State v. Augustine, 1.

• Decision Date: 17 April 1937
• Docket Number: No. 1.,1.
• Citation: 191 A. 805
• Parties: STATE v. AUGUSTINE.
• Court: New Jersey Supreme Court

191 A. 805

STATE

v. AUGUSTINE.

No. 1.

Supreme Court of New Jersey.

April 17, 1937.

Joseph Augustine was convicted of violating provisions of the Motor Fuel Tax Act, and he brings error.

Affirmed.

Argued October term, 1936, before BROGAN, C. J., and CASE and PERSKIE, JJ.

Erwin E. Marshall, of Trenton, prosecutor of the pleas of Mercer county (Augustine V. Gribbin, of Trenton, of counsel), for defendant in error. Alexander Budson, of Trenton (Herman H. Levy, of New York City, and Henry M. Hartmann, of Trenton, of counsel), for plaintiff in error. David T. Wilentz, Atty. Gen., Harry A. Walsh, Asst. Atty. Gen., for the State as amicus curiæ.

BROGAN, Chief Justice.

This writ of error brings up for review the conviction of the plaintiff in error, Joseph Augustine, on two indictments, charging violations of the Motor Fuel Tax Act, chapter 319, P.L.1935 (N.J.St.Annual 1935, § 208B—101 et seq.). The first indictment charged Augustine with unlawfully failing to make a report to the state tax commissioner on or before the last business day of November, 1935, of the number of gallons of motor fuel sold and used in the state during the month of October, 1935, by the plaintiff in error as a distributor, and the second indictment charged him with unlawfully failing to pay the amount of tax due on the motor fuel sold and used by him as a distributor during the same month.

The case is before us on a strict writ of error and of the various assignments of error filed three points are presented in support of a reversal of the judgment below— (1) that the indictments are invalid; (2) that the two violations of the statute charged constitute but a single offense; (3) that the provisions of chapter 287 of the Laws of 1935 (N.J.St.Annual 1935, §§ 53—11a, 53—11b), under which the jury was impaneled, are unconstitutional and void.

Under the first point, three propositions are advanced which will be considered in the order in which they are presented.

It is first argued that so much of section 103 of the statute, supra (N.J.Annual 1935, § 208B—103), defining distributor, in so far as importers are concerned, represents an excess of legislative power. The argument is that the section does violence to the Fourteenth Amendment of the Federal Constitution and the commerce clause thereof.

A distributor is defined in the statute as follows:

"'Distributor' shall mean and include every person, firm, association or corporation, wherever resident or located, who imports or causes to be imported into this State fuels as herein defined, for use, distribution or sale after the same shall reach this State, whether in the original packages or containers in which it is imported or otherwise; and also any person, firm, association or corporation who produces, refines, manufactures, blends or compounds, or causes to be produced, refined, manufactured, blended or compounded fuels as herein defined and sells, uses or distributes the same within this State." Section 103 (N.J. St.Annual 1935, § 208B—103).

If we understand the argument of the plaintiff in error, it means this and only this: Within the definition of the term "distributor" there is included any person, firm, or corporation who imports motor fuel into this state for use, distribution, or sale after the same shall reach the state, and a second class also, namely, those who manufacture or cause to be produced motor fuels, who sell, use, or distribute the same within the state. The argument is that a duty of making a report is imposed by the statute upon those of the first class, namely, importers, who make sale of the motor fuel even though the same is sold to a purchaser outside of the state, while that same duty of making a report and paying tax is imposed upon a distributor who manufactures, refines, etc., such fuel in the state only when such distributor sells, uses, or distributes the same within the state. An examination of the entire statute dispels any idea as to inequality or discrimination between these two classes of distributors.

Turning to article 3 of the statute, sections 301 to 313, inclusive (N.J.St.Annual 1935, §§ 208B—301 to 208B—313), we find set out, with great particularity, the requirements of the state as to all persons who engage in the motor fuel business as distributors, and this includes importers as well as manufacturers. Such persons must procure a license and post a bond, the amount to be fixed by proper authority; they are required to keep records of all fuel sold or used and it is necessary to make a monthly inventory and on or before the last business day of each month (section 311 [N.J.St.Annual 1935, § 208B—311]) distributors are required to render a report to the state tax commissioner, "stating the number of gallons of fuel sold or used in this State by him [the distributor] during the preceding calendar month. * * * A tax of three cents per gallon on each gallon so reported shall be paid by each distributor, such payment to accompany the filing of said report." The next section of the statute (312 [N.J.St.Annual 1935, § 208B—312]) seems to dispose of the argument of the plaintiff in error charging inequality between the two classes of distributors. It reads as follows: "Neither this act nor any of the provisions hereof shall apply to fuels when exported or sold for exportation from the State of New Jersey to any other State or country, but every distributor shall be required to report such exports and sales to the commissioner." It is readily perceived therefore that this provision exempts the distributor, whether he be classed as an importer or as a manufacturer, from paying a tax upon motor fuels exported out of the state of New Jersey. It relieves neither class of distributor, however, from reporting such export sale. The power to tax, which is admitted, necessarily includes this essential power of regulation. If we were to analyze the definition of the term "distributor" (section 103), separate and apart from the remainder of the statute, there might be ground to support an argument for discrimination, but when read with the balance of the statute, as indeed it must be read, no real discrimination exists. Steel v. Board of Chosen Freeholders of Passaic County, 89 N.J.Law, 609, 99 A. 318; Pondelick v. County of Passaic et al., 111 N.J.Law, 187, 168 A. 146. This first point is without merit.

The second...