[110 NJSuper Page 55] Plaintiffs assert that Chapter 200 of the Laws of 1969 is unconstitutional. It provides for a "service charge" to be paid for each passenger who departs from a publicly-supported airport located within a municipality or municipalities having a population of 100,000 or more. Newark Airport, consisting of approximately 2,300 acres located partly in the City of Newark and partly in the City of Elizabeth, is the only airport in New Jersey to which
the statute now applies. The specified "service" charge is $1 for each passenger bound by plane for a destination within the continental United States, $2 for each passenger leaving for a point outside of the United States, and 50 cents for a passenger leaving by helicopter. These charges are imposed upon the air lines, but paragraph 3 of chapter 200 reads as follows:
Nothing herein shall prevent a passenger air carrier from collecting, directly or indirectly, the service fee payable with respect to each paying passenger from such passenger.
Chapter 200 also provides for monthly returns and payments to the State's Director of the Division of Taxation, followed by distribution of the moneys collected to the municipality or municipalities in which the airport lies. Under the statutory formula 80% of revenues produced by the "service fees" at Newark Airport will be distributed to the City of Newark and 20% to the City of Elizabeth.
Plaintiffs all operate passenger planes in and out of Newark Airport under certificates of authority granted by the Civil Aeronautics Board pursuant to 49 U.S.C.A. § 1371. All of their passenger flights out of Newark go directly to destinations beyond the limits of New Jersey and are thus in interstate or foreign commerce.
The Port of New York Authority, a public body created under an interstate compact between New York and New Jersey, operates Newark Airport. Newark and Elizabeth do not participate in the management nor do they contribute in any direct way to the cost of operations. The portion of the airport located in Newark is largely, if not entirely, owned in fee by the city and leased to the Port of New York Authority under a lease which will end with the year 2016. Under the terms of the lease -- which covers the seaport on Newark Bay as well as the Newark portion of the airport -- the Port Authority pays a substantial rental. The part of the airport in Elizabeth is owned outright by the Authority.
In 1969 approximately 7,130,000 passengers used Newark Airport. About half of these were persons who left by airplanes and helicopters. For 1968 the total of passengers was 6,716,584, and for future years substantial increases above the 1969 figure are predicted.
If the charges prescribed by chapter 200 are valid, there will be from that source several million dollars a year available for distribution to the cities.
When first passed and presented to the Governor the act in question was vetoed, unconstitutionality being stated as grounds for the veto. The act then passed a second time on December 1, 1969 and became chapter 200 of the Laws of 1969 without the Governor's signature.
In support of constitutionality it is argued for the cities that the statute provides for service charges and that municipal services are in fact supplied which benefit the airport, plaintiffs and, at least indirectly, departing travellers who use the airport; also that the charges are reasonable and proper for the benefits received. However, the only services pointed to are conventional ones, such as police and fire protection, a municipal court system to handle complaints arising at the airport, garbage disposal facilities and the like; and even the burden of the two cities in supplying these services is made relatively light by the fact that the Port Authority has its police department and fire fighting force, and rubbish is collected to a considerable extent by individual contractors.
Counsel for the cities also have argued that chapter 200 imposes a valid tax on the business of plaintiffs and that the gauge of the tax -- the number of passengers carried out of New Jersey by each airline -- is reasonable and proper. They have cited many cases dealing with the power of a State to tax interstate businesses, or property used in interstate commerce. As an example of the authorities from which it is ...