Am. Grocery Co. v. Bd. of Comm'rs of City of New Brunswick

• Decision Date: 15 March 1940
• Docket Number: No. 243.,243.
• Citation: 124 N.J.L. 293,11 A.2d 599
• Parties: AMERICAN GROCERY CO. v. BOARD OF COMMISSIONERS OF CITY OF NEW BRUNSWICK.
• Court: New Jersey Supreme Court

11 A.2d 599

124 N.J.L. 293

AMERICAN GROCERY CO.

v. BOARD OF COMMISSIONERS OF CITY OF NEW BRUNSWICK.

No. 243.

Supreme Court of New Jersey.

March 15, 1940.

Certiorari proceeding by the American Grocery Company against the Board of Commissioners of the City of New Brunswick to test the validity of an ordinance of the city of New Brunswick.

Writ dismissed.

Argued January term, 1940, before BODINE and PERSKIE, JJ.

Morris H. Cohn and Samuel Rosenthal, both of Newark, for prosecutor.

Paul W. Ewing, of New Brunswick, for respondent.

PERSKIE, Justice.

The sole question to be decided in this cause is whether an ordinance passed by the City of New Brunswick on April 12, 1938, amending an ordinance passed on December 5, 1933, is valid? Our answer is in the affirmative.

Both the original and the amending ordinance are before us. The original ordinance prohibits any "person, firm, partnership or corporation" from engaging "in the business of operating, conducting or maintaining a food market within any building or structure within the limits of the City New Brunswick, and renting or leasing more than four concessions in any such building or structure to persons, natural or artificial to carry on various kinds and types of businesses therein without first having obtained a license therefor." A license fee is imposed under this ordinance, allegedly for revenue purposes, of $200 a year for each concession. The ordinance, of course, contains other provisions, but these are not here involved.

The amending ordinance, so far as is here pertinent, is identical with the original ordinance, except that it reduces the renting or leasing of more than "four concessions" to "more than two concessions" and raises the license fee from $200 to $500 for each concession. This ordinance likewise contains a provision that the license fee is "for the purpose of revenue." Notwithstanding the fact that both ordinances are before us, it is the amending ordinance that is here involved.

Prosecutor is a corporation of this state operating a food market within the purview of the challenged ordinance. It commenced business the latter part of November, 1937, at New Brunswick, N. J. It leased the entire building. It operates the grocery department which occupies about one-half of the building. In 1938, it sublet the remaining space of that building to eight tenants and in 1939 to seven tenants. Each tenant may be said to be a concessionaire. With the exception of the concessionaires who deal in dry goods and shoe repairing, the remaining con cessionaires deal in food products. Each concessionaire pays prosecutor a rental ranging from 5 to 12% of his gross receipts, and each additionally pays the license fee imposed under the ordinance to prosecutor which, in the first instance, pays the license fee for all leased concessions to the City of New Brunswick.

Pursuant to the ordinance to which prossecutor only is presently subject, it became liable and did pay, under protest, the license fee imposed.

That the City of New Brunswick may "license" the type of business here licensed (R.S. 40:52-1, N. J.S.A. 40:52-1), and "fix the fee" for said business as a "revenue" measure cannot be gainsaid. R. S. 40:52-2, N. J.S.A. 40:52-2. Generally stated, the exaction of a license fee for revenue purposes from those who operate a "food market where general merchandise is sold is not unreasonable, arbitrary or discriminatory." Compare Giant Tiger Corp. v. Board of Commissioners of Trenton, 168 A. 309, 11 N. J. Misc. 797, 799, affirmed 113 N. J. L. 34, 172 A. 565, which involved four concessions and a fee of $100 for each concession, and Giant Tiger Corp., Camden, N. J. v. Board of Com'rs of Camden, 122 N. J. L. 240, 248, 249, 4 A.2d 775, which involved four concessions and a fee of $200 for each concession, and Hoffman v. Mayor, &c. South River, 180 A. 394, 13 N.J.Misc. 618, which also involved four concessions and a fee of $200 for each concession, with certain exceptions not here involved.

But as we have seen, the amended ordinance in the case at bar goes further than any of the ordinances in the cited cases which have heretofore received our consideration and determination. It draws the line at the renting or leasing of more than two concessions and increases the fee of each concession from $200 to $500. With these differences in mind, let us. consider the attack which is here made both, upon the line so drawn and the increase of the fee.

1. Is the drawing of the line at "more than two concessions" unreasonable?

It is altogether settled by the South River, Trenton and Camden cases, ubi supra, that a separate classification of food markets where general merchandise is sold is proper. It is equally well settled by these cases that the drawing of a line at the number of concessions is purely a legislative function. In light of these settled principles if it is reasonable for the municipal legislative body to draw the line at more than "four concessions" which means five or more, nothing is made to appear that would justify us in saying that the line drawn at more than two concessions, which means three or more, is unreasonable. Every reason in support of the reasonableness as to the line drawn in the former class applies with equal force...