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Great Atlantic and Pacific Tea Co. v. Board of Commissioners

Decided: February 4, 1939.

THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., PROSECUTOR; THE ACME MARKETS, INC., PROSECUTOR; GIANT TIGER CORPORATION OF CAMDEN, NEW JERSEY, PROSECUTOR; THE FOOD FAIR, INC., PROSECUTOR,
v.
THE BOARD OF COMMISSIONERS OF THE CITY OF CAMDEN, DEFENDANT



On certiorari.

For Great Atlantic and Pacific Tea Company, Inc., Milton, McNulty & Augelli, John Milton, Caruthers Ewing and Feldman & Kittelle.

For Acme Markets, Inc., Bleakly, Stockwell & Burling (Henry F. Stockwell), and Gilfillan, Gilpin & Brehman.

For Giant Tiger Corporation, Bleakly, Stockwell & Burling (Henry F. Stockwell) and Einhorn & Schachtel.

For Food Fair, Inc., Stein & Mandel and J. Emil Walscheid.

For the defendant, Firman Michel and William J. Shepp.

Before Brogan, Chief Justice, and Justices Bodine and Heher.

Bodine

BODINE, J. On April 14th, 1938, the Board of Commissioners of the city of Camden adopted an ordinance providing that no person, firm, or corporation should operate a self-service market without obtaining a license therefor. A self-service market was defined as follows: "Section 3. The term 'self-service market' as used herein is defined to mean: Any store or other structure wherein food, foodstuffs, groceries, canned goods, soaps, powders or other merchandise are sold at retail by a system or plan wherein the said foods, foodstuffs, groceries, canned goods, soaps, powders or other merchandise are displayed or exposed for sale on shelves, stands, platforms or counters or in bins or aisleways, in such a manner that purchasers are invited and permitted to make a personal selection of the food or merchandise sought to be purchased and to take the same into their possession, and are provided with baskets, carts or containers in which the merchandise may be placed, and carried or carted to a counter, place or exit point, where employes or agents of those conducting the business calculate the total cost of the foods, foodstuffs, groceries, canned goods, soaps, powders or merchandise, and wrap or place the merchandise in bags, cartons or containers and receive payment from the customer."

The license fee fixed was $10,000 per year, and upon a conviction for a violation of the ordinance it was provided that a fine of not more than $200 or imprisonment not exceeding ninety days, or both, could be imposed by the police judge.

At the public hearing before the adoption of the ordinance a letter was read as follows: "We are in favor of a license fee of $10,000 to be imposed on Self-Service Food Markets. We believe this will be a protection to the neighborhood stores and advantage to our economic system."

Many individuals and organizations appeared in favor of the adoption of the ordinance and letters of protest were read from several of the prosecutors. The ban of the ordinance, it is to be observed, is upon the use of a basket or other container, personal selection of articles desired, the calculation of the total price of the goods selected and payment therefor before exit.

The Great Atlantic and Pacific Tea Company, Inc., has thirty retail stores in Camden. Three of the stores situate at the following addresses: 1618 Mt. Ephriam avenue, 1125 Haddon avenue and 2412 Federal street, fall within the ban of the ordinance. The merchandise in these three stores, of the same quality as that offered for sale in the other Atlantic and Pacific stores, is offered at somewhat lower prices. The housewife finds a saving of four cents on twelve pounds of flour; one cent on a pound of coffee or sugar or soap, or butter. There are savings of importance in cereals, canned and fresh fruit, vegetables and other articles of daily use. The saving from a more economic operation of the store is passed on to the consumer. The system of merchandising however, is not new. For generations the residents of towns and cities in this country carried to, or had carried to, market the family market basket. It was filled with personal selections according to the needs and means of the household. Families with incomes below $2,000 are obliged to spend more than fifty per cent. of their income for food. Therefore, savings upon food are most welcome.

No Camden Atlantic and Pacific store does sufficient business to pay the license fee of $10,000. On the basis of the present profit rate it would require a business of $19,000 a week to meet the tax and none of the stores in the chain do any such amount of business.

The fixtures in the Mt. Ephriam avenue store are worth $1,200, the average inventory $4,000; the Haddon avenue fixtures $2,200, the average inventory $4,500; the Federal street store fixtures $5,000, the average inventory $5,500. All three stores were opened in 1938. Although there are baskets and self-service as to some of the items offered for sale, this is not so as to many other articles. In all of its Camden stores, the Atlantic and Pacific made gross sales of $519,242 from March 1st, 1938, to August 1st, 1938, a period of five months. Its net profit averages 1 per cent. of sales. If all the profits were diverted and the company still retained the baskets and the check-up before leaving in the three stores in question, it would still fail of meeting the tax by nearly ...


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