax, citing Cary v. North Plainfield, 49 N. J. L. 110, and numerous other cases. The principle may also be found in Wilkinson-Gaddis Co. v. The Borough of Neptune City, 85 Id. 21; 88 Atl. Rep. 819 (ordinance requiring license fee for every wagon, truck, &c., used in the municipality, held invalid); and Kip v. City of Paterson, 26 N. J. L. 298 (ordinance requiring all persons selling and delivering hay and produce in city limits, held unreasonable and illegal). See, also, Castles Ice Cream Com [803] pany of Perth Amboy v. Borough of Highlands, It N. J. Mis. R. 415; 146 Atl. Rep. 37. As prosecutor did not have or maintain a place of business in the borough he was not obliged to obtain a license. Lynch v. City of Long Branch, supra. The conviction must be set aside, with costs.