This is an appeal from the Municipal Court of the Borough of Fair Lawn, which on February 25, 1955 found the defendant guilty of a violation of N.J.S. 2 A:171-1, and imposed a fine of $25 including costs. A plea of "not guilty" was entered. The facts in the case were stipulated as follows:
The defendant on February 13, 1955, in the Borough of Fair Lawn, operated an automobile service business at 37-16 Broadway, providing under one roof a complete service for automobiles, including the sale of gas, oil, etc., greasing, repairs and automatic washing of cars. On the day in question the defendant's business was open and in operation and it did, in fact, wash cars on that day. Further, that the defendant leases the entire premises, which is a piece of property having a frontage of 140 feet on Broadway and a depth of 300 feet, the premises being so arranged that the automobiles coming upon the premises to be washed are able to park on defendant's premises without interfering with the operation of the public highway; and the premises are located near the extreme boundary line of the borough limits and are not near any religious facilities. The Borough of Fair Lawn has agreed that the gas and servicing part of the premises are not in violation of the statute and no charge is made as to such services, this violation applying only to the car washing portion of the business.
On this appeal the defendant maintains: (1) that a car washing operation is a work of necessity within the fair meaning of the statute in question, N.J.S. 2 A:171-1; and (2) that the statute is unenforceable criminally and ineffective
because of the absence of a penalty clause, and therefore not within the purview or jurisdiction of a criminal court.
The court has carefully considered the facts in this case, as well as the law having bearing upon them, and the briefs submitted by counsel have been helpful in the review of both. The court will decide the two questions cited above in reverse order.
N.J.S. 2 A:171-1 is a part of Subtitle 12 of our Revised Statutes entitled "Disorderly Persons." The subtitle is composed of chapters 169, 169 A , 170 and 171. N.J.S. 2 A:169-4 provides:
"Except as otherwise expressly provided, a person adjudged a disorderly person shall be punished by imprisonment in the county workhouse, penitentiary or jail for not more than one year, or pay a fine of not more than $1,000, or both."
N.J.S. 2 A:171-1 is that portion of Subtitle 12 entitled "Disorderly Persons" which provides:
"No worldly employment or business, except works of necessity and charity, shall be performed or practiced by any person within this state on the Christian Sabbath, or first day of the week, commonly called and hereinafter designated as Sunday."
It is clear that N.J.S. 2 A:171 et seq. does not, among its provisions, contain any penalty clause. The defendant contends that because of the absence of such a penalty clause this statute is unenforceable criminally and is ineffective, and therefore is without the jurisdiction of a criminal court. With this contention the court cannot agree. It is clear that the provisions of the Vice and Immorality Act have come down, through legislative enactment and revision, over a long period of years. There have been modifications of the original statute for suppressing vice and immorality in the year 1912, and in 1933; there was also a revision in 1937; and finally, in 1952, the present law became classified under the Disorderly Persons Act as part of Subtitle 12 of Title 2 A.
When it becomes apparent that there is an absence of a penalty clause in a portion of the Disorderly Persons Act, it plainly becomes necessary ...