For the prosecutor, George Rothstein.
For the defendants, Samuel L. Hirschberg (Anthony J. Armore joined in defendants' brief as amicus curiae).
Before Justices Donges, Heher and Colie.
The opinion of the court was delivered by
HEHER, J. This certiorari brings up for review an ordinance of the defendant municipality adopted on April 5th, 1944, as amended on January 3d, 1945, entitled "An ordinance regulating the opening and closing hours of barber shops."
The ordinance was enacted in the exercise of the authority conferred by R.S. 40:52-1 (k), empowering the governing body of every municipality to "license and regulate" the "opening and closing of barber shops on Sundays and legal holidays, and the hours of opening and closing on weekdays, and to impose a penalty for the violation of any such ordinance, * * *." It is therein ordained that barber shops "shall remain open" on all days of the week except Sunday, Wednesday and Saturday "from 8:00 A.M. to 7:30 P.M.;" on Wednesday "from 8:00 A.M. to 1:00 P.M., excepting the Wednesday of any week during which there is a legal holiday, when it shall remain open from 8:00 A.M. to 7:30 P.M.;" on Saturday "from 8:00 A.M. to 9:00 P.M.;" and "shall be closed on all legal holidays including Sundays, excepting Lincoln's Birthday, Armistice Day and Columbus Day;" and "on the eves of legal holidays," except as therein set forth, "shall be open from 8:00 A.M. to 9:00 P.M." It is also therein directed that "No patrons shall be permitted to enter any such shop after the P.M. hours above mentioned;" that "such patrons as shall have entered such shops before the P.M. hours hereinabove mentioned may be serviced;" that such opening and closing hours shall be prominently posted in the shop; and that a violation of any of the provisions of the ordinance shall be punishable by a fine not exceeding $25 or imprisonment for a term not exceeding ten days. The ordinance contains a recital that the governing body found the
regulation "necessary in order to protect the general welfare and health of persons working in barber shops."
Prosecutor was convicted and fined in the local Recorder's Court upon a complaint charging that he kept his shop open for business on Wednesday, January 17th, 1945, after 1:00 P.M., in violation of the ordinance.
It is urged at the outset that, apart from the specific provision for the closing of such shops on legal holidays, the regulation merely fixes the hours when they "shall remain open," and that this does not constitute a direction against an open shop at other times. Prosecutor invokes the principle that a penal ordinance is to be strictly construed. Board of Health v. Werner, 67 N.J.L. 103; Perrine Terrace Land Co. v. Brennan, 101 Id. 487. We conceive this to be a misinterpretation.
The ordinance is not perhaps a model of artistic excellence, but inartificial expression is not uncommon in municipal legislation. We think it clearly expresses an intent to prohibit open shops of this class at times other than those prescribed. The outstanding purpose was to establish the hours when such shops shall be closed to business, not to make open shops mandatory during the hours fixed for business. Defendants so read the regulation. It specifically directs that such shops shall be closed "on all legal holidays including Sundays," with three exceptions, and that no patrons shall be admitted thereto "after the P.M. hours" specified, and only those who have entered before the closing time shall be serviced. And the title so indicates. It declares the design of the ordinance to be the regulation of the "opening and closing hours" of barber shops. As in the case of statutes, the title of an ordinance may be considered in resolving doubts and ambiguities in the enacting clause. The title here suggests a purpose to close barber shops except during the hours when their operation is permissible under the enacting clause. And the declaration in the ...