Borough of Belmar v. Barkalow

Supreme Court of New Jersey

Borough of Belmar v. Barkalow

52 A. 157, 67 N.J.L. 504, 38 Vroom 504, 1902 N.J. Sup. Ct. LEXIS 134

DecidedMay 27, 1902

StatusPublished

This text of 52 A. 157 (Borough of Belmar v. Barkalow) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Borough of Belmar v. Barkalow, 52 A. 157, 67 N.J.L. 504, 38 Vroom 504, 1902 N.J. Sup. Ct. LEXIS 134 (N.J. 1902).

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Opinion

[505]*505The opinion of the court was delivered by

Dixon, J.

On complaint that the defendant below had, on May 34th, 1901, driven a stage for the transportation of passengers within the borough of Belmar without having a license, contrary to a borough ordinance, he was convicted before the borough recorder, and on appeal to the Common Pleas of Monmouth county was again convicted, and was there sentenced to pay a fine of $75, and in default of payment, to be imprisoned in the county jail for twenty-nine days. His conviction is now here on certiorari for review.

The first ground of complaint stated in the brief of counsel is that the ordinance requires the owner or driver of a stage, used for the transportation of passengers, to obtain a license therefor, while the statute (Borough act, Pamph. L. 1897, p. 385, § 38) only authorizes the council “to license and regulate the use of stages” so used.

We think the ordinance is within the statute. The owner and driver of the stage are the persons chiefly concerned in the making of its use legitimate, and hence it was proper to require one of them to do so by obtaining the license for such use.

The second ground of complaint is that before the recorder the defendant, in default of payment of the fine, was sentenced to be imprisoned for thirty days, the defendant insisting that the ordinance authorized imprisonment only for “less than thirty days.” But such is not the tenor of the ordinance. It expressly authorizes a judgment of imprisonment for thirty days, giving the magistrate discretion to sentence for a less term. This is within the Borough act as amended in 1900. Pamph. L., p. 400, § 2.

Moreover, on the retrial in the Common Pleas, under sec-lion 11 of the Borough act .of 1897, the imprisonment was reduced to twenty-nine days. This being a new trial upon the merits (Vannoy v. Givens, 3 Zab. 301; Barclay v. Brabston, 20 Vroom 639), an error in the judgment of the recorder would be unimportant.

The next complaint is that the defendant was charged with violating an ordinance passed in 1898, but was sentenced [506]*506under one passed in 1901. In this there was nothing strange, for the ordinance of 1901 was an amendment of the penal section of that of 1898, and a copy of the ordinance as amended, with-the dates of both the original and the amendment, was annexed to the complaint and the summons. The defendant had thus full information of the basis of the charge.

The final grounds of complaint, that, by requiring drivers of stages to be licensed, while persons in other occupations need not be, the defendant, as driver of a stage, was denied the equal protection of the laws, and that the penalty imposed was a cruel and unusual punishment, are too frivolous to call for consideration.

The judgment should be affirmed, with costs.

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[505]*505The opinion of the court was delivered by

Dixon, J.

On complaint that the defendant below had, on May 34th, 1901, driven a stage for the transportation of passengers within the borough of Belmar without having a license, contrary to a borough ordinance, he was convicted before the borough recorder, and on appeal to the Common Pleas of Monmouth county was again convicted, and was there sentenced to pay a fine of $75, and in default of payment, to be imprisoned in the county jail for twenty-nine days. His conviction is now here on certiorari for review.

The first ground of complaint stated in the brief of counsel is that the ordinance requires the owner or driver of a stage, used for the transportation of passengers, to obtain a license therefor, while the statute (Borough act, Pamph. L. 1897, p. 385, § 38) only authorizes the council “to license and regulate the use of stages” so used.

We think the ordinance is within the statute. The owner and driver of the stage are the persons chiefly concerned in the making of its use legitimate, and hence it was proper to require one of them to do so by obtaining the license for such use.

The second ground of complaint is that before the recorder the defendant, in default of payment of the fine, was sentenced to be imprisoned for thirty days, the defendant insisting that the ordinance authorized imprisonment only for “less than thirty days.” But such is not the tenor of the ordinance. It expressly authorizes a judgment of imprisonment for thirty days, giving the magistrate discretion to sentence for a less term. This is within the Borough act as amended in 1900. Pamph. L., p. 400, § 2.

Moreover, on the retrial in the Common Pleas, under sec-lion 11 of the Borough act .of 1897, the imprisonment was reduced to twenty-nine days. This being a new trial upon the merits (Vannoy v. Givens, 3 Zab. 301; Barclay v. Brabston, 20 Vroom 639), an error in the judgment of the recorder would be unimportant.

The next complaint is that the defendant was charged with violating an ordinance passed in 1898, but was sentenced [506]*506under one passed in 1901. In this there was nothing strange, for the ordinance of 1901 was an amendment of the penal section of that of 1898, and a copy of the ordinance as amended, with-the dates of both the original and the amendment, was annexed to the complaint and the summons. The defendant had thus full information of the basis of the charge.

The final grounds of complaint, that, by requiring drivers of stages to be licensed, while persons in other occupations need not be, the defendant, as driver of a stage, was denied the equal protection of the laws, and that the penalty imposed was a cruel and unusual punishment, are too frivolous to call for consideration.

The judgment should be affirmed, with costs.

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Bluebook (online)

52 A. 157, 67 N.J.L. 504, 38 Vroom 504, 1902 N.J. Sup. Ct. LEXIS 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borough-of-belmar-v-barkalow-nj-1902.