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Neeld v. Automotive Products Credit Association

Decided: March 24, 1952.

AARON K. NEELD, DEPUTY DIRECTOR DIVISION OF TAXATION, DEPARTMENT OF THE TREASURY OF NEW JERSEY, PLAINTIFF,
v.
AUTOMOTIVE PRODUCTS CREDIT ASSOCIATION, A NEW JERSEY CORPORATION, T/A A.P.C.A. SERVICE STATION, DEFENDANT



Fulop, J.d.c.

Fulop

The Deputy Director of the Division of Taxation, Department of the Treasury of the State of New Jersey, brings this action to recover a penalty under the provisions of R.S. 56:6-2(b) and R.S. 56:6-3. It charges that defendant has, during a designated period, sold motor fuel at a price below the net cost to it plus all selling expenses, in violation of the statute.

The facts are stipulated. They include an audit report of defendant's operation for the period beginning at 3 P.M. on June 25, 1951, and ending at 7 A.M. on July 2, 1951. The report shows that it took the auditors three full days, July 2, 1951 to July 5, 1951, to make the audit for the brief period involved. It reveals that defendant sells two kinds of gasoline and oil. Every item was sold for more than the purchase price thereof. However, the gross profit realized on the gasoline was less than the allocated share of the cost of operating the business.

R.S. 56:6-2(b) provides.

"(b) No retail dealer shall sell motor fuel at a price which is below the net cost of such motor fuel to the retail dealer plus all selling expenses."

If the allocation of the cost of operating the business is correct, then the defendant violated the statute by selling motor fuel below the net cost plus all selling expenses.

These are the only facts before me.

Defendant asserts two defenses:

1. That R.S. 56:6-2(b) is unconstitutional because it unlawfully interferes with the right of defendant to engage in a lawful business.

2. That the statute is unconstitutional because it is too indefinite to be enforceable.

AS TO THE PROPRIETY OF PASSING ON CONSTITUTIONAL QUESTIONS.

Neither party has raised any question as to the propriety of passing upon the constitutionality of a statute in a district court, which is an ...


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