
    JOSEPH B. BRAY, POLICE JUSTICE, DEFENDANT IN CERTIORARI, v. JOSEPH DAMATO, PROSECUTOR.
    Submitted December 8, 1903
    Decided February 23, 1904.
    A city ordinance providing that no junkmen or others shall attach any bell to any horse or wagon, or use any noise-creating device for the purpose of attracting public attention or procuring business, is directed at street chapmen and hawkers, and the use of the reprobated noise to procure -business is of the essence of the offence. A complaint that the owner of a horse and wagon used a string of bells which caused a noise in a public street, does not charge the offence created by such ordinance, and a conviction based upon a plea of guilty to the charge made by such complaint cannot be sustained.
    On certiorari.
    
    Before Justices Garrison and Garretson.
    For the prosecutor, Thomas 8. Henry.
    
    For the defendant, Thomas A. Davis.
    
   The opinion of the court was delivered by

Garrison, J.

The prosecutor of this writ of certiorari was convicted of the violation of an ordinance of the city of Orange, which provides as follows:

“No junkman, or others shall attach any bell to any horse or wagon or cart, or use any noise-creating instrument or device, or cry out for the purpose of attracting public attention or for procuring business, trade or custom in any of the streets of said city, under penalty of ten dollars for each and every offence.”

The complaint was in these words:

“The complaint (case, page 3) charged the defendant that on March 5th, 1903, at the city of Orange, The said Joseph Damato, being the owner or one having charge of a certain wagon with horse attached to same, did use on said wagon noise-creating devices, to wit, a string of bells, which did ring and cause noise on a public highway, in violation, &c.’ ”

The record sent up by the police justice is as follows:

“Complaint being read, defendant pleaded guilty. Judgment-in favor of city of Orange for ten dollars, which was paid under protest.”

The conviction is not justified by the facts before us on this return. Assuming every fact alleged in the complaint to be true, which is the effect of the defendant’s plea thereto, the case stands upon the same footing as if the police justice had found such facts from competent testimony. The facts so found or confessed do not constitute the offence set out in the ordinance. The ordinance is directed at junkmen and others, that is, street chapmen or hawkers, and its -essential feature is that the reprobated noise shall be “for the purpose of attracting public attention or for procuring business.” If this is not so the ordinance applies to sleigh bells and to the gongs upon ambulances, fire and police patrols, automobiles, bicycles, or even to the signals given by surface railway cars. The case against the prosecutor is that made by the complaint, from which this essential feature of the ordinance is omitted as well as any charge that he is a junkman or other street dealer.

The conviction is set aside, with costs.  