Giant Tiger Corp. of Camden v. Bd. of Com'rs of City of Camden

• Decision Date: 11 March 1939
• Docket Number: No. 213.,213.
• Citation: 122 N.J.L. 240,4 A.2d 775
• Parties: GIANT TIGER CORPORATION OF CAMDEN v. BOARD OF COM'RS OF CITY OF CAMDEN.
• Court: New Jersey Supreme Court

4 A.2d 775

122 N.J.L. 240

GIANT TIGER CORPORATION OF CAMDEN

v. BOARD OF COM'RS OF CITY OF CAMDEN.

No. 213.

Supreme Court of New Jersey.

March 11, 1939.

Syllabus by the Court.

Ordinance imposing license fee for revenue, pursuant to statutory authority, upon the proprietor of any food market renting or leasing more than four concessions to other parties to carry on various kinds or types of business therein, held, not shown to be invalid as either unreasonable, discriminatory, confiscatory, special in its application, or contrary to the Fourteenth Amendment of the Federal Constitution, U.S.C.A.

Certiorari proceeding by the Giant Tiger Corporation of Camden, N. J, against the Board of Commissioners of the City of Camden to have a licensing ordinance of the City of Camden declared void.

Writ of certiorari dismissed.

Argued January term, 1939, before TRENCHARD, PARKER, and PERSKIE, JJ.

Bleakly, Stockwell & Burling, of Camden (Henry F. Stockwell, of Camden, of counsel), for prosecutor.

Firmin Michel, of Camden (William J. Shepp, of Camden, of counsel), for defendant.

PARKER, Justice.

This writ of certiorari brings up a licensing ordinance of the City of Camden. The attack seems to be upon the ordinance as a whole and not upon any conviction thereunder. Some twelve reasons are advanced, but the argument in general and the brief do not seem to treat of any particular reason separate from the others. Generally speaking, the claim is that the ordinance is not within the power of the municipal body, that it is unreasonable, discriminatory, confiscatory, special in its application, and that it violates the equal protection clause of the Fourteenth Amendment of the National Constitution. U.S.C.A.

The ordinance under consideration is modeled closely after an ordinance of the City of Trenton in pari materia, which was considered by this court in Giant Tiger Corporation et al. v. Board of Commissioners of Trenton, 168 A. 309, 11 N.J. Misc. 797, affirmed on opinion below, 113 N.J.L. 34, 172 A. 565. A somewhat similar case is Hoffman v. Borough of South River, 180 A. 394, 13 N.J.Misc. 618. In that also the attack was on the ordinance and a writ of certiorari was denied. Although it is not definitely claimed that the Camden ordinance differs in any essential particular from the Trenton ordinance, it may be advisable to exhibit the two in parallel columns for purposes of comparison, noting that it has been necessary to make a slight change in the order of sections in the Camden ordinance for the purpose of parallelism. The two ordinances follow.

Trenton. Sec. 1. "That no person, firm, partnership or corporation shall engage in the business of operating, conducting or maintaining a food market within any building or structure within the limits of the City of Trenton, 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 having first obtained a license therefor. (Section 1 continued) "The license fee shall be the sum of One Hundred ($100.00) Dollars per year for each and every concession and/or department rented, leased or operated in any such building or structure, such fee being imposed for the purpose of revenue."

Sec. 2. "That applications for licenses shall be made to the City Clerk, from time to time, on blank forms to be supplied by him, as concessions and/or departments' are rented, leased or operated by the party operating, conducting or maintaining such market." Sec. 3. "That this ordinance shall be held to apply to any market conducted solely for the sale of food products, cut flowers, potted plants, plants, shrubs, trees and seeds, nor to any open-air market." Sec. 4. "That any person, firm, partnership or corporation operating, conducting or maintaining any such market, who shall rent or lease any such concession and/or department in violation of any of the provisions of this ordinance shall forfeit and pay a penalty not to exceed the sum of Two Hundred ($200.00) Dollars, and each day such violation shall be continued shall be deemed and taken to be a separate and distinct offense."

Camden.

Sec. 1. "No person, firm or corporation shall operate, conduct or maintain, or engage in the business of operating, conducting or maintaining a food market within any building or structure within the limits of the City of Camden, New Jersey, and renting or leasing more than four concessions in any such building or structure, to persons, natural or artificial, to carry on various kinds or types of businesses therein without having first obtained a license therefor." Sec. 4. "The license fee shall be the sum of $200.00 per year for each and every concession or department, rented, leased or operated in any such building or structure. The license fee imposed by this ordinance is for the purpose of revenue." Sec. 2. "The City Clerk is hereby authorized to issue any such license upon the payment by the applicant of the proper fee therefor, as hereinafter provided." Sec. 3. "Every such license shall remain in force and be valid only for the term of one year from the date of issuance of said license and shall apply to the person or persons to whom granted and shall not transferable." Sec. 5. "This ordinance shall not be held to apply to any Municipal Market"

Sec. 7. "Bach and every person, firm or corporation violating any of the provisions of this ordinance shall, upon conviction, be fined not more than $200.00 or be imprisoned in the place provided by the municipality for the detention of prisoners for not more than ninety days or both in the discretion of the Police Judge."

Sec. 6. "Each day's operation, conduction or maintenance, or engagement in the business of operating, conduction or maintaining an unlicensed food market, shall constitute a separate violation of this ordinance."

The decision in the Trenton case would seem at first blush to be dispositive of the present writ; and, indeed, this is the sole argument made for the respondent. For the prosecutor, however, it is argued that the attack on the Trenton ordinance failed to present several reasons advanced in the present case, and because of which we are asked to set the Camden ordinance aside. The reasons are not discussed seriatim in the brief, nor, as we recollect, were they so discussed at the argument, and the brief may be fairly described as a running commentary divided into points which are numbered, but no particular proposition stands at the head of any of the numbers. It is therefore necessary to deal with the case much in the same manner.

The prosecutor is clearly and admittedly within the purview of the ordinance. It operates a food market within a building in Camden and rents or leases more than four concessions therein to natural or artificial persons to carry on various kinds or types of businesses therein. The case shows that there are twenty-seven departments in all, the principal one of which is the grocery department which, according to the testimony of the president of the corporation, has gross receipts of about $20,000 a week or, as counsel put it, a million dollars a year; that the gross receipts of the twenty-six "concessions" are approximately $30,000 a month or an average of $1,154 a month or nearly $14,000 a year. Some concessions are larger and some smaller, the smallest being 10 feet by 7 feet (jewelry) and the restaurant 18 feet by 40 feet. As we read the ordinance, the prosecutor is liable for the license fee of each and every concession. The various concessions were described by the witness Bell: "A, Candy, cigars, cookies * * *

"Q. Are those separate departments? A. Yes, sir.

"Q. Or concessions? A. Yes. Dairy, delicatessen, dresses, drugs, sea-food, florist, fruits and vegetables, hosiery, house furnishings, ice-cream, jewelry, old gold, liquor, meats, millinery, paints, radio, restaurant, shoe repair, auto accessories, toys, yardgoods, newspapers."

The concessions are under the direct supervision of the prosecutor, which maintains the building and does all the advertising for the entire store, and supplies light and heat and public liability insurance, all of which is covered by the rents paid by the concessionaires. We do not observe that the rents paid by these concessionaires, either individually or as a total, are stated in the evidence, although it appears that some pay a stipulated rent and others pay a percentage of gross receipts. Each concessionaire pays his own personal tax.

It is claimed for the prosecutor that the decision in the Trenton case, 168 A. 309, at page 310, 11 N.J.Misc. 797, at page 798, dealt merely with the "distinction * * * between food markets where other articles are sold and food markets selling food, flowers, seeds, and plants exclusively." It is true that that point was considered, but it was not the only point, for it was said on page 310 of 168 A, on page 799 of 11 N.J.Misc, "A municipality is not obliged to require a license fee from food markets, and, because it does exact a license fee from a food market where general...