*1 SYSTEM, HERTZ WASHMOBILE A OF CORPORATION NEW PLAINTIFF-RESPONDENT, JERSEY, THE VILLAGE ORANGE, OF A SOUTH MUNICIPAL CORPORATION OF JERSEY, NEW DEFENDANT-APPELLANT. Argued September 16, 9 and 1957 Decided October 1957. Mr. Ward J. Herbert the cause for argued the defendant- McCarter, appellant «£ (Messrs. Studer, English attorneys). M. Joseph Mr. Jacobs the cause argued for the plaintiff- Jacobs, respondent & (Messrs. attorneys). Siofer of the court delivered opinion enacted Orange J. The *2 Tillage South Burling, of Mer- Certain prohibit ordinance “to on Sale Sunday and for Sale chandise and the on of Business Such Carrying 1 the enactment for Other of Certain Section Purposes.” items of for a number of or prohibits selling offering 2 the operation merchandise on Section Sunday. prohibits of Section of business on for the Sunday selling any dry laundering, articles as well engaged cleaning, (cid:127) automobiles, automo- of washing lubricating tailoring, biles, to emergency repairs automobiles repairing (except disabled Section vehicles), operation beauty shops. con- 3 directs that not to be specific prohibitions are meals, sale of strued to prohibit preparation drugs, food, tobacco, ice cream and confections, baked goods, and the de- non-alcoholic alcoholic newspapers, beverages, nor of flowers livery purchased prior operation restaurants, luncheonettes, cream parlors, ice gasoline stations, stationery stores and news stands.
Plaintiff is in the business of wash commercially engaged automobiles. The prohibits ordinance ing expressly and legis feeling aggrieved an adjudication lative of its plaintiff sought validity by bar in lieu of The deter complaint writ. trial court prerogative mined the ordinance to invalid its effect operative because was inconsistent with reflected statutory purpose N. J. 2A:171-1. 41 N. J. 1956). S. Super. (Law Div. Court, to the pursued appeal Orange Superior and Division, we certified the cause to a Appellate prior review below. here carries the same
The ordinance which has invalidity caused this court declare Woodbridge Sunday closing law as ultra vires the municipal Auto-Rite power. Supply Co. and Committeemen Mayor Township Township 25 N. Woodbridge, (1957). J. contains a
The South ordinance more Orange comprehen- sive activities that are specific list than did the considered. Woodbridge previously But in N. 2A :171—1 legislative pronouncement S. less than a requires nothing general prohibition excep tions accorded to works and only charity.
statute itself excludes from prohibition preparation sale of meals, food and drugs, prepared non-alcoholic bev erages well as alcoholic (as otherwise beverages :171-2, N. J. 2AS. regulation), provision made to enable the voters of legal municipality adopt N. J. 2A :171-6 which would permit any person, on Sun day, and sell sell “(a) print, publish newspapers, (b) milk, walk, deliver recreation, ride or drive (c) for (d) hire conveyances riding driving, (e) engage take part recreation, form of or amusement sport is not unlawful on other days week, if in so such does person not disturb others in their doing observance *3 of Sunday.”
In the effect of the ordinance in measuring fulfilling of the state we policy, in Chief quote part Justice Weintraub (then Judge Superior in the Court) (41 trial court N. J. at Super., page 127) : “Looking scene, apart itself, at the total from the ordinance beyond we find other activities set forth in section 3 which by example, are not restrained the ordinance. For there are manufacturing Village. opera- several establishments in the Their Sunday by tions are not reached the ordinance. Nor does the prohibit quarry Village, of a protest that, to which a letter in evidence reveals the of the owner past rarely operated yet while in the it it would be injured competitively prohibited if its activities were while other * * * quarries operate. in other communities were free to It prohibit existing store, pet does shop, not the conduct of book hobby shop, shop, jewelry shop.” camera
The fundamental error in is approach not remedied aby that activities showing not within the volun- prohibition, by tary choice of the parties responsible, not engaging “The operations. fact that no such establishments, from lunch apart remain all wagons, open is imma- night terial. The validity of the ordinance is to be tested not what is done actually but what it to be permits done.” 174,
Hart L. A. Township, (E. & Teaneck N. J. think We cannot that the ordinance 1947). question intended to be each particular time a business supplemented activity now reverses its present Sunday policy. it be set forth a
Parenthetically, may appropriate predic- tion which counsel for the deter- attaches to Orange mination below: * * * long standing “Ordinances become will invalid and
adoption ones, paraphrasing statute, unlikely of new will be because of the difficult choice between the evils of unrestrained com- stringency mercialism and the outmoded of the statute.” If true, it be clear that a quite cannot be remedy to be found in the expected judicial branch of government for what for the may prudent peculiarly legislature to consider and to it to its by petition re-appraise present approach to the situation. is affirmed. judgment I concur in the view (concurring). expressed
Francis, Mr. Justice Burling ordinance under attack in this case is invalid. However, purposes emphasizing the fundamental us, I problem desire to facing reiterate the forward, thesis put namely, the local action is condemned because conflicts with the policy of our age-old State as set inclusive, forth N. J. 2A :171-1 governing observance. The controlling declaration is clear. *4 worldly employment business, except “No necessity or works of charity performed practiced Tjy miy person .shall be or within * * * Sunday.” (Emphasis state on N. J. S. 24:171-1. added) A more positive or more pervasive mandate would be difficult to devise. But certain activities were removed from its broad compass authorized: preparation drugs, meals, prepared “[T]he food and * * * beverages beverages non-alcoholic [and] sales of alcoholic subject regulation Title 33 of the to under are otherwise which N. 2A Revised Statutes.” J. 8. :171-2. possible And it made to milk, newspapers, “(a) print, publish (b) sell and deliver and sell conveyances walk, recreation, (d) (c) for for hire ride or drive part riding driving, (e) engage form or or take days recreation, sport on other or amusement is not unlawful doing person week, others such does not disturb if in so Sunday,” :171-6, N. 2A their observance of J. S. municipality approves electorate of
providing particular at a such vote primary conduct by popular question 2A :171—6. for certain Except election. N. general on Sunday other businesses which are specifically proscribed Central enactments to in Gundaker by separate (referred Gassert, Motors v. 23 N. J. 71 this outline represents (1956)), will pattern respect work activities.
I that it is within the quite competence municipal agree exer ordinances on the as an governments adopt cise of its under R. S. 40:48-2 to authority legislate health, the interest of the welfare and But public safety. such are creatures statutory governments origin them are those boundaries of action permissible expressly to effectuate reasonably State or delegated necessary act in delegation. They impotent opposition established general regulations Legislature pur state-wide can never control. rise above the poses They their source of power.
It even in the reasonably cannot be said broad field of that a police power municipal body may enact governing either im- practices, ordinances sanctioning expressly forbidden, has State pliedly, banning practices which the has validated. expressly impliedly State So scope municipal authority ob- relating must be servance appraised light any preemption the paramount field by sovereignty. issued The State has its manifesto all em- against worldly or business not identifiable as works of ployment *5 and described above those endeavors charity, except the within control except placed specifically exclusions, the in my of the electorate. Enumeration of others. is the existence of conclusive judgment, against an affirmation of The statute and the constitute exceptions of the local state the beyond province agencies policy wholly modify in at its vary set government naught to essential attributes. there question in this case shows beyond record businesses non-charity non-necessity being
were and are than the ones out- conducted the village is the fact that plain lawed the ordinance. Equally their existence and that of trustees was aware of board their and permit trustees intended approve majority local fiats cannot be continuance. The of such validity A determination can be arrived in a vacuum. just gauged at only understanding through knowledge situations Thus, realities are surrounded. they with which one, business en- like the even some persent though existing ordinance, expressly deavors are not proscribed concerned, is effect, authority far as the local impliedly so in violation of the state them permission operate to grant thus is of more implied pro- And the imprimatur statute. in earlier times now than because of found significance the state statute to sanction specify any penalty failure of its in the event of violation. to be imposed public has established the The Legislature has defined the permissible closing respect have no alterna- The municipalities therefrom. departures cannot create other exceptions to conform. They tive but by implication. either expressly affairs, to me the view is inescapable In the state present branch of the judicial government the function of will and invalidate village enforce ordinance. v. City is laid on Sherman village Much stress
Paterson, cases, Ct. and like 1912), N. J. L. (Sup. To the extent that such for this ordinance. as support *6 action in singling cases said to municipal be may approve and of allowing on ont some business for closing some or within charity others works of (not remain other provision made) exception as implication, or by either open, by express language them, my the a attitude toward of laissez adoption faire too, the face the controlling legis- they, fly judgment lative will and should be overruled. matter, the the
In our discussion of argument own even in the absence a local general advanced that statute to the state ordinance, and without closing regard its in the exercise of the a municipality may subject, a the business ban police power single general the was made For example, on Sunday. suggestion created a particular unique if individual enterprise made it be Sunday, or traffic hazard on might disturbance day. a formal edict on that object prohibitory the Cf. Gassert, supra. may Central Motors v. Whatever Gundaker neces the merit of such a contention is not (and be legal here it at this the record fails to time), bring to discuss sary such factual associated any setting to our attention such was adduced at the proof No business. plaintiff’s the Law Division. Mere reference to hearing general Moreover, is not more, without sufficient. complaints, Chief Weintraub in (now Justice) opinion Judge Law Division says: any through counsel its disclaims than “Defendant * * day compulsory of rest assurance of a
And: noted “It should be that no effort is made to sustain plaintiff theory operations its constitute a **
nuisance Further, in this court no contention is offered the village should sustained against plaintiff’s washmobile business alone on it constitutes ground such hazard, nuisance or traffic or particular unique otherwise, as to warrant isolated treatment. circumstances, proposed consideration of
Under it is for determination issue is not hypothetical; ripe purely this time. at here is The ordinance (dissenting).
Heher, con structure and content as the local same in regulation in Auto-Rite Co. v. Supply Mayor Township sidered J. 188 Committeemen N. Township Woodbridge, It in these terms: (1957). 1. It be unlawful within the of The “Section shall limits day week, commonly Village Orange, of South on the first sale, retail, or offer for at called to sell either wholesale sets, radios, phonographs, phonograph records, refrigerators, television washing machines, supplies, electrical fixtures and household elec- appliances, component parts foregoing, trical or the *7 yard furniture, furnishings, toys, goods, sporting goods, or home commonly notions, lumber, building articles described as materials covering, hardware, supplies, bedding, garden tools, and tilizer, seeds, floor fer- shrubbery, plants, arrangements, cut flowers and floral wallpaper, paints, painters’ supplies, wearing apparel, materials and shoes, accessories; selling offering and automobile and the or for hereby prohibited. sale thereof is Village Section 2. It shall be unlawful within the limits of The commonly Orange, day week, first of of South on the called Sunday, any place open keep open purpose to or of business for the selling offering any of or for sale merchandise the sale of which Sunday by prohibited ordinance, is on Section 1 of this or for the purpose carrying conducting any following businesses, on or conjunction prohibited permitted alone or in with other or business dry cleaning, laundering, tailoring, washing or businesses: of auto- mobiles, lubricating (except oil), of automobiles sale motor repairing emergency (except repairs of automobiles to disabled vehicles), operating beauty shop; opening keeping or and the or open any place any hereby of business for such prohibited. Nothing Section 3. contained in this ordinance shall deemed prohibit, Sunday, preparation or construed drugs, meals, food, on goods, confections, ice cream baked and other tobacco, newspapers, beverages (or beverages non-alcoholic alcoholic regulation otherwise under Title 33 of the Jersey) delivery Revised Statutes of New of flowers or arrangements purchased prior floral apply at retail nor Sunday commonly to the on of businesses known as restaurants, luncheonettes, parlors, gasoline stations, ice cream stationery stands; provided, however, stores and news any there place is not at such of business sold offered for sale on Sunday any merchandise the sale of which is on ordinance, on thereat and there is not carried section 1 of this prohibited by Sunday any on which are Section of the businesses of this ordinance.” 4, section A violation of any provisions, foregoing than $100 the offender “a fine of not more subjects for a term not offense, exceeding each or to imprisonment fine and or both such days, imprisonment.” “any And it if for reason any section provided, section, of the ordi- sentence, clause or phrase” paragraph, invalid, nance be “held or to be unconstitutional adjudged hereof.” such shall not affect the remainder adjudication “is and has since continuously plaintiff corporation auto- June been business of washing engaged mobiles the use of semi-automatic machinery equip- ment on the at corner of northerly located premises Avenue Place” in College Tillage Irvington an area zoned for business. By proceeding Orange, certiorari, lieu of the writ it seeks to have prerogative “unconstitutional, invalid and to be adjudged void,” unreasonable, “arbitrary, discriminatory and a denial of due oppressive,” process equal the laws. It is complaint protection alleged “service rendered is a convenience to plaintiff’s find their who it difficult or to have persons impossible automobiles washed on and that day approximately is done Sunday”; business gross [its] 30% “most of the commodities listed” in section 1 of the ordi- *8 “have and are not sold Sundays” nance not been being and “most of businesses” enumerated in section 2 [the] “are not or have not been conducted on Sundays” intended, and the ordinance “was Orange, designed for the adopted solely entirely purpose terminating Sunday operation by plaintiff thereby eliminating business,” from a business zone a lawfully constituted “was motivated by complaints plaintiff conducting a nuisance and the employment ostensible defendant’s to alleviate an legislative power nuisance attempt alleged is an and unlawful use of arbitrary power.” sovereign
216 review, rationale of the under 41 N. J. judgment Super. Div. is that while it is (Law 1956), “generally- held that welfare power to provide general ordinances,” embraces to enact authority Sunday closing and “the is included in the authority power grant preserve Act, welfare made the Home Rule B. S. 40:48-l,” and the ordinance here “cannot be struck down on the it was a aimed at theory power perversion alone,” and if it “otherwise a valid plaintiff exercise of power, financial is an unfortunate impact upon plaintiff consequence for which there is remedy,” yet no legal “a transgresses respect to controlling laid down in N. J. 2A :171-1 et closing” seq., “and, in the additionally, of the said policy, light ordinance is an unreasonable exercise of the delegated * * power, *.” to defendant’s
Responding contention that “does not affirmatively authorize activities but any prohibited rather certain proscribes activities equally prohibited by statute,” and “hence there is no conflict with the state law,” Paterson, Sherman citing N. J. L. 345 City of Ct. Fennan (Sup. 1912); v. Atlantic City, N. L. 435 Ct. affirmed 90 (Sup. 1916), J. L. 694 & (E. N. A. 1917); Hauenstein, Schachter v. 92 N. J. L. 104 Ct. (Sup. 1918); Falls, Schumacker v. Little Township N. J. L. 106 1918); Elizabeth, Ct. (Sup. Mazzarelli v. City 11 N. J. Misc. 150 Ct. (Sup. 1933); Richman v. Board Commis Newark, sioners City 122 N. J. L. 180 Ct. (Sup. 1939), the Superior Court said that in Sherman the “court found compatibility on thesis that the municipality have may concluded the penalties of the state law were inadequate accomplish limited area and closing hence did not evince to select some for with the intent closing that others permitted operate” later cited cases “follow the same approach, emphasizing [ed] statute,” ordinance was in aid of the state and “no departure from state was “in. policy” intended,” fact while here “it would be more ‘fanciful than real’ to say the Village *9 the state “ordi- policy,” sought merely implement show a nance itself and the testimony unmistakably purpose In different from the State’s.” adopt distinctly policy this ordinance is more answer to the that “since argument in its than the ordinances sustained comprehensive coverage above, violation or incom- eases cited the absence of evident,” all the with state should be more patibility policy true; court said that “the reverse is the very that the comprehensiveness of ordinance suggests to further rather the state but policy adopt to the matter different from- approach the State has ordained shall within all of municipalities State.” continues to describe sections and 2 opinion the ordinance as in section 3 is “prohibitory phraseology”; said to be in an exclusion terms of from the “phrased operative provision of sections 1 but fact section 3 one, does not any but accomplish exception namely, exclusion from the of cut prior prohibition delivery flowers floral at retail purchased prior to arrangements Sunday”; “None of the other operations specified sec- 3,” affirmed, tion it is to be “appear way proscribed 2,” sections 1 and “section 3 thus to be intended appears to assure the merchants and inhabitants that those Sunday which had theretofore operations those operated, including law, which violated the state disturbed, would not be hence, in a sense, real constitutes an ‘invitation’ to continue activities,” indeed “other activities beyond those set forth in section which not restrained the ordinance.”
And the cited cases were distinguished ordi- involving nances some there, “prohibiting specific it was calling”; “the were addressed suggested, prohibitions to activities which were in fact conducted on Sunday, ostensibly assure law,” to the adding penalty of the state closing while “here, contrary, (except washing automobiles and the limited other restrictions described undertakes to above) actually prohibit operations which in had been regularly closed and hence were not violating fact *10 law, expressly either
the stale and to prohibition, exclude from omission, were regularly in which by operations fad to the terms all without conducted reference statute the stale the from state The deletion the penalty provision statute, it was the held, incompatibility “does not remove statute”; “If it the and the between ordinance anything, it, because, whereas in the further demonstrate serves in limited were upheld, earlier cases ordinances which assumed within the ordinance could be that activities not the state would continue closed because of penalty, to be ” now be that same would 'fanciful.’ assumption deemed And the ordinance was “unreasonable” seeking set a inconsistent with a statewide policy “to local up policy * * *”; the from declared “Ear by Legislature hitting most, the evil where it was felt (except in fact hit evil where it was felt washing automobiles) to hit the evil least or nonexistent omitted totally felt where it should have been most in the of the light state law.” fine, the
In conclusion was “the had Legislature no in the evil with a difficulty dealing single all-embracing formula, free of on the basis of degrees differentiation harm,” and there is “no reason awhy municipality should * * * have any difficulty following approach, do, so to as the it is bound so state law remains as it is.” long holds that of this Court while opinion ordinance a list “contains more activities comprehensive specific than did Woodbridge * * Auto-Rite, considered” in “the supra, 2A in N. J. :171-1 pronouncement requires less nothing than a accorded prohibition exceptions general only works of save as otherwise charity,” modified enactments in pari materia cited in the opinion; “fundamental error is not approach remedied that activities not within a showing prohibition, by choice the parties responsible, are not voluntary engaging operations.” in Sunday
Eor the in Auto- opinion reasons given dissenting Rite, I am not in with this assessment of legis- accord unreal lative intent and I it is submit purpose. hold that in aid of the Sherman the ordinance “was statute,” State from while policy,” “no State departure the much ordinance is more Orange comprehensive but to serve designed State “implement policy,” State’s,” “a from and its policy “very different distinctly further “not to comprehensiveness” suggests policy,” State but rather an matter “approach different from that shall which State has ordained State,” within all the municipalities *11 “constitutes an in violation Sunday ‘invitation’ operations” of “the state law.” And it is not in this significant regard the ordinance “undertakes operations to prohibit had fact closed and been hence were not regularly violating the State law.” There perceivable is no reason principle the confined policy why legislative local should be power law; to the of the violations of State outlawing existing would practice. contrary accepted legislative said As in the Auto-Rite dissent, if the had municipalities the to increase nominal power the laid down the penalty statute, in aid of the enforcement of the preexisting State related policy, needs, local then the same particular very principle now, obtains when state-prescribed the fortiori have penalties been enforcement of the abrogated to the local authorities. There can be no relegated question such was the exe- purpose. Judge Clapp’s 2A foreword to Title leaves of this. getical no doubt It cannot from reasonably be the course taken presumed, here, the intended to the Legislature strip municipalities of the so exercised in the police power aid of long fulfillment reiterated observance, state mandate for Sunday —to this undue limitation impose upon the time-honored basic rule” of “home legislative principle matters the affecting Doubtless, welfare. had in public mind Legislature of a as a means of shortcomings general penalty satisfying needs, and local the practical of difficulty “works of defining local require- of varying in the context charity” of the essential reason, this view But
ments. whatever and compelling; is clear intent and of the statute there is no conceivable contra. ground Fred v. Mayor said in
As Chief Justice Vanderbilt 515 (1952), N. J. Council Borough Tappan, of of R. 40:48-2 is broad police power granted “pro the action taken to the limitation” that “only or other or inconsistent with Constitution hibited statutes.” Sherman, v. have Fennan City In addition to we forbade certain where the ordinance City, supra,
Atlantic others; but excepted amusements Sunday specified Hauenstein, v. ordinance supra, involving Schachter enumerated store-sales of Schu goods; banning Falls, Little Township supra, macker barring carousel, on Sunday “any operation merry-go-round of “any gain, dancing swings scups” Elizabeth, v. City supra, hall or Mazzarelli pavilion”; an added for local imposed penalty where and Richman v. Board Commissioners infringement; Newark, where the ordinance supra, City p. m., after sale of groceries holding have all that “the ordinance included the hours might merchandise, all day and also but failure to do make does not invalidate nor lawful the so groceries *12 p. m:.,” the hours before one could not be during of the sale of specific prohibition said this groceries “invitation,” by implication,” “expressly constituted make of other merchandise forbidden State law on Sunday. 8. 2A .V71-1 be necessarily assayed for quality
N. in the context of history act range prior judicial interpretation. and its long-accepted here of There no manifestation an intention to modify the local police power; quite contrary. Auto-Bite, iterate the view To dissenting expressed here is not in “conflict” statute; state it does not “impliedly grant permission” transgress act; and the judicial invoked in power may aid of avowed flout the plaintiff’s objective to state law.
I would reverse the judgment. Burling For Oliphant, and Ekancis affirmance —Justices —3.
For reversal —Justices Hehek and Wachenfeld —2. CORPORATION, APPELLANT, WESTINGHOUSE ELECTRIC REVIEW, v. BOARD OF DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF AND LABOR INDUSTRY JERSEY, THE OF STATE OF NEW GENERAL CERAMICS CORPORATION, ELKO, & STEATITE VIOLET H. AND OTHER EMPLOYEES OF WESTINGHOUSE CLAIMING STRIKE, BENEFITS DURING THE PERIOD THE OF RESPONDENTS. CORPORATION, APPELLANT, WESTINGHOUSE ELECTRIC REVIEW, ETC., v. AMICO, AL., BOARD OF ANTHONY ET RESPONDENTS. CORPORATION, APPELLANT, WESTINGHOUSE ELECTRIC REVIEW, ETC., KLAUS, BOARD OF AL., FRANK ET RESPONDENTS. CORPORATION, APPELLANT, WESTINGHOUSE ELECTRIC REVIEW, ETC., v. BOARD OF REDMOND, THOMAS P. AL., ET RESPONDENTS. CORPORATION, WESTINGHOUSE APPELLANT, ELECTRIC REVIEW, ETC., v. BOARD OF NAGY, CORNELIA E. ET AL., RESPONDENTS. Argued September September 23, 16 and Decided October 1957.