On appeal from the Supreme Court, whose opinion is reported in 132 N.J.L. 390.
For the appellants, Chandless, Weller & Kramer (Ralph W. Chandless, of counsel).
For the respondents Independent Warehouses, Inc., and James Thompson, Collins & Corbin.
For the respondents Pennsylvania Coal Company and Erie Railroad Company, Hobart, Minard & Cooper (Robert J. Bain, Duane E. Minard and G. Addison Hobart, of counsel).
The opinion of the court was delivered by
HEHER, J. The challenged ordinance provides for the licensing of "the business of the storage of personal property in a warehouse engaged in storing goods for hire," and "the place of premises" in which such business "is conducted or carried on," and levies, admittedly as a revenue measure, an "annual fee" to be computed "on the basis or rate of three-quarters of a cent for each square foot of the total ground area of the place and premises" devoted to the business; and it is the insistence of respondents that, since this bylaw lays the license fee upon the "place or premises" in which the storage business is carried on, "measured by land areas," it is, in effect, an additional tax "upon the property," and that, at all events, it is in substance a tax laid upon the stored coal "in lieu of personal property taxes" that would be leviable thereon were it not for the exemption granted by R.S. 54:4-3.20, and thus a negation of that legislative policy. If "perishable goods" are stored upon the licensed premises, the licensee is under a duty to comply with all health regulations "required by any federal, state or municipal authority." He is also enjoined to observe all police and fire regulations laid down by the local "police and fire authorities." And there is provision for inspection of the premises by the local police, fire and health authorities, and a requirement that the storage of "any inflammable or combustible matter" thereon shall be immediately reported to the governing body. Respondents' business is within the exemption category. Patison & Bowns, Inc., v. Township of Saddle River, 129 N.J.L. 135; affirmed, 130 Id. 177. We find these points to be devoid of substance.
The ordinance was enacted in the purported exercise of the power conferred by R.S. 40:52-1 (g) and 40:52-2; and these provisions and section 54:4-3.20, supra, are mutually exclusive. The former involves a license or privilege tax or excise levied for both revenue and regulation under the police power, while the latter section has reference to a property tax merely. The levies may coexist, if such be the legislative intention; and this is the case here. Section 54:4-3.20 plainly confines the exemption to property taxes, i.e., "personal
property stored in a warehouse" of one "engaged in the business of storing goods for hire."
License is a means of regulating and taxing privileges and occupations and the use and disposal of property. The exactions thereby made do not take the category of an ad valorem property tax. License and property taxes cover separate and distinct areas of the local taxing power; and they have radically different attributes. Jersey City v. Martin, 126 N.J.L. 353. See, also, Bowman v. Continental Oil Co., 256 U.S. 642; 41 S. Ct. 606; 65 L. Ed. 1139. The one is a tax upon the business of the warehouseman; the other is a direct tax upon the property of third persons stored in the warehouse. And the exercise of the latter power is confined by specific constitutional limitations which do not apply to the former. There is no suggestion of a legislative purpose to render the storage and warehouse business immune from the tax for revenue and regulation permissible under the cited licensing statute. The frame of the statutes is not consistent with the theory of an all-inclusive exemption from taxes of both classes. The contention contra necessarily proceeds upon the hypothesis that, prior to the adoption of the exemption statute, the ad valorem property tax was exclusive of all license taxes and excises; and this proposition is obviously untenable. The argument of competitive disadvantage is one to be addressed to the legislative forum.
But the exercise of the licensing power cannot exceed the bounds of reason. The law will not suffer confiscation and oppression under the guise of taxation. The quantum of the tax rests in sound discretion, guided by reason; and judicial intervention is justifiable only where there has been an abuse of the power. If the local legislative action is not clearly unreasonable or unduly oppressive or discriminatory, its policy is not a justiciable question. The Great Atlantic and Pacific Tea Co., Inc., v. Camden, 122 N.J.L. 47; Giant Tiger Corp. v. Camden, 122 Id. 240; American Grocery Co. v. Board of Commissioners of New Brunswick, 124 Id. 293; Gurland v. Kearney, 128 Id. 22.
And we are clear that the taxes thus levied do not constitute a direct and undue burden upon and therefore a regulation
of interstate commerce in contravention of article I, section VIII, cl. 3 of the ...