Meserol v. City of Long Branch ( 1935 )

The opinion of the court was delivered by

Heheb, J.

Prosecutors are employes of the New York Eskimo Pie Corporation, whose plant is located at Highland Park, in the county of Middlesex, in this state. This corporation is the manufacturer of a frozen ice cream product, known in the trade as “Eskimo Pie.” Each prosecutor was the driver of one of the corporation’s delivery automobiles on a designated route, extending through various municipalities of the state. Deliveries were made only to restaurants, billiard rooms, candy stores and like establishments. The apparent need of the retailer at the time is supplied from the contents of the delivery vehicle. The corporation is exclusively a wholesaler; sales are made only to retail merchants on the driver’s route. The consumer is not directly served by the corporation.

Prosecutors were each convicted upon a complaint charging the peddling and sale of the product referred to, “with an automobile without first obtaining a license therefor,” in violation of the provisions of an ordinance of the municipality entitled " 'An ordinance governing, regulating and fixing fees of mercantile licenses in the city of Long Branch, New Jersey, and regulating business licensed’ approved January 11th, 1927.” This ordinance is not regulatory; it imposes a tax for revenue.

On the presentation made, the facts of these cases bring them within the rationale of the decision of this court in the recent case of Huband v. Evans, 114 N. J. L. 586; 177 Atl. Rep. 871, and such being the case, the judgment of conviction should be brought up by certiorari.

The writs are therefore allowed.