On certified appeal to the Appellate Division from the Law Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Heher, J.
At issue here is the legal sufficiency of certain provisions of an ordinance regulative of the sale and distribution of alcoholic beverages adopted December 7, 1955 by the Mayor and Council of the City of Hoboken ordaining, Article VIII, Section 1, that no "licensee, agent or other employee connected with or employed by or to be connected with or employed by the licensee shall * * * (g) Employ or permit the employment of any female to tend bar on the licensed premises," but that the regulation "shall not prohibit a female licensee from tending bar in her premises," nor "prohibit the wife, mother, daughter or sister of a licensee from tending bar in his licensed premises," nor prohibit a "female holding 50 or more percentum of the capital stock of a corporate licensee" or "the wife, mother, daughter or sister of a person holding" 50% or more of the capital stock of such corporate licensee from "tending bar" in the "corporation's licensed premises," and "shall not apply so as to prohibit the employment of females in alcoholic beverage licensed restaurants and hotel dining rooms to act as waitresses to serve alcoholic beverages directly to persons while seated at tables."
Another provision of the ordinance, Article VI, Section 1(a), obliges every "Plenary Retail Consumption Licensee, agent or other employee connected with or employed by or
to be connected with or employed by said license" to "make full and complete answers in writing * * * to all questions * * * as to the identity, character, antecedents and general experience of any such licensee, agent or other employee."
The plaintiff employees of establishments in Hoboken licensed for the sale, service and consumption of alcoholic beverages "at counters, commonly known and designated as a 'bar' or 'bars'" brought this action in lieu of certiorari to have these provisions of the ordinance declared null and void in that they (a) constitute an "unlawful exercise" of legislative power; (b) deprive "plaintiffs and other citizens of the female sex of the protection and rights guaranteed to them" by the Fourteenth Amendment to the Constitution of the United States and Article I, paragraphs 1 and 20, of the Constitution of New Jersey; and (c) are "arbitrary, capricious, unreasonable and discriminatory." It was averred in the complaint that the plaintiffs are severally willing to answer questions designed to establish "their identity, good character, antecedents and general experience," but they "are estopped from doing so because they do not fall or come within the class of females enumerated in Section 1(g) Article VIII" of the ordinance, and "said estoppel" has "aggrieved" them and "other citizens of the female sex and is illegal and erroneous," for the reasons given.
The appeal is taken from an "interlocutory determination or judgment" denying plaintiffs' motion "for an order restraining the defendants from enforcing or attempting to enforce until the final determination of the cause" the particular provisions of the ordinance. The order or judgment in question denied plaintiffs' motion for judgment declaring both regulations to be "invalid and unconstitutional" and enjoining their enforcement, but continued a temporary restraint to permit of an appeal and an application to the Appellate Division for a stay pending the appeal. The Appellate Division continued the restraint until the determination of the appeal. The order was entered by consent; and it was there stipulated that the "interlocutory
judgment of the trial court * * * should be considered as a final judgment by the trial court," and the "appeal * * * should be considered and treated as an appeal from a final judgment of the trial court and judgment rendered thereon" by the appellate court "on the record."
The case is here by our own certification of the appeal thus pending in the Appellate Division.
It is contended that section 1(g) of Article VIII is "unreasonable; arbitrary; capricious; an unlawful exercise of the power of legislation and therefore unconstitutional," in that the employment of females to "tend bar" in licensed premises is (a) "prohibited, but there is no prohibition against females going behind the bar and mixing drinks and serving them to patrons who might be seated at tables"; (b) the "wife, mother, daughter or sister" of a "male" licensee is permitted to "tend bar" in his licensed premises, but the "mother, daughter or sister" of a "female" licensee is prohibited from "tending bar"; (c) a "female holding 50% or more of the capital stock of a corporate licensee" is permitted to "tend bar" on the corporation's licensed premises; and (d) the "wife, mother, daughter or sister" of a "person holding 50% or more of the capital stock of the corporate licensee" is also permitted to "tend bar."
The argument is that the "classes of females or female relatives of license holders who may tend bar" under the ordinance "is purely discriminatory because the right or opportunity to earn a living at tending bar is extended to females of practically every class except those who are engaging in that enterprise purely and solely as a means of earning a livelihood"; and that "tending bar in licensed premises" is a "lawful occupation which cannot be denied to citizens by reason of diversity of sex," and thus section 1(g) of Article VIII of the ordinance represents an "unconstitutional exercise of legislative power, unjustified even when done under the pretext of protecting public health, ...