Opinion
Submitted February 17, 1939 —
Decided April 21, 1939.
1. Prosecutor was convicted of violation of the municipality's ordinance regulating traffic, and expressly prohibiting the parking of any vehicle on any street for the purpose and during the process of selling and delivering therefrom, to a consumer, goods, etc.; parking being defined therein substantially as it is in the Traffic act. R.S. 39:1-1. The conceded facts were that on a particular occasion he stopped his truck on one of the streets, presumably on the signal of a customer, took out an ice cream product he was vending, and sold it to the customer. Held, that prosecutor, in so stopping for purpose of a sale, did "park" his truck for the purpose of selling and delivering therefrom, within the intendment of the Traffic act and of the ordinance, and was therefore guilty of violation of the ordinance in question.
2. Held, further, that the ordinance under review is not a special ordinance within the intendment of section 39:4-198 of the Traffic act, requiring due public notice of such special ordinance by placing signs briefing its provisions at the places where it is effective; and held, also, that it is not invalid, as being unreasonable and arbitrary.
On appeal from the Supreme Court, in which Mr. Justice Parker filed the following opinion:
"The prosecutor was convicted in the Recorder's Court of Millburn of violating the fifth section of `An ordinance to regulate vehicular traffic in the township of Millburn * * * and providing penalties for the violation thereof.' The fifth section, so far as applicable, reads as follows: `the parking of any vehicle within the lines of any street * * * in said township for the purpose and during the process of selling and delivering thereat and therefrom, to a consumer, goods, wares and merchandise, being hereby expressly prohibited.'
"The ordinance defines `parking' (section 1b) as `the standing or waiting on any street * * * of any vehicle not actually engaged in receiving or discharging passengers or merchandise, unless in obedience to traffic regulations or traffic signs or signals.' This language is substantially identical with that of the Traffic act. R.S. 39:1-1.
"The conceded facts are that prosecutor was operating a truck from which he sold `Good Humors,' an ice cream specialty, to any who wished to buy; that on the particular occasion charged in the complaint, he stopped the truck in a Millburn street, presumably on the signal of a customer, took out a Good Humor and sold it to the customer. (The `Good Humor' trucks and drivers are a familiar sight to motorists driving during the warm weather.) The complaint charged that `the said Warren England did sell Good Humor ice cream from a motor vehicle on Wellington avenue.' It does not charge that he `parked' his car to do it; but no point is made of this omission, so I consider the case as developed by the uncontradicted evidence.
"Essentially, what the prosecutor did was to peddle Good Humors; but we are not here concerned with the law on peddling. Did he `park' his car when he stopped and made the sale? I think that clearly he did, within the intendment and language of the Traffic act and of the ordinance. It is urged that he was `actually engaged in * * * discharging * * * merchandise' and hence not within the definition. But I think discharging merchandise is a very different matter from peddling and that the part of section 5 above quoted fairly indicates the distinction, viz.: `the process of selling and delivering thereat and therefrom, to a consumer.' If a grocery wagon stops in front of the house of a customer to deliver food in response to an order, that is one thing; if a wagon or automobile traverses the streets to sell its contents to any and all comers, that is quite another.
"The other point made for prosecutor is that the ordinance was ineffective because of non-compliance with section 39:4-198 of the Traffic act, which reads as follows:
"`No special ordinance passed under any power given by this chapter shall be effective unless due notice thereof is given to the public by placing a sign at the places where the ordinance is effective, and by briefing its provisions on signs according to specifications contained in this chapter. These signs shall be so placed as to be easily read by pedestrians or operators of vehicles.' R.S. 34:4-198.
"I think the answer to this is that the ordinance is not a `special ordinance' in the sense intended by the statute, at least in the particulars now under consideration. I take it that the phrase `special ordinance' in R.S. 39:4-198 refers back to the proviso of section 197 `provided that ordinances may be passed regulating "special conditions existent in the municipality (italics mine) on the subjects and within the limitations following" one of which subjects is (g) "regulations governing the parking of vehicles on streets and portions thereof." With this should be considered "(b) limiting use of streets to certain classes of vehicles."'
"Now an illuminating illustration of (b) is the Pulaski Skyway case, Garneau v. Eggers, 113 N.J.L. 345 , where trucks were forbidden the use of one particular highway. In Eveler v. Atlantic City, 91 Id. 135, the forbidden territory was limited to a strip three hundred and fifty-one feet wide adjoining the Atlantic City boardwalk. In Giant Tiger Corp. v. Trenton, 11 N.J. Mis. R. 836, there was a restricted and specified territory. These, I think, are all illustrative cases of a `special ordinance' in the sense intended in section 198. But the ordinance under review is limited only by the boundaries of the township, and applies to `any street, road, avenue or other public way.' To require under these conditions a compliance with R.S. 39:4-177 by calling for the installation of `no parking' signs of the specific size and character placed no more than two hundred and fifty feet apart on every street, road, avenue or other public highway in the township of Millburn, and which signs would necessarily have to restrict the parking prohibition to `for the purpose and during the process of selling and delivering to a consumer, goods, wares and merchandise,' strikes me as an absurdity and something that could never have been intended by the language of the statutes that are now in vogue.
"The above are the two main points urged, and I think both are without substance.
"There is a third point in general terms, that the ordinance is invalid because it is unreasonable and arbitrary. I think that it is neither and can see good reason for its enactment where, as here, the very circumstances indicate danger to the lives of children arising from purchases from automobiles standing on a public street and the necessity in this case, as in many others, of crossing the street in order to make the purchase. I conclude, therefore, that the rule to show cause should normally be discharged. This, without more, would terminate the present application, but it has been stipulated by counsel that the whole matter should be considered and adjudged as though a writ of certiorari had been granted and the matter had been decided by a single justice sitting as the court at a final hearing; and counsel have gone to the trouble and expense of printing the case in the manner required by the rules of the Supreme Court, so that a final judgment in certiorari may be entered, which may be carried to the Court of Errors and Appeals if desired. So while my views in the matter as above expressed are to the effect that the conviction was right and legally sound, there may well be a reasonable ground for disagreement on that score. Accordingly, notwithstanding what has been said, a writ of certiorari will be allowed upon filing and approval of the bond required in such cases, and the rule for final judgment dismissing the writ may then be prepared and submitted for signature."
For the appellant, Kristeller Zucker.
For the respondents, Reynier J. Wortendyke, Jr.
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Parker in the Supreme Court.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, CASE, BODINE, DONGES, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, HAGUE, JJ. 12.
For reversal — HEHER, RAFFERTY, JJ. 2.