For the prosecutor, Morris H. Cohn and Samuel Rosenthal.
For the respondent, Paul W. Ewing.
Before Justices Bodine and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The sole question to be decided in this cause is whether an ordinance passed by the city of New Brunswick on April 12th, 1938, amending an ordinance passed on December 5th, 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 of 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, New Jersey. 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 concessionaires deal in food products. Each concessionaire pays prosecutor a rental ranging from five to twelve per cent. 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 prosecutor 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), and "fix the fee" for said business as a "revenue" measure cannot be gainsaid. R.S. 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, 11 N.J. Mis. R. 797, 799; 168 A. 309; affirmed, 113 N.J.L. ...