For the prosecutor, Charles Hershenstein.
For the respondent, David T. Wilentz and Arthur A. Salvatore.
Before Justices Parker, Bodine and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The single question requiring decision in this cause is whether subdivision (c) under section 201, chapter 62, Pamph. L. 1939 (R.S. 39:12-2), deprives prosecutor of its property without due process of law in violation of the Fourteenth Amendment to our Federal Constitution, or whether it is justified as a valid exercise of the police power of the state.
The return to the writ discloses that, in pursuance of section 401, article IV, chapter 163, Pamph. L. 1938 (R.S. 39:12-4), the State Tax Commissioner filed a complaint, in a summary proceeding, in the First Criminal Court of Jersey City alleging that, on July 20th, 1939, prosecutor violated subdivision (c) of section 201, article II, chapter 62, Pamph. L. 1939 (R.S. 39:12-2), in that, as a retail dealer in the sale of motor fuels, it "did unlawfully and illegally use and display" on its premises in Jersey City, "a sign relating to the price" at which it sold its motor fuel. In answer to the complaint, prosecutor appeared through its counsel; he admitted the truth of the facts alleged in the complaint and waived all defects, if any, in said complaint. Additionally, Exhibits P-2 and P-3 were admitted. These exhibits are photographs of prosecutor's stations and show the allegedly objectionable signs.
The trial judge, thereupon, entered judgment of $50.00 (minimum prescribed penalty, section 301, chapter 62, Pamph. L. 1939; R.S. 39:12-3), in favor of plaintiff and against prosecutor. The prosecutor paid the penalty, under protest. Aggrieved at the penalty thus imposed upon it, and desiring to test the constitutionality of the act under which it was imposed, prosecutor made application to the chief justice for a writ of certiorari, which was allowed.
For a better understanding of the claims made for the respective parties, a brief resume of the legislation involved will be helpful.
Chapter 62, Pamph. L. 1939, was approved May 23d, 1939; it amended chapter 163, Pamph. L. 1938 ("An act to regulate the sale of motor fuels, and providing penalties for violations"),
approved May 12th, 1938. A reading of both acts discloses, save as to subdivisions (c) and (d), section 201, article II, and some changes in sections 201 (a) and 301 in the act of 1939, that they are practically the same word for word.
As amended the act of 1939 provides substantially as follows:
201 (a). Every retail dealer shall publicly display and maintain on each pump (or other dispensing equipment) a sign, in the manner regulated by the State Tax Commissioner, stating the price per gallon at which motor fuel is sold; all taxes shall be included in the price shown on the sign, but the sign shall contain a statement of the amount of taxes included in said price, or if it is not so stated, said sign shall state that taxes are included in said price. A retail dealer shall not sell at any other price ...