Two Guys From Harrison, Inc. v. Furman

CORPORATION, HARRISON, INC., A FROM TWO GUYS CO., PLAINTIFF-APPELLANT, LUMBER AND CHANNEL CORPORATION, PLAINTIFF-APPEL A INTERVENING FURMAN, LANT, ATTORNEY GENERAL v. DAVID D. ALS., JERSEY, ET DEFEND OF THE STATE OF NEW ANTS-RESPONDENTS. Decided April Argued 1960. December 135, 157 A. 2d also 59 N. J. 351. See Super. David Clancy

Mr. John J. Mr. argued Stoffer cause for plaintiff-appellant Clancy Hayden, (Messrs. John David Clancy, Mr. Mr. and Mr. attorneys; Stoffer Jacobs, M. Joseph counsel). cause for Mr. Julius Stein argued intervening plaintiff- Feinseth, Mr. Julius appellant attorneys; 8tein (Messrs. 8tein, Stein, Kenneth counsel; Mr. B. on the brief). Mr. Walter E. Jones the cause for argued intervening defendants-respondents, Inc., R. R. Co., H. H. Macy Macy Co., Co., Inc. Plaza Bamberger Garden State t/a et Corp., al. Satz, Jr.,

Mr. David M. Deputy General of New Attorney Jersey, the cause for argued David defendant-respondent, D. Furman, Furman David D. (Mr. General, Attorney se; Jr., Mr. Satz, David pro M. General, Deputy Attorney counsel; of Miller, Robert Mr. Assistant, S. on the Legal brief). Wilentz, Goldman,

Messrs. & Spitzer Sills filed a brief for Perth Chamber of Amboy Commerce and Reynolds Bros., Inc., Wilentz, amici curiae Robert N. of (Mr. counsel).

Messrs. and Lieb Earlcavy filed a brief for Bros., Riekel amicus curiae. Inc.,

The of opinion the court was delivered by C. Plaintiffs J. attack the so-called Sunday Weintbatjb, Law, 119 of Closing 1959, the Laws of N. J. S. 2A et :171-5.1 They moved for seq. summary judgment and the Attorney General countered with a motion for on the judgment The trial court pleadings. denied plain- tiffs’ motion and defendant’s. 58 granted Super. Div. 1959). We certified

(Law plaintiffs’ appeal before the Division acted Appellate it. it is well to sketch

Preliminarily some highlights Its history Sunday legislation. is traced genesis to the at Mount command Sinai: keep therefore; holy you: shall sabbath “Ye for it is unto everyone put surely that defileth it shall be to death: for whosoever any therein, among work soul doeth shall be cut off from his days may people. done; Six work be but in the seventh is the rest, holy Lord; sabbath of to the whosoever doeth work in day, surely put (Mxodus sabbath he shall to death.”

31:14,15.) Church, 227. Pfeffer, (1953), State and Freedom p. was the seventh and so remains day Sabbath Sinai most faiths, the members of some but for Christians minority is the first the week. day as Pfeifer out true, points 229), probably (p. Church- product legislation historically with unions. The American colonists them brought State the tradition of a state-established Tudor v. Board religion, Education 14 N. J. cert. Rutherford, (1953), Ct. 99 L. Ed. 644 denied, (1954), U. S. for sectarian reasons the perhaps solely authority colonial was exerted to the Christian support government 1675, 2, Sabbath. 228. Thus on December Pfeffer, p. work, kind servile un act was of adopted prohibit “any recreations, lawful or travels” the “Lord’s unnecessary of or Acts Day,” mercy works excepting only necessity. of XI, & & the General Grants Assembly Learning Spicer, Concessions ed. 98. & 1881), Learning See also (2d p. cit., Allinson, 124, 245; Acts the General Spicer, op. p. p. of 3, the Province New Assembly Jersey 4. pp. (1776), of Revolution, The first after the comprehensive legislation “An entitled Act for vice and was suppressing immorality,” 16, enacted on March 1798. Paterson’s Laivs (1800), 329, statute, et This which follows basically p. seq. act, of the colonial went statute approach beyond English II, c. most Car. for prototype legislation statute prohibited pursuit the states. by English vocation, of one’s usual whereas our act was not thus con- result, for that a fined, example, Sunday contract, with usual occupation unrelated to the held parties, Butcher, unlawful. Reeves v. 31 N. J. L. to be Ct. 1865). (Sup. Blue Law

In 1926 the Hew Revision Commission Jersey Resolution. In its final was created Joint report 7, 1927, the Commission recommended that all January Sabbath, on the permitted subject forms of recreation 32, 42, Eive bills (A-l, and municipal regulation. 252) were introduced in the but none Assembly passed. The statement attached to A-42 noted that “By failure general present to enforce the vice immorality act, the public no shows wants restrictions on the to observe right as individual sees citizen fit with the possible exception that there should not be tolerated on that amusements day profit.” for pecuniary

Eor we present purposes, recite some provisions of Law as continued revision of 1937. B. 8. 2:207—1 to 30. The first section imposed $1 fine of its violation of provisions: traveling, worldly employment business, ordinary “No or or servile water, except necessity or labor work either land or works of * * * charity, shooting, fishing, sporting, hunting, no gunning, frequenting racing, tippling houses, any or interludes dancing, plays, singing, fiddling or or other music for the sake of merriment, playing football, fives, pins, bowls, long at nine bullets any quoits, sports, playing, pastimes or nor kind of other or diver- done, performed, practiced by any person sions shall be or used Sabbath, day within this state on or the Christian first week, commonly designated Sunday.” called and hereinafter 2 excluded Section from the ban against traveling, “going to or from any church or within returning place worship the distance of miles, or call a twenty going physician, midwife, or mail or or from surgeon any post carrying office, or order going by officer express by public * * *.” 5 excluded “the victuals Section in dressing houses, families or in inns and private other house's lodging of entertainment for the of sojourners, use travelers or Section 6 strangers.” prohibited Section selling. pro- vided for a fine of if any stage $8 shall be driven “and sufficient reason shall not be offered to show that it be in done cases of or etc. necessity mercy,” The illustrates the stern of the foregoing approach Sunday The law. sole et significant exception (B. 8. 2:207-18 seq.) act only but permitted, upon adoption by municipal referendum, to: any person “* * * (b) newspapers, print, publish (a) sell and and sell recreation, (d) milk, walk, hire (c) for' ride or drive deliver riding driving, conveyances carriages or other horses and recreation, sport, engage part (e) or in form of or or take days week, unlawful on other amusement is not corporation doing person in their does not disturb others so such or Sunday,”

observance of amuse- recreation, or sports subject to local regulation L. c. was introduced P. ments. This exception form in somewhat different it had first although appeared in P. 1893, c. 34.

In a series of events which contributed 1951 there began In that year, touch to this delicate comic-opera subject. laws, the tenta- Title 3 was revised. With respect The recommended obsolete.” “Repeal, tive draft cryptically laws,” the indifference to “blue backdrop widespread content, absurdly archaic character of much of its and the violations). then for most ($1 ineffectual penalties existing did not follow the recommenda- however all revised the and eliminated language tion but rather to the revision explained: The foreword penalties. object general (N. “The Revision of the laws S. changes ¡171-12) to 2A was not to make broad sub- 2A:171-1 provisions. stance, rather to eliminate obsolete It was intended but municipalities power, they had, with the theretofore to leave regulate Sunday activity.” control and revision replaced N. J. 8. 3A :171-1 the 1951 extensive with a sentence: verbiage single worldly business, employment except necessity “No or works of charity, performed practiced by any person shall be or within day Sabbath, week, this state on or the Christian first commonly designated Sunday.” called and hereinafter Yet sweep “blue law” remained. Whereas in other jurisdictions the concept “necessity” could be and was inflated to meet the taste and habits of reasonably new here term remained inelastic. This was generations, so section, because the N. J. 3A following :171-3, excluded “the only meals, and preparation prepared sale drugs, food and non-alcoholic on “sales of and Sunday” beverages alcoholic which beverages subject are otherwise to regula tion under 33 of Furthermore, Title the Revised Statutes.” explicit and although prohibition against “traveling” various recreational activities in the statute earlier expressed was not revision, in the specifically repeated yet 2A :171-6 which, continued the earlier provision only upon of the act local adoption by referendum, permitted walking, recreation; or for hire of riding driving for conveyances recreation, form riding driving; participation amusement; or sport and such routine matters as the publi cation and sale and the sale and newspapers delivery milk. Hertz Washmobile Orange, See South System N. J. 130-31 Div. 25 N. J. Super. 1956), affirmed (Law law Thus the of the earlier was (1957). rigid policy continued, without, aid of however, the penalties.

The of 1951 revision presumably placated religiously sensitive pain preferred without to those who secular pursuits. In the of its the solution was not year adoption provocative; indeed it came without comment. But virtually shortly thereafter the scene Eetail changed. operations spread rapidly mounted highways Sunday selling dramatically. The urban merchant could meet effectively the challenge. roads, travel, burdened non-commercial major already by strained under added observants of Eeligious stress. Lord's resented the added hustle and bustle. Day Economic who pressures many labor diversion. compelled preferred Motivations, Thus returned to Sunday closing stage. internally divergent incongruous, converged upon single have been objective. historically may What matter solely became a social and economic concern issue. religious not been to meet The statute had the new designed problem. so Events moved revision of 1951 was rapidly An effort made interpretation. soon before us the thesis prosecute Sunday operation despite the the revision should held repeal penalty $1 210 offense, carry-

denounce an infraction as a disorderly persons a fine maximum of ing penalty year imprisonment one such $1,000. pur- could find no of A of court majority the a criminal “effect on that while the statute’s pose, adding instituted, here, such one produces as the proceeding atten- can do is call the the most that this court anomaly Lawn of State v. Fair tion the result.” Inc., Center, 20 474 Service N. J. (1956). As revision stated above, noted the foreword of 1951 had, to theretofore municipalities they retained “the power, control Sunday activity.” Municipalities sought and regulate meet faced formidable difficulties. the new but problem adhere to Eirst, had to they municipalities, legislated, of the State the unrealistic and generally unpalatable policy are in and continued in the revision. We established of adopted formed three the 567 municipalities that but Efforts to different adopt policies ordinances. conforming failed effect of estab policy because of the restraining v. Wood lished law. Auto-Rite Co. Supply the state N. J. Hertz Washmobile bridge (1957); Twp., Second, v. J. 207 Orange, 25 N. System South (1957). boundaries, a by municipal localized problem being from could not itself the activities of municipality protect Hence a state-wide pressure developed its for neighbors. or regional approach. economic interests and State, the sections

Among areas much were irreconcilable. resort or citizen habits no A part Sunday closing. compromise of them wanted 138 of Laws in the form emerged et It the sale of certain seq. prohibited N. J. S. 2A :171-5.1 of the 21 commodities in 18 counties. That categories unconstitutional in act was declared Sarner Township of Union, Hiv. 55 N. J. on the Super. 1959) ground (Law was of three counties No arbitrary. the exclusion was appeal prosecuted. the statute assailed

Thereupon Legislature adopted It follows the pattern in the case. present substantially the act invalid in adjudged in lieu Sarner except provision in act is operative effect 18 counties the in operative such counties as only adopt At election of November 1959 the referendum. appeared act the ballot in adopted 15 counties. failed three. The case remaining present was started election withheld, before the but decision was consent, until apparently by after the votes were tallied.

I. Plaintiffs assert the statute is beyond police power the State; that it contravenes the ban the union against of State and Church in the Federal Constitution and (First Fourteenth Amendments) and in the State Constitution I, 4); and that (Art. par. the act can survive critical as power inquiry legislate, nonetheless the classifica- tion of what be may and not sold pro- denies equal tection of law guaranteed by the Fourteenth Amendment and State Constitution. Washington National Insurance Revieiv, v. Board Company N. J. 545 Reliance (1949). is also placed upon the concluding IY, Article paragraph Constitution, par. State that “The providing § * * * * * * pass shall laws for all Legislature general which, cases in its be for judgment, may provided by general laws.”

The not did recite the Legislature facts found. Nor is there to aid us in this any legislative history fundamental We must for accordingly probe the answer within inquiry. the context of the statute itself with such help as the general of the afford. background subject may Our task is made even more difficult the circumstance we by must choose and between what said what it Specif- did. will ically, presently in our view as be enlarged upon, the chapter depends upon whether validity it merely revision 2A ei supplements :171-1 seq. called “the or revision”) supersedes its (hereinafter policy. 119 is entitled:

Chapter week, day concerning of the “An observance of the first act penalties engaging commonly Sunday, providing known and as attempting selling offering or to sell or to sell in the business of supply materials, wearing building clothing apparel, and lumber or Sunday, furnishings appliances furniture, and household and office Jersey supplementing 2A New 171 of Title of the and operative Statutes, providing shall be that such act county referendum shall de- the voters thereof unless and until apply termine that it shall therein.” retail, whole- sale or offer to sell at Section 1 prohibits in the articles described sale or auction of the categories or as isolated necessity charity title works of “except usual course of the business transactions not is made a disorderly person. A violator participants.” upon $500 a maximum of depending fines are graduated for 30 offenses, days number of and imprisonment to six up authorized for third offense additionally offense. A sale single months for a fourth or subsequent 2 further violation. Section separate or offer constitutes shall convictions the premises four provides 4 reads in part: deemed nuisance. Section remedy “This act shall be construed as additional secure * * proper observance II. attacks, with the constitutional we shall first

In dealing 1951 assume 119 is to the revision chapter supplement “an additional for its provide remedy” and is designed enforcement, as has described it. the Legislature

A. is whether the 1951 revision violates the first issue Amendment as made applicable by of the First edict Constitution, Federal that a clause of the state: process due * “* * respecting no law of shall make establishment religion,”

213 or I, of Article of par. Slate Constitution that: religious preference “There no shall be establishment of one sect in to another.” If the revision is 119, thus it and vulnerable, both as a mere supplement it, would fall. have

We no doubt that our Constitution for State bids Sunday legislation designed to such the tenets support of any sect, dominant, however as such the or to protect sensibilities religious of members faith or for that Education, matter of all In Tudor v. Board supra faiths. 31), this held (14 court that a board unanimously could education not permit distribution the King James version the Hew Testament. The court ac there J., (14 N. cepted at as definitive of the State page 44) Constitution the view of the Federal Constitution expressed Education, in Everson 1, 15, 18, v. Board 330 U. S. 504, 711, S. Ct. L. Ed. 724-25 : (1947) religion’ “The ‘establishment of clause the First Amendment means at this: nor least Neither state the Federal Government up pass religion, can set a church. can Neither laws which aid one * * * religions, prefer religion aid all or one over another. * * * requires That [First] Amendment the state to neutral groups religious in its with relations and non-believers.” believers Hence if the 1951 revision fashioned such purpose, we could sustain not it under the Constitution of our State. We think that the same States United hypothesis would reach the result Supreme Court same under believe, Federal Constitution. we This, the inevitable thrust of the of that tribunal discussed in Tudor. opinions Clauson, Indeed, 306, 314, in Zorach v. 72 S. Ct. U. S. Ed. the incidental (1952) appears ** * “may observation that state not coerce anyone which, it, observe a we take refers religious holiday,” attend services but also to com- only compulsion to pulsion to desist from because it offends activity merely

2U in contrary

the creed of others. We find to nothing 299, Ct. 1086, 16 S. v. 163 Hennington Georgia, U. S. Minnesota, 164, S. 41 L. Petit 177 U. Ed. 166 v. (1896); v. 666, in Friedman 20 Ct. 44 Ed. 716 or (1900) S. 1345 L. Ed. 623, 95 U. S. S. Ct. People, federal a substantial which dismissed for want of (1951), the New York from the question appeal judgment 2d 184 (1950). Y. 96 N. E. Court of 302 N. Appeals, locally law deemed In none of those cases was the state character a as such be measure to protect religious Hennington in The rationale of the statutes Sabbath. health terms, protect public and Petit was in secular labor. And and welfare the hurt of uninterrupted against Friedman, eschewed carefully the New York court religious objective, saying Legislature “recognizes rather than rest, as a relaxation and recreation day for play, 2d, E. at page 186.) Sabbath.” merely (96 N. religious Harrison-Allentown, McGinley, Inc. v. Two Guys Cf. from Pa., 1, 1959), probable C. E. D. Dec. (D. F. Supp. - Crown Kosher noted, 80 Ct. jurisdiction S. (1960); Mass., F. Inc. Gallagher, Supp. Market Super noted, 80 Ct. C. Mass. 1959), probable jurisdiction (D. - (1960). enacted in the If statutes were truth would be no achieve sectarian it ends, Colonies solely We think plain in this constitutional inquiry. consequence and the union of Church State the ban against with the rather than to imbed past intended to break Everson v. had with them. the colonists practices brought Education, and union Church State supra. Board of Re oppression. centuries of bloodshed had spawned in the New and discrimination continued ligious persecution Everson, Even our colonial Tudor supra. World. See while freedom of assuring worship Constitution of the establishment of XVIII) prohibiting religious (Art. members of the only Protestant XIX), sect guaranteed (Art. civil and the denial of hold rights right faith against public office It was our (Art. XIX). upon, soil that religion liberated, and truly this both the divorcement from support and the “wall restraint of The government. from separation” conviction, rose from cur- renewed easily rent elsewhere, events union and of Church State is baneful, each mutually for those incurring hostility who dissent from the other. therefore, is whether the 1951 revision question,

was in fact to serve enacted interests. Preliminarily, religious that an may be said answer affirmative cannot be found in the naked circumstance that of a coin policy statute cides with the views of a sectarian Eor group. example, the State denounce not may larceny, adultery, murder, that religions also those acts. Gener withstanding proscribe ally, statutes Sunday prohibit pursuit of one’s regular on the As our calling already Sabbath. indicated in refer Petit, ence above to is Hennington purpose claimed to protect physical and moral debasement against consequent upon uninterrupted upon labor. It is that basis prevalent law is sustained. Auto-Rite type Supply J.; Co. Woodbridge Twp., supra (25 192); at page Jur., 50 Am. 808. Sundays Holidays, at An p. § identification the public between seven labor and days health, Indeed, morals and welfare cannot be denied. safety, know, for all we at command Mount Sinai also have rate, been addressed to the same objective. At the secular and sectarian different, motivations should be of the State is not power preempted by circumstance was first the scene. religion

If the a seventh labor Legislature prohibited regular day without work on a the secular motiva- banning specific day, tion would be unobscured. It is the selection of the Christian Sabbath which orientation. But suggests again religious Church and pursuit State meet on common ground their interests. The fact is that has ac- respective character quired special it from other differentiating and this reference days week without to religious many people. Sunday many things

connotation. Today seek is a of citizens majority which the vast day upon routines. ordinary from the and demands of respite pressures others, alone. To some, To it is a for devotion day religious commanding religious whether or not members of faiths hobbies, observance, day play, it is a secular holiday, others, it is a combination recreation or relaxation. To still reunions. all family friendly of these. It is for day feel to do as they Most want for themselves people Sunday own should, way himself in his to each to they prepare meet the Monday morning. demands of ’ implicated Thus health and welfare are the public and intrude unreasonably when the hustle and bustle mount The in rest, for leisure and diversion. upon opportunities as, for example, road be in terms of direct interference may to the when commercial activities add to traffic highway upon driver otherwise Sunday impinge discomfort or The rest, scene conducive to diversion recreation. inroad indirect but real as when those who may be equally the economic aims of their want to be free on find when them to work to hold their or compel jobs, employer them and upon the economic impact employers requires Hence we cannot their staffs to remain at the grindstone. be selected Sunday may constitutionally by say relief from of a to pursuit purpose provide Auto-Rite Co. v. Woodbridge Twp., the routine. Supply J., v. 192); Hennington Georgia, N. at supra (25 page Ed., S., 1088, 41 L. 304, at 16 S. supra p. U. Ct. (163 205, at Lane v. 259 66 McFadyen, So. page 169); Ala. Co., 83, Tinder v. Auto 2d Ct. Clarke 1953); (Sup. 302, 808, 238 Ind. 149 N. E. 2d 814-815 Ct. 1958); (Sup. Evanston, 2d Chevrolet v. Ill. Humphrey City of 70, 72, 131 N. E. 2d 57 A. L. 2d 969 Ct. 1956); (Sup. R. Weiss, v. 97 Minn. 105 W. (Sup. State whether that decision Ct. The 1906). question legislative those who observe the freedom of upon religiously impinges matter. seventh of the week be another See day Mass., Crown Kosher Market Inc. Super Gallagher, F. supra (176 466). ns, is not Supp. before we intimate no view.

The with the 1951 difficulty that, revision is unlike the law, usual far type it goes beyond objective of a day from labor. It bans respite uninterrupted (al- without all forms of recreation. though present penalty) Even denounced, for walking pleasure except upon approval local referendum. One is hard a fair con- put find nection between such restraints and known threat any health, or public puritanical morals welfare. safety, a sectarian theme of the act orientation strongly suggests desire to “desecration.” protect the Sabbath as such against If such is not the event it is difficult then in purpose, to find basis such extraordinary under the police power restraint individual freedom.

We have discussed this issue with respect constitutional need revision with no to decide it. We purpose not decide it reasons to be because, momentarily for other stated, seeks to imple- cannot be upheld nonetheless ment the of the revision. The discussion policy issue useful, remains for it relates to the same Church-State to which validity we will later refer in with the dealing rather than 119 viewed as an statute chapter independent as a to the law. supplement prior

B. If revision, 1951 merely supplements it must be deemed to be same evil which addressed to the the revision found and to the same objective. legislative 119 cannot be sustained because Upon premise, chapter its classification of what and not be sold is may may wholly unrelated to that evil and and objective it denies accordingly of the protection law. equal

«18

Pew more issues are than troublesome that of classifica Holderman, In tion. Restaurant Assn. v. N. J. 295, 300 we said: (1957),

ciples lature one who equal protection have a legislation. which hit the evil the constitutionality classification, step by step, trative substantial objective might decision. Thus service of the harm to the supra (249 harm to the mathematically [63 L. Ed. (1) “The long (1955). must not be of unusual may compound convenience rational basis burden trail of assails thus limit its action 597]). where consideration U. public But for the general Hence or few exact.’ it with which all a statute on elasticity. clause because failure. the difficulties of one who assails the it is most is not palpably arbitrary ^[265] more concerned is * * *” demonstrating- it Legislature may recognize degrees welfare.’ De Monaco v. second may ‘stop would Dominion is at fully expense, enough In relation to the extremely formidable, page It is practical exigencies, including felt. proposition public policy addition to the ensue this achieved upon organic challenges to demonstrate that thought easily short Hotel, that a statute ground [Citations omitted.] * * a decision to or the rule laid down were made by another, of those stated that capricious, Inc. v. S. less must contend with specific objective * qualified or convenience Ct. strong presumption Renton, or because of ‘some important cases ^[273] proceed cautiously, State of as is attested the classification contravenes are more and 18 N. J. at approached, limitations which the legislative legislative harm (2) expansive than the page Arizona, adminis- or Legis- must prin- by In these first applying principles, we must ascertain evil the found measure and then against evil, reasonableness of the classification. The as revealed by scope revision, was an impairment public health labor. Work consequent uninterrupted found to be consistent with the welfare in the public only area of necessity charity, concept of necessity being, as we have pointed out, narrow and already exceedingly tight. More that, than the evil be said to have been fairly found in all for the revision denounced virtually activity, even recreation except upon brief, local referendum. In Legislature public found weal restraints which required in substantial effect would rest. Such compel being reasonable fathom evil, of the we cannot conception area the work in 119 of chapter basis for the differentiation the work from in of the items it proscribes embraced the sale accordingly area it leaves untouched. The classification unless law of the offends the demands of equal protection arbitrary otherwise relieved of its the discrimination bemay in rules summarized resort to the by subsidiary character Holderman. from excerpt foregoing Holderman, which in a in discrimination As stated be invidious matter would otherwise the nature of the subject a if, speaking, character generally be relieved of that may in terms of degrees found for it rational basis may in process inherent evil or in the practical problems rules can save None of these or in enforcement. legislating infirmity. 119 from constitutional chapter where strike at evil may The reason why Legislature scene in which entire finds it without first surveying it conces- inescapable is an exist even in equal degree social and economic of a complex sion to the practicalities if the hamstrung would be process order. The legislative before it nook and corner explore every had to for in the 1951 here such is not the situation acted. But and indeed found located the evil revision the Legislature in works other than activity every phase it to exist upon and the exceptions permitted and charity of necessity in chapter discrimination local referendum. Hence the was a prac- the thesis that there sustained upon cannot be of the area con- the extent in ascertaining tical difficulty said that chapter evil. Nor can it be taminated for, felt it most evil where it chose to hit the the Legislature implements still hypothesis worthy had been found law, earlier the evil policy Nor can it be the entire scene. condemnation throughout enforcement warrants said that practical problem prohibition only discrimination, obviously for quite of enforce- problem serves to create some commercial sales were addressed if the sanctions not exist ment which would to the whole area embraced of the revision. by policy the Hence in upon none of these can the principles Legislature, of the pursuit revision, of the between objective discriminate the commercial those activities covered 119 and by chapter its beyond reach. explored

We still other in of our possibilities discharge to sustain a duty statute it is to do Hence so. possible we the can posed the classification be sustained question, thesis the the lack the found that Legislature despite the with penalties 1951 revision had been complied by all those sold except chapter 119, who the items covered by and thus the was to introduce sanctions in area purpose where needed? Prior to the elimination of the meager the revision of a number penalties by municipal ordinances were sustained some they only selected although activities for punishment. theme, quite tongue-in-cheek, apparently was should assume statutory court was ban effective in except the limited areas in which local But, with government added its weight. repeal penal provisions could in courts not indulge assumption voluntary with a compliance non-penal measure and hence that such reality acknowledged ordinances truth support the state sought, policy, but rather to establish another under some policy which would be denounced other activity while activity equally within the State’s continued undeterred. Auto-Rite policy J., Co. v. at Supply Woodbridge supra Twp., (25 page Hertz Washmobile 195); System South Orange, supra N. J. at it (41 Super., pages 125-126). here, So would for us pretend absurd its tooth found less declaration in the 1951 policy revision had been honored all vendors articles but the proscribed by 119. much reject That we can basis of upon what teemed about us.

Another similar was examined. Prior to the possibility law, removal sanctions from penal had been held that habitual violations law brought owner of the within the crime of main place common-law taining disorderly punishable house under what is now N. J. S. 2A aby :85-l maximum of three years imprison Reade, $1,000. ment and a fine State v. 98 N. J. L. 596 Ct. 1923). The further we (Sup. question accordingly whether, raised was the elimination of the notwithstanding provisions the 1951 penal by habitual violations of revision, its indictable, remained 119 policy so that chapter might be viewed as a measure intended to impose penal additional ties where criminal had existing liability proved inadequate. who Counsel in defense of statute were appeared unable to upon the answer to the agree question.

We think a can ready answer be found in the notorious fact that Sunday had not been dealt with as a selling and crime hence the could have Legislature hardly intended rate, to reinforcements. At bring up we cannot find a reasonable basis for the house disorderly approach.

true that the common-law crime has been in this applied quite broadly State to habitual of non-penal violations pro Martin, hibitory v. 77 statutes. See State J.N. L. 652 State, & A. v. N. (E. 1909); Having 51 J. L. 386 (Sup. Ct. 53 J. 1889), affirmed N. L. 664 & A. (E. 1891); cf. Co., 12 State Western Union J. 468 Telegraph N. (1953), dismissed appeal U. S. Ed. 379 (1953). in the But last is the analysis it intent legislative which prevail. must It is difficult to find that a Legislature which eliminated the nonetheless penalty $1 desired that Sunday be punishable as a full-blown selling crime with a maximum Vince, $1,000. and In years three re 2 N. J. 443, Cf. (1949). Surely who voted legislators for chapter 138 Laws in (declared invalid Sarner) and for 119, with its chapter provisions county-wide referenda, to learn would startled from us that Sunday selling such entails drastic everywhere in the consequences State. No less would surprised prosecutors be the of the 21 counties and the local enforcement many authorities who have not the criminal and pursued who in remedy indeed, the counties in which 119 was have assisted merchants chapter adopted, sold. not be what determining may does not apply

Our conclusion that the common-law crime rea in a sense activity by to foreshadowed Inc., Center, v. Fair Lawn Service supra State soning J., at in which it was found that (20 page N. 468), did not of the revision intend violation Legislature feel as a offense. We disorderly be punishable persons in this intent fortified appraisal legislative fact before and after Fair Lawn that both the revision within failed to bills introduced adopt bring Act, 2A et Disorderly Persons :169—1 seq. (see A-339; 1953-S148; 195<U-S309; 1955-S133 1956-S28 au A64; 1957-A61; 1958-A180 and and to A215), relief violations (1955-A430; thorize injunctive against 1956-A74; 1958-A152 and 1959-A656). cf. have all conceivable facets in search of a explored We 119 as a supplement tenable uphold ground we con the 1951 revision. We can find none. Hence must is not rationally clude that the classification of 119 chapter wit, addressed, related the evil to which the revision was the harm work and consequent upon uninterrupted activity, revision, if to the viewed accordingly, supplement would the guarantee 119 violate chapter equal protection similar hypothesis, the stated classifica Upon the law. Auto-Rite arbitrary: tions have been held to Supply J., at Woodbridge (25 194, Co. supra pages v. Twp., Julian, 447, Mt. Vernon v. 369 Ill. 17 N. E. 196); City of Antonacci, 52 Ct. Henderson v. 62 2d 2d So. 1988); (Sup. v. Lake Gronlund 113 1952); City, 5 Salt (Fla. Sup. Ct. 284, Elliott v. 1948). 194 P. 2d 464 Ct. See (Sup. Utah State, 340, 284 389, P. 46 A. L. R. Ct. Ariz. 242 (Sup. 29 55 Cal. 36 550, Ex Am. 47 Westerfield, Rep. 1926); parte City, Kansas Mo. 1880); McKaig 1033, Ct. (Sup. 1953). 2d 815 Ct. 256 W. (Sup. is in discussion terms the foregoing equal

Although reveal law, it serves also to that chapter of the protection 119, far from being designed the 1951 implement revision, actually establishes new its own, policy incompatible with the of the policy law, earlier thus inviting the question to which we now proceed, does 119 supersede the chapter revision, and if so, is it vulnerable to the several constitutional levelled challenges by plaintiffs?

III. As we will later demonstrate, 119 survives chapter the attacks enactment, it it is an un independent anchored to the policy of the 1951 revision. threshold is whether question 119 did operate supersede policy the 1951 statute.

We must sustain the will if at all legislative possible. To that end we should look to the sub through gloss stance of a statute. Thus we recently upheld enactment aas law general had notwithstanding as a In it one. re garbed special N. J. 357 Freygang, (1957).

Ordinarily issue involves repeal implication whether the question earlier statute continues in effect. If later act a new prescribes scheme or will approach supersede prior matter, treatment De Ginther v. Home, etc., New 58 N. & Jersey J. A. (E. Roberts, 1895); State v. 21 N. J. 555 (1956), cf. if the especially policies statutes cannot See coexist. Sutherland, Statutory Construction ed. (3d 1943), § S., Statutes, 463; 82 p. (b), C. 492-3. As the pp. § discussion on the basis foregoing reveals, approach 119 and policy chapter the 1951 revision are thus incom The 1951 revision patible. embraces the stern policy of which we have general inactivity 119,. described. Chapter hand, a radically other embraces different one policy, denounces a of part which but the commercial scene and leaves untouched the individual right to follow recrea other tional and pursuits. perfectly plain that citi- 119 the contemplated adopting chapter Legislature unscathed. will continue zen its interdiction beyond activities issue which the situation, Here we have a quite unique, notwithstanding earlier continue is not whether the law whether the statute, but rather of the later the operation because shall be defeated will later expression legislative one of legislative is wholly of an earlier act. question the normal assumption We must invoke intent. unless the prevail later expression desired the strongly circumstances states or the total

statute itself can- shall fall if it that the later act imply contingency earlier with the one. coexist constitutionally contingency. state that expressly 119 does not Chapter statute as of the is it in the characterization implicit Nor shown, have already earlier law. As we to the supplementary the 1951 revision. not in fact supplement 119 does chapter or supplementary an amendatory are not with dealing We sustain it at the expense is so minor that statute which “the tail be to permit basic statute would pervasive such statutes are so incomplete Ordinarily to wag dog.” survived they would be they virtually meaningless 119 is a Here, said, chapter complete as we have alone. aid without operation capable act legislation, dissociated from its law and in fact completely the prior The use of the words “supplementary” provisions. is too slim to denial support “additional remedy” will. expression legislative later find the by implication upon Nor can we contingency On contributions of the statute. respective evaluation of supports contrary, comparison strongly overriding 119, for it will to achieve operate whereas effect remain end, the 1951 revision would but affirmative some two purposes, but declaration, seemingly serving a sterile restrain The first is to the munici- utility. of doubtful both of their police power, in the exercise compelling palities or conform to the do discredited nothing them to choose to The second is to men to permit the revision. terms of

225 disavow the name of contracts piety they make solemnly on Sunday, plea has when- Judiciary always rejected ever events on day another could be seized upon.

The sole circumstance is that at remaining same session the Legislature also which under- adopted chapter took to exclude from 1951 revision sale of perishable agricultural horticultural this, Erom it is products. argued must have Legislature intended the 1951 revision to continue. But that circumstance is In equivocal. fact chapter passed four May 25, after days passed it chapter and it well be that both Legislature sent bills Governor only because it did not know whether he would 119. sign chapter More- over, we are not required choose between chapter 131 since chapter supersession the revision by chapter 119 also accomplishes specific result intended by chapter 131.

Hence we find no justification for from departing the fundamental rule the later expression of legisla tive will shall prevail over an earlier one. We of course speak cannot with supreme confidence in the unusual circum stances us, before we feel but sustained by the thought we perchance intent, misconceive the legislative that body will correct our error quickly without appreciable loss in the interim.

We conclude accordingly chapter repealed and superseded the inconsistent policy contained in N. J. S. :171—1, 2A 2 and 6 to 12.

This us brings whether question chapter thus viewed as an statute, independent vulnerable the con- stitutional attacks before us. We have indicated already is not. We shall now detail the reasons.

A. Does offend the ban against Church- State union? We discussed above the relation between an the public pursuits surcease from routine

opportunity out have health, pointed and welfare. We morals safety, of one’s pursuit regular Sunday prohibiting statutes that of be devoid religious have been found to calling generally is far less sub- 119 The to challenge chapter orientation. in its operative 119 cannot be identified chapter stantial, no religious We know of any with sectarian tenet. provisions activity to the Sunday limits its edict against order which 119. of items categories prohibited by sale of the five act for a face of the Church- The sole basis on the to “the observance is reference in the title State challenge in section week” and the statement 4 the first day an additional “to remedy act shall be construed as that the Plaintiffs stress the word observance.” secure proper Sunday of holidays, of “observance” speaks But one “observance.” it is true probably secular or sectarian. Although whether has a “Sunday” with conjunction religious that “observe” overtone, necessarily many is so since it not yet rate, At this scant evidence now a secular holiday. is a which in stamp held to statute religious cannot be The con no sectarian line. presumption terms follows does not so stitutionality yield easily.

It is true that was advocated Sunday legislation who, history subject, individuals forgetful their for the own support religious State thought proper a not turn validity But the statute does dogma. Uor, for adoption. of citizen for its validity pleas matter, Judiciary probe thinking legislators can the Holderman, Assn. N. J. Restaurant supra themselves. v. If a votes for 301). N. Jat measure page legislator (24 undisclosed, some invalid he account purpose, further inter Judiciary may to his conscience alone. not able the exercise of lawful power upon assumption fere with it to be exerted. McCray caused wrongful purpose States, 49 54, 769, 24 Ct. L. 27, v. 195 U. S. S. Ed. United 78, 95 (1904).

227 B.

Plaintiffs also the city the statute seeks to urge protect merchant his Defendant fact against highway adversary. filed voluminous affidavits expressing expert opinion urban business and the value of jeopardizes selling real ratables in established centers. Plain property shopping tiffs seek invoke that the principle police power may merely be used to restrain for the competition private Paramus, v. particular 30 advantage group. Moyant Gassert, J. 528, N. 545 Central Motors v. Gundaker (1959); J. 71, 23 N. 354 appeal 933, dismissed U. S. (1956), Ct. L. Ed. 2d 1533 v. Reingold (1957); Humor, 6 N. J. N. J. Good Inc. Harper, (1951); Beach, & Bradley A. (E. 1940). But of competition problems course may generate affecting the of and if the hurt society, warrants well-being legisla the, interest, tive intervention to protect public of no the consequence concurrently solution redounds to the York, of v. benefit Nebbia private some. New 291 U. S. 525, 54 Ct. 78 L. 502, 505, 940, Ed. S. Great (1934); & Atlantic Tea Co. v. Grosjean, 412, S.U. Pacific 425-426, 772, 1193, Ct. 81 L. Ed. S. (1937); Alexandria, Breard v. 622, 626-627, U. S. 632-633, cf. 71 Ct. 95 L. Ed. 1243 (1951). However, are not upon we called to consider whether objective 119 is sustainable the were chapter thus economic. The reason is that we have no way of that such knowing was the The statute itself purpose. does not reveal it ex- or the by necessary implication, and pressly fact that eco- advocated nomic interests legislation that defendant affidavits theme introduced does not demonstrate was thus motivated. Legislature Gundaker Central Gassert, J., v. Motors at supra (23 page 83). The act within the police power upon thesis being discussed in wit, below, immediately protect health, “C” safety, morals and welfare from unreasonable interference with the relief everyday from public to find

opportunity suffi- tensions, is no need warrant debate there or objectives. of ciency conjectural

C. have the evil to which already We described earlier addressed. The Constitu Sunday legislation tion, course, to that Legislature of does not confine the may the evil. The take different conception of and find evil to be an impairment view the scene welfare, because of health, morals and not public safety, labor, but rather because impact uninterrupted majority interference efforts of the vast unreasonable with the of the citizens to find from pressures surcease for that work week selected them day generally is the of the evil which reasonably Such purpose. conception terms of 119. be inferred from the title and may of what The reasonableness of classification not be sold be in the may judged light must may the evil. that basis, classifications conception Upon would inadmissible where the purpose be made which of rest. The compel day body may upon is to legislative such considerations classify operations upon that approach traffic, other noise, bustle, as the or and weigh amount or but rather necessity charity, those factors against, public. or convenience to the Hertz utility relative See Orange, Washmobile South N. J. System supra (41 122-123). at Super., pages Holderman, discussed in power classify

Here the broad J., comes N. at into In pages 300-305), play. supra (24 a to the we showing absence of compelling contrary, assume, be, as the facts may reasonably must with found the items dealt are chapter Legislature others, and all above are which, beyond provocative ones the elimination of their sale problem; of the undue interference with the will remove the opportunity

229' citizens relief from the stress of everyday pursuits. thesis, stated indeed Upon hit the Legislature may evil where it is in felt most its for a reasonable balance quest of the interests involved. It as may, it did Gundaker Gassert, Central Motors v. N. J. thus supra 71), (23 proceed in a field, sale of single automobiles, without compul sion to search out the evil everywhere. Amodio Cf. York, Board Commissioners W. New Ct. (Sup. as in the case 1945). may, of chapter attack the a problem in wider if finds sphere it the evil there warrants in the interest. The legislation public Legis lature may proceed experimentally, cautiously, step by step, until it finds the solvent. We must classification uphold unless is demonstrated to plainly The capricious. is not made required showing merely items by contrasting which may not be The relative sold. utility such items bemay wholly unrelated to the of Sunday degree which their sale relief activity incites to the which ban them will Uor it be upon accomplish. would fatal or of construction should incongruities problems develop areas. The does fringe Constitution not demand mathe States, matical Boyce Motor Lines v. perfection. United 337, 340, 96 L. U. S. 72 S. Ct. Ed. 371 (1952). is It worth that the Judiciary not con repeating cerned with the sense of a statute. matters good Policy are the exclusive responsibility of branch legislative A as a government. his judge, private citizen, may express at the opinion member of this court had polls, every to do when 119 was opportunity on the ballot. But the issue now us is one before wholly power act, upon that would inquiry judge if his usurp authority personal view intruded policy his deliberations.

D. Hence the trial court denied properly plaintiffs’ motion for summary judgment. proofs advanced did

230 How not overcome presumption constitutionality. the for ever, we think it was error motion defendant’s grant motion, on the Eor the of that judgment pleadings. purpose the classification that allegations complaint fact is and denies be accepted must arbitrary equal protection Taxation, as true. Park Board County Ridgefield Bergen The parties carefully stipu (1960). not to defend lated that defendant’s affidavits would apply ant’s difficult for plaintiffs motion. indeed be may they may maintain their burden of but heavy proof be denied an try. opportunity

IY. provisions issues relate to the referendum remaining chapter 119.

A. im act “shall effect provides Section take county shall not mediately but become operative unless and voters shall determine county until the shall referendum held this act the same pursuant therein.” apply an dele-

This, it is first constitutes unauthorized urged, Plaintiffs approach gation legislative power. from several directions. problem phase chapter One of the attack presupposes 1951 revision. enforcement depends upon provides under- Upon approach, plaintiffs say took to leave to local decision the whether question established state-wide shall be enforced illegality policy correct, If would were referendum locally. premise such an odd one. Indeed unusual character of which it problem referendum and the constitutional have already buttress the conclusion we present simply reached that of the revision. superseded policy issue need not consider the in those terms. We therefore leave to is may Rather the issue whether the' Legislature of the provisions local whether option question a self-contained 119, policy, statute with independent shall in the several counties. operative be in this State. has a history

The of referenda subject long con merits of the no to review the It would serve purpose Paul v. earlier cases. debated in fully flicting positions & A. In re 1888); 585 50 N. L. County, (E. Gloucester J. & Cleveland, L. 188 A. 52 N. J. (E. Petition Mayor, L. 62 Ct. (Sup. v. N. J. Hoagland, Warner 1889); 51 72 92 N. (Sup. Michaelson v. Wall J. 1888); Township, tech of that validity it to 1918). say Ct. Suffice 1844 under the Constitution was well established nique doubt it. Constitution 1947 casts nothing effect operative plaintiffs, they argue As we understand subject if the only be left to local decision statute may con from state-wide is of local as matter one distinguished Newark, 467, N. cite v. J. Wagner (1957), cern. They re are inherently for that certain matters the proposition law the rent control for the alone served State (actually see option; for local provision there involved had Harner, cert. 500, 16 N. (1954), Jamouneau 99 L. Ed. 1241 580, (1955)). 75 Ct. denied, 349 U. S. we find suggest, the limitation which plaintiffs Granting be may the act before us. Although no impediment for legislation, rest is the basis compulsory argued State, is of uniform concern throughout the problem in chapter thesis we have found on the certainly yet well exist in terms of quantum, local differences the oppor and its activity impact upon and nature of the is generally for relief from the routine. tunity regular to deal directly held that municipalities may empowered Woodbridge Auto-Rite Co. v. subject. Twp., with the Supply J., Jur., Sundays and at 50 Am. (25 page 193); supra McQuillin, 804, 805; 6 Municipal 6 and Holidays, pp. §§ We see no 24.189, 768. 1949), ed. (2>d p. Corporations § for inappropriate reason why subject constitutional Legisla- must assume the local decision We by referendum. for local a reasonable basis ture, discretion, in its found preference. selected

And that the Legislature it does not matter unit as the rather than the county municipality fact, is the The reason doubtless expression. popular munic earlier, transcends problem which we alluded in Paul v. the unit selected lines. ipal county prob in which the constitutional County, Gloucester supra, also Noonan v. lem was at See explored length. great Hudson, & A. Nor 1890). County (E. N. J. L. in the fact that do we see constitutional difficulty violation, statute visits penal consequences upon making the statute it a offense. For disorderly persons example, a in Paul denounced violation County, v. Gloucester supra, aas misdemeanor. Michaelson v. Wall Township, supra See L., at 78). N. (92 page if the

Lastly plaintiffs say Legislature directly a in less than all of the prohibition counties, legislated IY, a 9 of law would be one within Art. special par. § Constitution and a denial of equal protection Stale and hence same result not be achieved may by laws a statute local for dependent upon option operative effect. The same was considered and objection fully rejected L., Paul v. Gloucester N. J. at County, supra (50 pages Harner, J., and Jamouneau 607-609) v. at supra (16 Newark, 42 N. J. page 521); Wagner Super. cf. 214-215 reversed on other 1956), Div. (Law grounds, N. J. 467 (1957).

B. prescribed Section to be question placed upon words, in these the ballot “Shall Law Sunday Closing c. within this Plain county?” (P. 119) apply tiffs first that a “Yes” vote have meant say might some that shall be and a “No” permitted vote the selling an election opposite. We cannot strike down the result of in the electorate and linguistic assuming shortcomings assumption. confusion that hypothetical mounted More Clos- “Sunday the further claim that impressive was an Plaintiffs ing” say “Sunday inaccurate description. one, means rather than a Closing” complete closing partial which hence the affirmative have received support would scope have the other the limited gone way had prohibition question been stated. No doubt not model of more informative would Ear clarity. have been a that the ban was limited description revealing to the sale of certain Yet “Sunday Closing” commodities. does not mean is shut down. necessarily that everything no would if the Surely one act description question left work A law necessitous and recreations untouched. barber fall closing shops would within generic term of a as that term is “Sunday generally law Closing” used. Hence we cannot assume to mislead the purpose voters or infer were in fact misled. confidently they rate,

At we are satisfied the comes objection too late. time election, is before the protest not, as after the here, event. Elections are solemn events of tremendous We reiterated public significance. recently in the absence of malconduct or fraud a concluded election will not be voided ballot irregularity unless it can said in all human it inter likelihood fered with full and free of the will expression popular and thus influenced result. In the Matter the Alleged Error in the the Ballot the Recall Elec Preparation of for Hackensack, tion in the City J. The (1960). facts do satisfy not test.

C. The is whether it was remaining question arbitrary to provide 2,500 for a referendum on petition signed by of a voters rather than a fixed registered county by per- is not contended in the county. of the total voters centage is low is that it is Rather the point the number too high. in the more exacting more counties and populous sense, is to be discrimina- smaller ones. In that it charged cannot be said But approach tory. legislative as more strike one approach may because another arbitrary soundest, The does not demand only Constitution logical. is not the test of wisest, and the best. Poor judgment invidious in the legislative We can find invalidity. nothing More- breach of constitutional barrier. decision no not kind which does over, objection go this is the again, will and popular the fairness of the expression when first after the elec- hence is unattractive wholly urged has been held. tion

Y. that chapter We conclude that the accordingly presumption and hence the trial 119 is constitutional not overcome motion for plaintiffs’ summary judg- court denied properly affirmed. But as we pointed ment. That order is therefore should in III D above the trial court not have granted out on the pleadings. defendant’s motion Such judgment truth of the in the ad- a motion assumes the allegations here the in the complaint versary’s pleadings, allegation classification is denies statutory arbitrary equal Plaintiffs are entitled to proceed the law. protection a trial of that issue. order granting judgment reversed, therefore matter remanded for further inconsistent with this opinion. Costs to proceedings abide the event. I concur in the result reached (concurring).

Burling, Mr. in the filed Chief Justice Weintraub. I opinion to file this appropriate general consider statement of in this matter. views my N. J. supplement

Considered as S. 2A :171-1—the Law enacted as the 1951 Closing part basic

235 1959, 119, L. c. act in is unconsti question, revision—the law considered, reasonably So the 1959 must be tutional. achieved N. J. S. the ends to be by related to sought e., from the market 171-1, “provide escape place 2A: i. to Co. v. alike.” Auto-Rite Supply for merchant and customer In the Auto- 188, N. J. Woodbridge Twp., (1957). context, out, case, had in another point Rite I occasion to the same by applying principle but nevertheless way at that an in the instant this litigation point, applicable sale enu of certain prohibiting only ordinance in harmony general merated items could not exist with there held It was Sunday closing. state of overall policy “makes in scope that the limited of the ordinance question e., served,” a i. of the declared title and to be purpose sham of rest. Auto-Rite day Supply the end of achieving general at In the same 196. Woodbridge supra, page Co. v. Twp., in case that involved the Auto-Rite manner ordinance related the State reasonably policy could not be said to be to in of that and hence violation overall closing here, in c. cannot the statute policy, question to sought be said to be related to reasonably purposes same which it, purposes be achieved by hypothesis 2¿L the con directed, :171-1 is and hence violates N. J. S. must bear classification stitutional provision legislative relation purposes legislation reasonable New Ass’n Jersey are contained. Restaurant they which Holderman, N. J. there Assuming, (1957). .the 1951 fore, supplement law is but re fall as not revision, reasonably the former must being of its enactment. purposes lated to tending That the 1959 law cannot be sustained as indicates, 2A :171-1 how- of N. J. S. purposes fulfill has ever, policy in fact the discarded in its place policy, latter act and another substituted hand, first. On the effect different from the one radically all 2A was to preclude “worldly of N. J. S. :171—1et seq. certain stated exceptions or business” with employment the act and others a permitted referendum within munic- by whereas, ipality, hand, on the other the statute present only the proscribes sale of five general of Such types goods. a difference in may effect be attributed to a logically only difference in underlying difference which policy, naturally leads the to re- conclusion the act has been prior pealed by therefore, The implication. remaining question, is whether stand, the Laws chapter of isolated, against the it charge violates the equal pro- tection of the law.

A parenthetical in note is order at this That the point. intended N. J. 2A:171-1 repeal et seq. does not that all imply municipal ordinances affecting Sunday are henceforth closing to state contrary policy. power of municipalities to act in this field exists not by virtue of N. 2A 40:48-2, J. S. :171-1 et but B. 8. the seq., by omnibus of the provision Home Rule It is Act. apparent, therefore, this in decision no manner affects existing or future municipal Sunday closing ordinances; fact, it eliminates the restrictive effects which the state statute im posed on those ordinances. Auto-Rite Co. v. Supply Wood bridge Twp., Whether L. supra. c. or L. c. 131 imposes another restrictive policy municipalities regarding Sunday unanswered, must remain closing how ever, until litigation presents the issues to this court. is view that my Laws 1959 is not void on its face for failure to provide persons affected by with the equal protection of the laws. There is no apparent economic hardship imposed on the vendors articles the sale of which is Sunday proscribed by the statute inasmuch as the demand for the items specific cannot any appreciable be satisfied degree elsewhere since all such vendors within area geographical effect of the statute are prohibited from the desired selling articles. Cf. Gassert, Gundaker Central Motors 23 N. J. 71 (1956). That it might be more profitable for the affected vendors locate outside the area in which the statute has effect is no importance considering constitutionality not And it is on the apparent act. face statute that it reasonable means valid achieving legis- lative to free the from traffic highways by caused goal: commercial extent sufficient to allow activity their use persons unobstructed seeking relaxation. case,

The Auto-Rite not to supra, is In that contrary. case, the ordinance sale of certain prohibiting enumerated to be goods required related to the state of overall So policy related, ordinance closing. case, not stand. however, could In instant the statute in need be sustained on the question presumption that it intended is to secure general day of rest in- through Indeed, will chapter 119 be activity. sustained related to reasonably and, valid legislative purpose, above, as stated would such to be the in appear situation the instant case.

Euancis, J. (dissenting). “ word,’ Humpty Dumpty just said, I ‘When use a ‘it means mean, what I choose it to neither more nor less.’ question is,’ Alice, you ‘The said ‘whether can make words mean many things.’ so different question is,’ Humpty Dumpty, ‘The said ‘which is be master— ” Carroll, Through that’s all.’ Lewis in Alice Wonderland and the n Loohing (Grosset Dunlap, pp. 1946) 239, & Glass 240. have

My colleagues majority outdone Humpty Dumpty. By process have judicial legerdemain, they caused words in L. c. 119 2A et S. :171-5.8 (N. feat, seq.) disappear entirely. Having that accomplished then they proceeded, by flicking magical super-legislative wand, Law, to repeal the basic N. J. Closing 171-1, 2 6-12, existence, 2A: whose in substantially form, similar back in traces Hew 1675. Jersey During 300—that intervening years—almost legislation, although times, revised to some extent in more recent has survived direct attacks and at In many repeal. attempts pursuit Legislature, public duty, to be its what it conceived under the has been assigned the lawmaking power

to which Constitution, Now comes those efforts. has always rejected in- did the Legislature a declaration that our court with refused to do di- what it has and by implication directly I have the doubt slightest all do not over those rectly years. usurpation a clear the decision constitutes all the I that of Nor do doubt authority body. in this members proceeding, interested persons upon learning astonished will be the most statute and did basic repeal intended repeal they remedy an additional it and by providing by supplementing in aid of its enforcement. the magic As the effect of there is more than

But this. Wonderland, itself, things as Alice said further diffuses repeal With the adjudged and curiouser.” “curiouser get c. enactment, new statute, of the basic Law” a “Sunday Closing called expressly which a Sunday open- into metamorphosed has been Legislature, Every is now of existence. law. The old statute out ing activity may engaged and industrial of commercial phase restraint, excepting only without legal in on Sunday e., act, i. clothing five items banned sale of the materials, lumber supply or apparel, building wearing office and furniture, furnishings appliances.- household and no referendum or the where there was And, in the counties down, the court’s inten- was voted presumably restriction at all exists any longer. is that no limitation tion note that specifically at this point be useful may It cover the manufacturing does not 1959 measure the of the New industries, Jersey in which construction 46.9% Others, See, FlinJc and The is employed. labor force A the De- Jersey, Report Prepared New Economy of Economic Development Conservation partment 139. It does not include Jersey (1958) New State of industries; service nor does work in the who the 10.2% New labor which is Jersey all of the it affect 17.8% in wholesale employed and retail trade. It omits many kinds of retail stores in the sale of a multitude of engaged items now freed for The Sunday disposition. Statistical Census, Abstract the United Bureau States (1958), 0., Washington, 836, 837, reveals that in pp. D. the entire United States less than half of those in retail employed establishments work in materials, furni- clothing, building ture, and stores—the appliance ones within the statu- only tory Thus, category. estimated that only ap- proximately the New labor force are sub- Jersey 8.9% jected to the ban. And on that recalling referendum as to whether the 1959 act should in a apply particular on the in county appeared ballot 15 out of only counties, our 21 and that it failed of in three of adoption them, it becomes obvious that of workers percentage affected is even less than Consequently, prescribed 8.9%. of rest is day provided for these relatively few workers be- cause their cannot sell in employers articles the five cate- No one gories specified. disputes prior to 1959 there were violations of the Law long-existing Sunday Closing and that enforcement officials closed their eyes them. can Nor it be denied in few past there has years been an in upsurge business activities. It is equally plain vast of citizens majority respected ob- served the law and took advantage one of day rest and relaxation. To open for business floodgates activity as this has court done under the of enforcement guise will implied reduces all legislative conceptions of Sunday as a of rest to a mere day shadow. history Sunday closing regulation appears

Chief Justice’s and need opinion not be repeated detail here. However, some additional comments seem necessary. As there, noted the first comprehensive after legislation Bevolution enacted in 1798. Paterson’s Laws (1800) 329, et all seq. expressly repealed laws on prior 21. A few subject. Section amendments were adopted thereafter down to when Justice Minturn of the former changes. delivered address suggesting Court Supreme to in the The 1926 Commission referred None was made. and bills of the Chief Justice proposed changes, opinion The them. None passed. introduced to accomplish were law of the entire State body statutory revisors of the a few act with but changes 1937 preserved existing B. 2:207-1 to 30. The S. approved. wording. Legislature on Revision of created The Committee Statutes Advisory revise Title 2 of the Revised lawmakers in 1951 to Statutes, 207 be deleted entirely, recommended that chapter Revision Title Tentative obsolete.” “Repeal, saying, declined. Chapter Part I. Draft, Again Legislature form and incor- in much more concise 207 was rewritten 2iL:171-l et Section 1 said: as N. J. seq. porated except necessity employment business, worldly or works of “No practiced by any person performed charity, within or shall be Sabbath, day week, or first this state on the Christian Sunday.” designated commonly called and hereinafter not re-enacted. clause was The penalty met with no efforts to about bring changes Subsequent 1958. That until the adoption success of sales as same very categories enactment prohibited consideration. Its application being the act under does counties, was declared unconstitu the 21 limited to Tp., Super. (Law v. Union tional. Sarner . identical format of that statute was with Div. 1959) of the three counties for exclusion except one the present 119, L. of the referendum addition in chapter and the to the old act “supplement” too provisions. as an “construed additional remedy.” to be it too was required The, material is admittedly historical somewhat above But majority opinion. emphasis of the repetitive is to to the point profound reluc- The purpose different. to wipe out the basic part on the tance It is worldly employment. also against Sunday prohibition that no public problem attention could bring designed

241 have been more in the consciousness of the lawmakers recent than this years one. Elaborate were held hearings at and Trenton aof wide of views were protagonists variety heard. say To in such an in 1958 and atmosphere if 1959, had formulated an intent to Legislature repeal law, the old it would have left the matter to implication rather than express is unrealistic to the least. language, say us

Let consider then the conclusion of the major startling ity. This must be done of funda against background mental tenets statutory construction. The sole constitu tional function judicial branch of the government in this area is interpret to in accordance with the plain of a and statute not some language supposed unexpressed intention. There is no to authority legislate. Dacunzo v. 19 N. J. 451 Edgye, 443, We are (1955). required to assume that the knows Legislature law existing statutory and judicial decisions it. new When interpreting regula tions are adopted, the is en Legislature presumed to have visioned the whole body law to have acted with regard to it. a cardinal Consequently, doctrine is that repeal of an is existing intended, statute the lawmakers should rather say so than leave that result to expressly implication. Eor reason, it has come to be traditional to refuse to anof earlier law recognize implied repeal by later one unless the intention to that result produce appears reasonable And beyond doubt. be added the rule special has application statutes of public Federanko, v. 26 standing. ; State N. J. 119 long (1958) Swede v. City Clifton, J. 303 (1956); Asbury N. Park Park, Press v. City N. Asbury Yarn (1955); Moines, 991, v. City Des 243 Iowa 54 N. W. 2d 439 Sutherland, Construction (1952); Statutory ed. (3d Jur., Statutes, 2012, 2015, 2033; 50 Am. 1943), 546. §§ § After the establishment of penalties for sale referring items, the enumerated title of * * “* says specifically supplementing chapter of Title 2A Jersey of the Neto Statutes." (Emphasis added.)

24:2 a comple an act its character very by A supplement Stein, Edwards act. original to its antecedent—the ment far as 1892 As back 1922). 258 (Ch. J. Eq. Justice Beasley: to Chief According this recognized. must, very nature, laws, “Supplements from either tlieir antecedents, implication, expression to whose scheme refer to their or legislation, they complements; designed since the all are state, has constitution of the been of the amended establishment Loving, Bradley theory.” Co. & Currier on this constructed 1892). (Sup. 228-229 Ct. N. J. that voted .idle to the who suggest legislators It would be not aware of completely the law under discussion were for when used it. There they “supplement” the connotation the entire to demon- in the nothing language an used it as in- they doubt strate reasonable beyond law an old repeal cident of intention to implication. on the other subject,

If there is doubt any lingering J. 171-5.11) eradicate Section S. 2A: (N. it. provisions says: remedy shall be construed as an additional to secure “This act directors, managers, officers,

proper observance and the personally agents corporations employees of shall he liable for or provided.” (Emphasis added) penalties hereinabove as to the of “an addi- significance No one needs assistance did not Legislature simply tional Note remedy.” an additional remedy.” “This Act shall be told say: our it would be under duty tripartite whose Judiciary, act, to construe it system government interpret But the effect of the remedy. majority an additional any significant is to all those words of con- opinion empty tent, legislative and hold them be consistent with intent the act which were to constitute an addition. repeal they as an addition What did the intend to include aware, course, that or a It was complement? penalties revision of the act failed to include specific old in aid of aside for a moment Putting enforcement. a penalty whether absence of clause renders en question as the seem impossible, majority forcement to suggest, “an of the inclusion of additional significance remedy” lawmakers, 1959 is into The brought sharp focus. for rea with itself, sons which the cannot concern in Judiciary tended to impose specific additional on merchants penalty sold of the five items on any who Such designated Sunday. violators are declared to be disorderly persons subject offense; to a fine $25 for the first not less than $25 second; nor more than for the not $100 less than $100 nor more than or, court, $200 in the discretion 30 days both, third; nor jail and for the fourth or each offense, less than subsequent not nor more than $200 $500 or, in the court, discretion of the less than 30 days nor more than six in jail months or both. Each sale single to any one customer is constituted separate distinct violation. And “in addition” to the stated penalties upon four premises upon convictions which the violation must occurred be deemed 2A :171-5.8, nuisance. N. 5.9. opinion these majority says penalties are not an additional because the 1951 remedy revision is a “toothless declaration” and so no existed remedy for viola tion of that act. Here the again court puts aside prin basic ciples the although Legislature was obviously aware of them. prior to 1951 Long violators of the frequent Sunday Closing Law were indictable as punishable operators of a dis orderly house. Our former Supreme Court so held in State Reade, v. 98 N. J. L. 596 Ct. (Sup. 1923). particular Of interest is the statement of the court there that a such con viction be had even may a though single violation would not constitute that crime. 60 years Over earlier, the same ruling Williams, had been made. State v. 30 N. J. L. 102 (Sup. Ct. The Williams 1862). case was described in 1880 by the Court of Errors and Appeals “the representing unchal See, law of lenged State, this State.” Meyer N. J. L. 145, & A. 1880). My research (E. shows that the rule status, present unless

still same occupies pristine that “We cannot in the opinion statement Chief Justice’s house disorderly approach,” find a for the reasonable basis Ap- these old impliedly precedents. is meant overrule to in held on the days subject earlier no doubts were parently to level, Judge Depue’s charge at enforcement witness in a in- Essex 1887 in situation County the Grand Jury said, He among on Sunday. the sale of volving liquor things: other illegal disorderly place is in law be a where “A house defined By

practices habitually decisions are carried force of on. Judicial disorderly place category state, house of a in this comes within the although by law, habitual such reason the habitual violations regulating simply of the laws violations of law are infractions although liquor, lie for indictments will not the sale (O. 1887). specific selling.” 116, & T. 10 L. J. J. acts of would be My colleagues suggest Sunday selling might prosecuted to learn that startled with its statutory punishment such an indictment possible $1,000 fine. a maximum imprisonment of three years the law and are know Legislators presumed I doubt it. house remedy disorderly prosecution of the availability Justice Heher’s dissent commented specifically court, in this Auto-Rite recent ease Sunday closing 25 N. Woodbridge (1957), Co. v. Supply Twp., adoption 14 months just prior decided Act. present c. substantial prototype indictment, this Further, conviction under type invested with even more discretion than sentencing judge sentence, under the 1959 law. He may suspend he is given or fine him from $1 the offender on probation, place to three $1,000, impose day or he term of one jail hand, fixes On the the new supplement other years. with upward repetition minimum fine mandatory graduating is offense, discretionary. sentence although jail maintainable, are Moreover, proceedings against criminal 2A under J. S. :130-1. Under sellers persistent where the law is statute, place that or “Every building Berman, a nuisance.” In State v. violated is habitually case, the Williams 1938), supra, 120 N. J. L. 381 Ct. (Sup. to a conviction thereunder. authority support was cited as etc., the indication from plain Mayor, Alpine Again, Brewster, is that the 7 N. J. civil Borough (1951), available proper parties is also remedy injunction halt of the basic 1951 act. repeated infractions to, and the referred

As the result of these cases statute that when the “additional expression it is inconceivable act, was written into the 1959 the did remedy” Legislature that was intention part unexpressed not mean it or it the 1951 It is likewise to conceive impossible act. repeal with an implied that term as consistent intention being the latter statute. repeal im Additional the persuasive proof against finding is N. J. S. repeal easily discoverable. Section plied 2A :171-5.12 that the act shall not become provides it until the voters thereof operative any county adopt if Thus, referendum. does not by question go ballot if it is defeated after by people or county being thereon, mandate placed specific Legislature ban on sales of the five items is statutory operative. Section (N. 2A:171-5.15) specifically that “if of all such votes shall cast majority ordains be this remain provisions of act shall against question, in such be said that inoperative county.” possibly Can which, a statute solemn order of the by express lawmakers, is not at the time in nine applicable present counties of State was intended them to impliedly Law? repeal underlying Sunday Closing cannot overlooked had strong believe that reason to additional sanctions for particular violations were the new act would not proper, operate an implied one, of the old and that repealer repeal desired, express to that effect language to be em- ought The precise was raised in West ployed. question Orange v. 246 N. J. 533 Ct. There

Jordan 52 Corp., Super. (Cty. 1958). act, the was advanced that the 1958 which it argument must remembered effect and was immediately be took not result, a favorable referendum was intended contingent upon the basic The impliedly repeal Sunday to law. contention the court rejected, saying: comparison “A of the two statutes leads to conclusion the that Chapter argument this is without merit. of the Laws 138 1958 of specifically chapter supplement states in its title that it is a to 171 Jersey 2A of Title of the New Statutes. It inserts in the latter entirely section, new which bears The statute the number 5.1. prior Further, had no section thus numbered. the new act statute way provisions chapter not in limit or circumscribe does the 2A, merely provides penalties of Title 171 but sales are made specifically of those of merchandise in items enumerated seq., penalty provisions 2A 1958 act. N. J. S. :171-1 et contains no perhaps Legislature, dealing in with the items enumerated 138, required special 1958, L. in c. believed that these items treat imposed penalties specific ment therefore for the sale of such Sunday. respect items on merchandise; It has done this with to other items example, the sale of new and used automobiles. See, :171-1.1; Gassert, N. J. S. 2A Central Motors Gundaker (1956), appeal N. 71 denied S. J. 354 U. 77 Ct. Legislature Ed. 2d most that can be said is that 1533. specifically decided to interdict the sale of certain items of mer change public policy respect chandise but not with to the sale enumerating specific of other merchandise. The items in the exempting provisions statute should not be construed as from the Sunday closing business, of the statute all other the absence legislative expression some clear that effect. There is no such Super, page apparent intent statute.” at 539. True, the is drawn trial opinion from quotation court from It which no was taken. not be appeal however, amiss to the short tenure of that say, during he judge, proved himself of the bench. worthy Shortly thereafter the same court ruled again against claim Store, West v. Carr’s implied repeal. Orange Department 53 N. J. Ct. These two cases Super. (Cty. 1958). were decided month the second one six apart, about months un prior adoption chapter 119. is extremely likely members of were unaware sales ban was of these holdings general their latest enactment. abrogated connection, the Laws Eurther in this when Governor, he not only expressed 1958 was signed by constitutionality subsequently doubts as to its (which some also said: to be well but he proved taken) any was what effect it “This bill enacted without indication subject. existing In course shall on laws on the same the have clarify phase amendment, of of it be most desirable to this would Aug. 1958, p. Release, 4. the matter.” Governor’s Press followed unconstitutionality declaration of judicial later c. v. Union and Tp., days (Sarner supra), com L. 1959 was In the face of the Governor’s enacted. the ments, had of any repealing if the intention legislators said law would have Sunday they certainly expressly old have the to implication. so in new act and not left matter lead inexorably of above expressed All the considerations by found the conclusion that the implied repeal to by Legislature. Surely was not intended majority to in of of evidence be said all spite cannot that a reasonable such is demonstrated contrary, beyond repeal therefore, Sunday In my judgment, general doubt. :171-1, N. J. 2A revision S. closing regulation, full and remains in force not affected the 1959 law by was Quite not think were apparently legislators and vigor. before adoption four days in terms of because repeal, ing The latter act 131. chapter they passed chapter law, observance amended the basic specifically sale of :171-2, agricultural 2A to remove perishable bills were from the ban. Both sub products horticultural 119 was Chapter to the Governor signature. mitted 18, with 17 and 131 on June chapter him June by signed as irreconcilable con any comment to possible out further the long-standing Sunday between chapter flict if implied repeal No one would suggest statute. et were there would seq., contemplation, 2A :171~1 have been need sale of expressly authorize possible mentioned. would products Adoption chapter all remove to their obstacles sale.

In for the conclusion reaching announced, majority irreconcilable conflicts between argues policy appear 2A :171-1 et and the 1959 Those seq. expression. legislative are conflicts more chimerical real. The than policy old provide act and is of rest on day all inveigh against invasions of it works of except necessity and charity, sale of and horticultural perishable agricultural products virtue the 1959 and certain (by amendment) articles, other local referendum. The approved by majority strains itself to opinion demonstrate such utter repug- between that aim of nancy policy and the chapter e., result, to leave but one i. intended repeal the former latter. But their analysis the ultimate led them the conclusion that the purpose 119 in the sale the five kinds of banning goods is to as a protect of rest. Thus Sunday day the statutes common, have a a dissimilar, objective. It follows that only the the difference is addition specific which penalties the Legislature should imposed felt be for the violations described.

aAs on this word closing phase matter, mention must made be of another circumstance. The significant title the page majority opinion lists the names of the numerous able counsel who in appeared various in the capacities pro- All of ceedings. them furnished us with exhaustive briefs. aHot one contended single 119 had impliedly the repealed statute. long-standing Sunday fact, In the who attorneys dealt with the without question argued qualifi- cation that no implied repeal existed.

If basic law has not been impliedly re- what is the status of pealed, c. under discus- sion? It is unconstitutional and the majority opinion re- little space express to quired conclusion. Such result had to be reached to just because select these five retailers and to them to all subject different from other penalties sellers is goods clearly discriminatory and offends against of our requirement charter for organic protection equal of the law. my then turned their Unfortunately, colleagues determination of into unconstitutionality springboard for a declaration that had an in- unexpressed tention to repeal statute it was to undertaking comple- ment. That result is bizarre because the explana- proper tion for the difficulty and of result that legislative should follow, in is my judgment, very simple. The legislators just made a mistake. believed it would lawful They out the dealers in single for additional and question more than specific penalties which, those as has been indicated above, could be meted out to other any observance violator. But the cure such a mistake in the Legisla- That alone has the body ture. constitutional to cor- power rect it. The judicial branch should not government in that area. in trespass would be unsafe our democratic society permit Judiciary, removed it is from the electorate, to declare the of a repeal statute even though think judges or not en- might unpopular, being forced some areas or because believe it they might be unsuitable economic conditions. existing Suther- land, supra, 2034. There is no tragedy present § error. Neither legislative branch makes government our pretense should be infallibility co-equal allowed to decide form the correction of its own errors should take.

II. In view of the agreement by the entire court basic statute is not repealed, impliedly chapter is invalid because the classification is unconstitutional face, its no will served purpose be in further discussion of that subject. therefore, At this juncture, the case should end; declaration of unconstitutionality should be made and the of the trial court should judgment be reversed.

III. statute in- The validated invalid majority having to discuss one, a valid it remains for dissent validating standing this chapter whether the survivor alchemy, of has The that alone, question is specific constitutional. isolation, offend 119, considered chapter is: does emerged Federal and State Con- clauses of the equal protection ? stitutions majority accepts the members opinion of to protect 119 as desire

motivating chapter factor course, if the statute has as a of rest. Of basic day time in almost 300 for the first impliedly repealed, been New has longer any express general legis- no years, Jersey worldly lative in aid withdrawal from provision of Sunday A rest is ordered for those who employment. day only sell, in the or who are selling, employed are business is limited only enterprise the banned and then goods, Thus, 119 is in them. idea dealing rest when it designed protect day supportable items closes which sell the only partly places specified there, the sale a multitude of other articles permits but when all of commercial up activity, it other opens types To within itself its own say people contains negation. are released mundane are pursuits now for going who rest, and seek only their new license recreation and ignore relaxation, And to find support is sheer speculation. five in the goods discrimination classes idea against at serve to strike the evil of interference with may most, is felt where evil to use tranquility threads for the purpose. gossamer Even at the risk of further laboring point, elaboration of five classes of articles is prohibited: seems advisable. Sale apparel, wearing (2) building lumber (1) clothing furniture, materials, home or business fur- supply (3) (4) household, business or office All nishings, appliances. (5) manufactured or processed these factories and elsewhere Sunday; Likewise, on sale is all only banned. made, of the myriad other articles be advertised and may A sold seven week. few them days be named: may cosmetics, toiletries, hair drugs, perfumes, preparations, and automotive and shaving equipment supplies, supplies accessories, watches, clocks and and leather jewelry, luggage goods, optical supplies, books, school and stationery supplies, records, instruments, musical radios for automobiles but not offices, for homes or yard make goods (to clothing, drapes, etc., which completed form cannot be and sold), power tools, cords, hand fuses and tools, power garden paint, power mowers, tobaccos, antiques, paper ma- paper products, metals, chinery, materials, and waste scrap magazines fuel, coal, oil, newspapers, ice, logs, petroleum products, machines, office restaurant all supplies, varieties of food and food products, medical and printing equipment, rope, supplies, dental and barber beauty shop supplies, laundry seeds, farm supplies, upholstery supplies, and garden sup- birds not bird All of plies, etc. the service (but cages), stations, businesses be may open, gasoline repair shops, laundries, laundries, tailor etc. shops, Supermarkets auto in-town and are not perimeter highways required to close. form of Every worldly be employment may pursued Houses, the sale of the condemned except items. apart- ments, be factory buildings may constructed on so as the materials do not have to be long purchased on however, Paint be day. bought, used on the course, if buildings, paint brushes are available because the sale of them is Affidavits outlawed. Two plaintiff, Harrison, Inc., from Guys assert thousands of items are offered for sale their various establishments and that the banned articles a small represent only percentage of those which may legitimately of on disposed Sunday. problem presented by chapter cannot be looked at in a vacuum. little requires very imagination to conjure aup picture of fences temporary picket around counters establishments, and sections of these retail large closing them on them public, signs with buying from the Sunday off look across cannot be sold but these articles “Sorry saying: around.” open at the other counters many the aisle or is Sunday five classes of on goods ban sale of the To all forms a license other virtually grant public to day. that and business to on operate industrial commercial status, official sanction and The statute community lends multiude and to the financial advantage actual recognition tradi- the are no restrained on longer which enterprises suggest The majority tional of rest and relaxation. day their will municipalities adopt the individual perhaps that thus breach now and Sunday repair ordinances own a that a dele- is matter common knowledge created. control, if of at all advantage of unrestrained taken gation result bodies, would in such by heterogeneous local governing ordinances, even a that confusion single county, only within and result. At the very (assuming discrimination would best amount the existence it would municipal authority), for an fact. exchange established hope doctrine, in I Considered terms of constitutional believe 119 its face is and on void. discriminatory It is with our fundamental freedoms to entirely inconsistent the particular out five classes single goods and who prohibition to select those sell them for discipline restraint, and while at the same time releasing over citizens whelming majority of other to do as they please in the field of business Sunday. The court this expressed basic thought Justice in Auto-Rite through Burling Supply Woodbridge Co. v. 25 N. J. at Twp., supra, 196: page * * * “Here the substance makes sham of title the declared pui’pose paint wallpaper and to be served. The doors and supplies freely, supposedly, stores are closed but lumber flow all peace quiet, the interest of and rest and relaxation of all merchants purchasing public proposi- and the The mere alike. statement of the Woodbridge designed tion demonstrates ordinance was objective.” to serve the stated State, 340, A. L. R. 29 Ariz. Elliot v. P. City, Gronlund v. Salt Lake 1926), Ct. (Sup. Ct. are cited 284, 194 P. 2d 464 (Sup. Utah 1948), those cases discriminatory regulation. Although examples sales prohibi exclusions from arbitrary deal with reveal tion, principle They are here. they analogous in the of inherent differences (which absence clearly as reasonable between sales men) are apparent judges and business closed prohibited, places sales permitted to remain classification permitted open, those and runs the Constitution. counter arbitrary P. 2d In Utah ordi- 465], Gronlund [113 sale of commodity upon nance made unlawful the “any week, Sunday; excepting first called day commonly to be eaten on where premises that foods sold on the sold; producer fruits and sold vegetables medicines, and produced; drugs, surgical where premises milk; and soda fresh ice cream fountain dis- appliances; confections; drinks; and bottled soft candy pensations; oil; ice; and and tobacco bakery products; gasoline bread toiletries; and and and dentifrices cigars; newspapers maga- zines; not cloth- (but including sports sporting equipment trees, shrubs, flowers, ; beer; such as products, ing) nursery and parts and and for bedding plants; equipment plants, vehicles are necessary and other which be automobiles on sold.” Sunday, may be repair purposes installed for Utah Court of out that ordi- pointed Supreme closing only a law but a Sunday nance was not general in terms certain com- pursuits limitation on mercantile of Thus, was allow such enterprises the effect as modities. banks, beauty parlors and to function on Sunday, pawnshops devoted to the sale of com- many while businesses closing and a between services com- Such discrimination modities. held unreasonable. The court went be modities toon say: bearing rule in mind the the classification which “Even legisla- closing Sunday is within the discretion of the law is based upheld clearly arbitrary, five branch and hence will be unless it is excepted. difficult of a fair to conceive reason some the items readily exceptions apparent clearly is that some are based necessity. others, considering desirability on as to But even activity Sunday, suggests promoting on fair recreational no reason why permitted itself as to their sale should be on while the prohibited. sporting equip- sale of commodities is other Neither nursery products standpoint buyer nor are such from ment they purchased though day, cannot on a or seller that be week it buyer equipment plant to use and is the intention Sunday. likely or flowers on a Neither to deteriorate tree over Saturday night depleted during Sunday. Boxing gloves or and staple bats least as and

baseball may are at butter bananas. The same toiletries, be said of dentifrices and tobacco and beer. The being commodity permit basis, arbitrary on classification it is prohibit the sale of a can of beer on and the sale juice orange 2d, page can of or a can of P. coffee.” 194 at 468. In Elliot it was said that “[in]ay the exercise of businesses or occupations prohibit legitimate themselves, and lawful within which do not inherent carry reasons for discrimination, while special allowing general similar And: occupations.” to other privileges why legitimate “[w]e it is a cannot see discrimination to close stores, stores, groceries, allowing jewelers, and shoe hardware while goods, tailoring dealers second-hand establishments to remain restriction; open appear any theory without nor does we can pawnbrokers engaged photographers conceive are works necessity charity vege- when butchers and dealers in fruit or P., p. tables are not.” 242 at 342. Lodi, Deese v. 2d City 21 Cal. P. also, App. See 2d Ct. Chan App. 1937); Sing City (Dist. Astoria, 79 Or. P. Ct. (Sup. 1916). said, As has been the result of the decision is majority’s no has a law to set longer general designed State day aside as of rest and relaxation. There is now no such No one is re- legislative recognition day. a citizen’s desire to rest so far as respect except quired the criminal such may impose laws requirement every 119, of the day Chapter only week. remaining legisla- tive is the sale of simply prohibition against regulation,

.255 of business No place on that day. certain commodities in down, normally dealing even ones to close required sell and manufacture, else may everyone the-banned goods; not achieved the laws is service at will. Equal protection Shelley of inequalities. indiscriminate imposition through 1161, Kraemer, 836, 92 L. Ed. 22, 68 Ct. 334 U. S. S. in is no issue present 2d There 3 A. L. R. 441 (1948). so palpably 119 is Chapter calls for trial. this case which it must be condemned and discriminatory arbitrary us. record now before unconstitutional on the IY. Sunday closing view is that the basic conclude, my

To law valid only et is the statute, 2A:171-1 seq., S. in harsh too If is considered now existing. regulation form, obstacle insuperable no of its aspects present some under would preserve of another which exists to the drafting recreation, and at the rest, relaxation concepts lying to the means fair recognition reasonable and same time give Sumida, 177 Ex e. See, g., parte achievement. of their v. Towery, State 1918); Ct. (Sup. Cal. P. appeal Ct. 1954), E. 2d (Sup. 239 N. C. S. 532, 98 Ed. 925, 74 Ct. dismissed U. S.

(1954). Law would reverse the judgment I

Accordingly, acts leave the and, again, until the Legislature Division hands local and county law in the execution of the authorizes Mr enforcement officers. Justice Schettino in this dissent. that he joins statement result. J., concurring Burling, reversal in Justice part—Chief part For affirmance and Hall—4. and Justices Burling, Proctor Weintraub, Schettino—2. reversal—Justices For Francis

Case Details

Case Name: Two Guys From Harrison, Inc. v. Furman

Court Name: Supreme Court of New Jersey

Date Published: Apr 4, 1960

Citation: 160 A.2d 265

Court Abbreviation: N.J.