11 N.J. Misc. 797 | N.J. | 1933
The writ brings up for review an ordinance of the city of Trenton providing for a license fee for certain food markets. The pertinent provisions of the ordinance, so far as this case is concerned, are as follows: “1. That no person, firm, partnership or corporation shall engage in the business of operating, conducting or maintaining a food market within any building or structure, within the limits of the city of
The ordinance in question was adopted pursuant to legislative grant. Pamph. L. 1917, pp. 321, 358, as amended Pamph. L. 1918, p. 958. The statute (Pamph. L. 1917, p. 359) authorized the municipality to impose a license fee for revenue. The legislature has such power and the municipality may act thereunder. Morgan v. Orange, 50 N. J. L. 389, 391.
There is always a presumption in favor of the validity of a duly adopted ordinance which includes a presumption in favor of its reasonableness. Wagman v. Trenton, 102 N. J. L. 492; 134 Atl. Rep. 115. The only real question in this case is whether the third section of the ordinance exempting certain markets has invalidated the whole.
We think not. The distinction is between food markets where other articles are sold and food markets selling food, flowers, seeds and plants exclusively. The only open air market in the city is owned by the municipality. The imposition of a license fee for revenue upon such a market would be an absurdity. It would seem that the municipality might, in the exercise of a sound discretion, impose a license fee for revenue upon a food market where a general merchandising business was also conducted, and at the same time not impose a license fee upon the operation of a food market confining its business to the sale of food, flowers, seeds and plants. The character of the business conducted in the different markets is entirely distinct. In the market affected
A municipality is not obliged to require a licensee fee from food markets and because it does exact a license fee from a food market where general merchandise is sold neither seems to us unreasonable, arbitrary or discriminatory, but on the contrary a wise use of the power granted. Under the ordinance those who conduct a market for the sale of food and merchandise are all subject to payment of the license fee. The proprietor of such a market may escape by closing out the merchandise. The holder of a license for the sale of beer might as well complain of an ordinance excluding from its operation the vendor of soft drinks. There is nothing unreasonable in treating different businesses in different ways, and that is all that the ordinance in question accomplishes.
The other grounds urged are without merit. The writ will be dismissed, with costs.