McGeehan, Colie and Eastwood. The opinion of the court was delivered by Eastwood, J.A.D.
The Atlantic City Transportation Company appeals from judgments of the Division of Tax Appeals of the Department of the Treasury of the State of New Jersey, affirming two excise tax assessments made by the Director of Taxation for the year 1947, levied under the provisions of paragraph 6, subparagraphs (a) and (b) of P.L. 1940, c. 5 (N.J.S.A. 54:31-50), in effect at that time, and defined by P.L. 1941, c. 21 (N.J.S.A. 54:31-46).
Succinctly stated, these appeals pose two legal questions which are set forth in appellant's brief:
(1) "Whether in the computation of the excise tax under Subparagraph (a), of Paragraph 6, of the Laws of 1940, Chapter 5, as amended (N.J.S.A. 54:31-50), the paved portion of the right of way owned by a street railway corporation, paralleled on either side by an accepted public street, upon which its electric trolley cars are being operated without the issuance of any municipal franchise therefor, and over which pedestrian and vehicular traffic by the public has been permitted by the owner but without interference with the operation of its trolley cars, and never formally dedicated to public use or accepted by the municipality, is properly included as a public place in determining the length of its lines located in public streets or other public places?"
(2) "Whether in the computation of the excise tax under Subparagraph (b), of Paragraph 6, of the Laws of 1940, Chapter 5, as amended (N.J.S.A. 54:31-50), the inclusion of the gross receipts of a street railway corporation from the business of the whole of its lines located in New Jersey, regardless of whether such lines are upon the public streets or other public places or upon private right of way, where only 4.69% of the lines are located in the public streets or other public places, but 98.28% of the gross receipts is computed to have been received from the lines upon private right of way, is unreasonable, unjust, illegal, discriminatory and confiscatory?"
On December 1, 1945, the Atlantic City Transportation Company purchased the properties and took over the operations, rights and franchises of the Central Passenger Railway Company, the Atlantic City and Shore Railroad Company, and the Atlantic City and Ocean City Railroad Company. It continued the operation of its acquired electric trolley lines, to wit: (1) from the Inlet in Atlantic City to Longport, New Jersey, and return, a distance of 8.31 miles, known as the "Atlantic Avenue Division" and (2) the "Occan City
Division" from Virginia Avenue and the Boardwalk in Atlantic City to Eighth Street and the Boardwalk in Ocean City, extending through Pleasantville, Northfield, Linwood and Somers Point, a distance of 16.412 miles.
The appellant is the owner in fee of a strip of ground 24 feet, 3 inches in width, comprising the track and roadbed in the "Atlantic Avenue Division," beginning at the Inlet at Atlantic City and extending through Atlantic City a distance of 3.043 miles. Prior to acquisition by appellant, this portion of appellant's property was assessed by Atlantic City to its predecessors in title as railroad property locally assessable. From Atlantic City, the "Atlantic Avenue Division" continues through Ventnor City, Margate City and the Borough of Longport for a distance of 5.26 miles.
The dedication of Atlantic Avenue as a public street on April 15, 1853, was subsequent to the acquisition of the 24 feet, 3 inch roadbed by the prior owners. At the time of dedication, Atlantic Avenue was laid out as a strip of land on either side of the right of way of the railroad. As the Cities of Atlantic City, Ventnor, Margate and Longport developed, Atlantic Avenue was extended along each side of the railroad property.
The area owned by the appellant in Atlantic City was paved for a distance of 3.043 miles by appellant's predecessor and pedestrians and vehicular traffic were permitted to use the same. Since 1926, by agreement, the transportation company maintains a part of this paving and the City maintains the balance thereof. The balance of the "Atlantic Avenue Division" remains unpaved except for the street intersections and is not accessible to vehicular traffic.
In the "Ocean City Division" the operation is upon the public street on Virginia Avenue of Atlantic City, over the public street of Mississippi Avenue in Atlantic City and the public street of Eighth Street in Ocean City for a total distance of 1.113 miles. The remaining 15.299 miles of that division are either owned in fee by appellant or leased from a private ...