87 N.J.L. 399 | N.J. | 1915
The opinion of the court was delivered by
These writs, eleven in number, bring up the convictions of various proprietors of rolling chairs and stands,
With this preface we pass to the points made by prosecutors.
The first two are that this court has power to declare the fees illegal if they are unreasonably high, and that the fees in question are unreasonable and confiscatory. Asstiming the firsi proposition, we do not assent to the second. It may be true, and doubtless is true, that of late a number of the proprietors have made insignificant profits and even have lost money. But this does not demonstrate that the license fees are unreasonable; for the situation may he, and probably is, due rather to the falling prices, rising rentals of stands, and multiplication of chairs until they seriously interfered with pedestrians on the boardwalk. It is quite as fair to conclude that there are too many chairs for the business, and that when the number is adjusted to the actual demand, the fee trill be found reasonably proportioned to the nominal returns ata fair price for service.
The next attack is upon the imposition of license fees both on each chair and on the places where they are rented out. But this is expressly authorized both by the charter and by the License act, which as we have seen permit a fee for every vehicle and also for a place of business. It is unnecessary for this case to decide which act controls. The chairs can be obtained only at the stands; so these are manifestly the “places of business.” Similarly the ordinance prescribes one fee for a laundry, and another for each wagon; for a grocery store, and for each delivery wagon, and so on.
The next point is that these fees charged for each chair constitute a tax not on the privilege of doing business but on the amount of business done, and therefore are a property tax (and as claimed) obnoxious to the constitutional requirement for assessment by general laws according to uniform rules. The case of Johnson v. Asbury Park, 58 N. J. L. 604, is cited in connection with this point. An examination of that case will show that the license fee complained of was exacted from every delivery wagon, &c., used in the enumerated occupations; and as the ordinance was then upheld, the case is di
The next proposition, that the ordinance is in illegal restraint of trade because unreasonable, is disposed of by our finding that it is not unreasonable.
Again it is urged that the ordinance could not lawfully provide a penalty by fine, or imprisonment in default of payment thereof. Such a provision is expressly authorized by section 16 of the Charter act, which says that in all cases where the council have power to pass ordinances, they may prescribe penalties for violation by a fine not exceeding $200, and imprisonment not exceeding ninety clays in default of the payment of such fine. The License act authorizes simply fine or imprisonment. Neither mentions the imposition of costs; and the provisions of the ordinance, both as to imprisonment in default of payment of fine, and as to requiring payment of costs in case of conviction, are challenged. Section 9 of the ordinance does provide a fine of $10 upon conviction and in default of payment, imprisonment until the fine and costs shall be paid. But an examination of the records of conviction in the printed case shows that neither costs nor imprisonment ■were included or mentioned in the sentence; -and consequently no legal injury has been sustained by prosecutors or any of them in this regard. The provisions for alternative imprisonment and for the imposition of costs are separable, and if invalid, their invalidity will not avoid the entire ordinance. Doran v. Camden, 64 N. J. L, 666; Rosencrans v. Eatontown, 80 N. J. L. 227, 234, 235.
The last point is that under the Walsh act amendment of 1912, p. 643, the ordinance must have been recorded before it acquired vitality, and that the return does not show that it was ever recorded. This point, however, is not raised in the reasons filed, and is therefore not before us.
The convictions will be affirmed, with costs.