Pevey v. Greenberg , 101 N.J.L. 435 ( 1925 )

Greenberg was convicted before the recorder of Dover of the offense of violating an ordinance of that town by conducting a roadside stand for the sale of refreshments without a license so to do as required by the ordinance. He claimed exemption from the license requirement because of the act of 1904 (Pamph. L., p. 273; Comp. Stat., p. 3937), which provides that "every honorably discharged soldier, sailor or marine of the military or naval service of the United States, who is a resident of this state, shall have the right to hawk, peddle and vend any goods, wares or merchandise, or solicit trade within this state by procuring" a license from the county clerk, and lays down the method of obtaining such license. It sufficiently appeared that Greenberg was a resident, was an honorably discharged soldier, and had the license required by the act. The defense was overruled and a conviction had. On summary review before the Common Pleas judge, under one of the several acts in that behalf, probably that of 1908 (Comp. Stat., p. 1868, pl. 145 b), the conviction was reversed and set aside on the ground that Greenberg was exempt from the operation of the ordinance in conducting the place in question. The proceeding is now before me on certiorari. Newark v. Kazinski, 86 N.J.L. 59; Summit v. Iarusso, 87 Id. 403; Edwards v. Petry, 90 Id. 670.

The sole question involved is the construction of the statute of 1904, quoted above. Whether it may have been repealed or limited, expressly or by implication, by one or more of the various acts relating to municipalities, licenses, c., passed since that date, is a point not discussed. Assuming the act of 1904 to be in full force, I am clearly of opinion that the county clerk's license, issued pursuant thereto, confers no right to conduct a fixed place of refreshment — a restaurant or soft drink and tobacco stand, or the like — as against the licensive power conferred on the municipality. Stress is laid on the word "vend," and it is argued that as the word means "sell" it may be detached from its context, and, thus, a veteran holding the county clerk's license may sell any lawful wares in any manner. The argument proves too much, as it would exempt from local license every honorably discharged soldier,c., who chose to open any kind of store in, say, Atlantic City or Asbury Park. Johnson v. Asbury Park, 60 N.J.L. 427;Atlantic City v. Hemsley, 76 Id. 354; Shill Rolling ChairCo. v. Atlantic City, 87 Id. 399, 400. In my view, the words "hawk, peddle and vend" are intended to operate conjunctively, as indicated by the word "and" in the clause. The language is doubtless taken from section 5 of the old "act relating to hawkers, peddlers and petty chapmen" (Comp. Stat., p. 3933), which says that "if any person shall be found hawking, peddling or traveling from house to house, or place to place, to vend * * * without first having obtained a license," c. The phraseology goes back to 1830. Elm. Dig. 390. I have no form available of the license issued by the Common Pleas under the Peddlers act, but it is not unlikely that it authorizes the holder "to hawk, peddle and vend" in the very language of the 1904 act.

An application of the maxim noscitur a socies leads to the same result, which is that the vending contemplated by the act of 1904 is that of a hawker and peddler, and not the sale of refreshments or merchandise at a fixed stand.

These views lead to the conclusion that no error in the original conviction has been shown. The order of the Common Pleas judge is therefore set aside and the original conviction affirmed.