For the prosecutor, Powell & Parker (Robert W. Criscuolo).
For the respondent, Daniel J. Dowling and Chaim H. Sandler.
For Atlantic City Hotel Association, John Lloyd, Jr., amicus curiae.
Before Justices Bodine, Heher and Wachenfeld.
The opinion of the court was delivered by
BODINE, J. The question in this case is the constitutionality of chapter 71, Pamph. L. 1947, R.S. 40:48-8.15, et seq. The act authorizes any city of the fourth class to impose a sales tax limited to certain classes of transactions. Cities of the fourth class have been defined for many years as consisting of the "cities of this state binding upon the Atlantic Ocean and being seaside or summer resorts." R.S. 40:167-2.
The Atlantic City ordinance adopted to activate the statute broadly classifies all services relating to sales of tobacco and alcohol and rooms and entertainment and other services usually rendered at summer resorts and imposes a tax thereon.
An earlier act of the legislature, having some similarities, was declared unconstitutional in Koons v. Atlantic City, 134 N.J.L. 329;
affirmed, 135 Id. 204. The basis of the decision in that case was that population was not a proper standard by which the legislature could differentiate between municipalities in permitting tax assessments.
The act before us does not rest upon population. It is applicable to all fourth class cities of which there are eleven. There could be perhaps no question about the validity of the act if it were applicable to all cities. The question, therefore, narrows itself as to whether the legislature can constitutionally distinguish between fourth class cities and other cities. We think it may.
The proofs show that the presence of summer visitors imposes an unusual burden upon municipal government since it must increase its facilities for police and fire protection. The beach front must at all hazards be saved and it must be cleaned and policed. ...