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Hertz Washmobile System v. Village of South Orange

Decided: July 20, 1956.


Weintraub, J.s.c.


[41 NJSuper Page 112] Plaintiff seeks a declaration that a Sunday closing ordinance of defendant is invalid. The ordinance, adopted by a vote of 4 to 2, prohibits the operation of plaintiff's washmobile business along with certain other commercial activities on Sunday, under penalty of fine and imprisonment.

The issues are whether the ordinance (1) is beyond the police power of the municipality; (2) is discriminatory, unreasonable, and oppressive as applied to plaintiff because of an alleged design to drive plaintiff out of business and to deprive plaintiff, by circumvention, of a permit duly issued under the zoning ordinance; (3) is discriminatory in violation of the equal protection clause of the Fourteenth Amendment to the Federal Constitution and of the concept of equality which inheres in Article I, paragraph 1 of the State Constitution, in that the classifications of activities are arbitrary and unreasonable and unrelated to the alleged evil; (4) violates the principle of reasonableness which must attend the exercise of municipal powers; and (5) is beyond municipal power in that it conflicts with the state statute relating to Sunday activities. Some of these questions were recently raised in City of Elizabeth v. Windsor-Fifth Avenue, Inc. , 31 N.J. Super. 187 (App. Div. 1954), where, however, most of them were not actually resolved.


When legislation is questioned under the due process provision in its substantive sense the inquiry is twofold: (1) whether the evil is within the reach of the police power, and (2) whether the means selected are reasonably related to the end sought to be achieved. Hence the first step must be to identify the evil. So also the charge of denial of equal protection and unreasonableness cannot be resolved except in the light of the particular evil because the propriety of the classification necessarily depends upon the objective of the legislation.

What is the evil to which Sunday legislation is addressed? Originally the impetus probably had its genesis in religious concepts, and hence we find judicial expressions that our statute sought to prevent desecration of the Sabbath. Reeves v. Butcher , 31 N.J.L. 224, 226 (Sup. Ct. 1865); Fennan v. City of Atlantic City , 88 N.J.L. 435, 437 (Sup. Ct. 1916), affirmed on opinion below, 90 N.J.L. 674-677

(E. & A. 1917). To bottom such legislation upon that ground obviously invites a claim of violation of the constitutional separation of church and state; and hence that basis seems generally to have been abandoned. 50 Am. Jur., Sundays and Holidays, sec. 10, p. 809. The thesis usually advanced today is that the object is to protect all persons from the physical and moral debasement which comes from uninterrupted labor. 50 Am. Jur., Sundays and Holidays, sec. 9, p. 808. Accordingly, other of our decisions state the purpose to be to set aside a day of rest. Sherman v. Mayor and Aldermen of City of Paterson , 82 N.J.L. 345, 346 (Sup. Ct. 1912); Schachter v. Hauenstein , 92 N.J.L. 104, 105 (Sup. Ct. 1918); dissenting opinion in State v. Fair Lawn Service Center, Inc. , 20 N.J. 468, 482 (1956); City of Elizabeth v. Windsor-Fifth Avenue, Inc., supra (31 N.J. Super. , at page 190). That this objective may be sought under the police power of the State is beyond question, and so also it may not be disputed that the State may choose the Christian Sabbath for the day of rest, as our Legislature has done.

Sunday statutes were not universally supported and it is commonplace that in many areas they become relatively inert. Our state law, as it existed at the time of the 1951 revision of Title 2, imposed half-hearted penalties, ranging from $1 to $20, and the revision deleted even those penalties, State v. Fair Lawn Service Center, Inc., supra (20 N.J. , at page 468), all of which, as I see it, reflected a compromise between strongly divergent views, giving satisfaction to the one side and relatively little pain to the other. Recently, interest in the subject has been revived because of considerations foreign to the origin of Sunday laws. With the tremendous increase in automobile travel, mercantile ventures have been established on highways to garner the trade of the Sunday motorist, with a success irritating and menacing to the urban merchant. Thus many who heretofore deprecated Sunday laws as "blue laws" now seek enforcement, not out of piety or preoccupation with the debasement of man consequent upon uninterrupted labor, but rather out

of sheer economic concern. Although it is true that Sunday highway operations tend to induce the merchant who otherwise would keep his place closed, to open to meet the competition, and to that extent the opposition may be said to be consonant with assuring a day of rest, yet a large factor is that the city tradesman cannot meet the competition by opening his doors. The purchasers are not there; they prefer to ride and buy. Moreover, in the opinion of one of the Village trustees, the highway operator is not burdened with comparable land costs and local taxes, and because of this and alleged marginal practices can undersell the urban competitor.

Defendant through its counsel disclaims any purpose other than the assurance of a compulsory day of rest, and hence I think it unnecessary to consider whether municipalities are vested with power to adopt Sunday closing ordinances to protect their merchants from competition as such. See N.J. Good Humor, Inc. v. Board of Commissioners of the Borough of Bradley Beach , 124 N.J.L. 162 (E. & A. 1940); cf. Reingold v. Harper , 6 N.J. 182, 192 (1951).

Although one of the trustees placed his vote for the ordinance in part upon his concern with the ravages of highway selling upon the economic well-being of our society, the presence of this motive, if it be conceded to be an improper one, would not invalidate an act of legislation which may be grounded upon an authorized objective. Hence, for the purpose of this case the evil will be deemed to be the debasement of man consequent upon uninterrupted labor.


Is Sunday legislation within the police power delegated to municipalities? It is generally held that the power to provide for the general welfare embraces authority to enact Sunday closing ordinances. 50 Am. Jur., Sundays and Holidays, secs. 6 and 7, pp. 804, 805; 6 McQuillin, Municipal Corporations (3 rd ed. 1949), sec. 24.189, p. 768.

Hence the authority is included in the grant of power to preserve the welfare made by the Home Rule Act, R.S. 40:48-1. See Sherman v. Mayor and Aldermen of City of Paterson, supra (82 N.J.L. 345); Fennan v. City of Atlantic City, supra (88 N.J.L. 435, affirmed 90 N.J.L. 674-677); Schachter v. Hauenstein, supra (92 N.J.L. 104); Schumacker v. Township of Little Falls , 92 N.J.L. 106 (Sup. Ct. 1918); Mazzarelli v. City of Elizabeth , 164 A. 898, 11 N.J. Misc. 150 (Sup. Ct. 1933); Richman v. Board of Commissioners of the City of Newark , 122 N.J.L. 180 (Sup. Ct. 1939). In City of Elizabeth v. Windsor-Fifth Avenue, Inc., supra (31 N.J. Super. , at page 190) it was held that the authority rests as well upon the power to prevent immorality granted by R.S. 40:48-1, par. 6.

The fact that the Legislature has dealt with a subject does not, in this State, necessarily operate to preempt the field. But, of course, the question whether the ordinance exceeds the power granted either because it conflicts with the state statute or is an unreasonable exercise of delegated power, is another matter, considered in IV below.


There are two prongs to plaintiff's charge of denial of equal protection. The first is that the ordinance was designed to single out plaintiff's business for destruction, and the second is that, apart from that inadmissible purpose, the classification of activities is without constitutional warrant. Let us consider the challenges separately.


It is not disputed that the permit for the erection and use of the structure as a washmobile was issued in accordance with the applicable ordinances, including the zoning ordinance. But the property abuts a residential zone. Neighbors

were aroused and protested vehemently. They were informed that no ordinance was offended.

The protests followed a number of lines, including claims of depreciation of property value, noise, traffic involvement, and unwarranted use of water which at times had been in short supply.

Defendant successively raised matters upon which plaintiff relies as evidential of a purpose to circumvent the zoning ordinance and by indirection to deprive plaintiff of its right to engage in its business. The Village demanded some arrangement to assure against a worsening of the water problem. Plaintiff agreed, at considerable expense, to install equipment to reuse the water and also to bear part of the cost of water which the Village should have to purchase to meet a shortage. The Village refused connection with its sewer with respect to waste waters resulting from the business operation unless certain materials were eliminated therefrom, and plaintiff agreed to abide by the Village's position. The Village amended its zoning ordinance to control future locations of washmobiles and other operations involving substantial on-site parking. Each of these actions is consistent with good faith, and none bespeaks a pernicious purpose.

There was testimony of a belief that the trustees who voted for the ordinance in fact intended to drive plaintiff out of business, but the opinions thus expressed were merely conclusions drawn by witnesses from the total events, rather than testimony as to an actual expression of that purpose by any of the majority trustees. That testimony accordingly has no inherent probative value; it is merely the opinion of the witnesses upon the very issue which the court must resolve. I cannot refuse to accept the sworn testimony of the majority trustees that such was not their motive.

There is no doubt the washmobile triggered the situation. But for it, an ordinance would not have been adopted. It is true that prior to the washmobile there had been a protest against Sunday business activity, but I agree with the view

of one of the majority trustees expressed before and at the trial that if plaintiff had agreed not to operate on Sunday, an ordinance would have been found to be unnecessary. But nonetheless, plaintiff's Sunday operations served the occasion for the crystallization of opposition from all points of view, religious, civic, and, to some extent, economic. Plaintiff's neighbors, unable to be freed of its activities 7 days a week, pressed for at least a Sunday closing, and doubtless much consideration was given to their plea. Additionally, concern was expressed that operators elsewhere who actively seek Sunday commerce might come to the Village and disturb the existing pattern. Accordingly an ordinance was advanced and by successive drafts an arrangement was evolved whereby certain activities would be barred on Sunday.

The trustees determined to permit, with minor exceptions, the continuation of those business activities which had regularly operated on Sunday as revealed by a survey. They prohibited the washing of automobiles, which prohibition encompassed plaintiff's operation and also like operations, not on a mass basis, which theretofore had been conducted by 5 service stations and a garage. There was testimony that the sale of automobiles would have been likewise prohibited but for the enactment of Chapter 254 of the Laws of 1955 which closed those operations statewide. They closed hardware stores, only one of which had regularly opened on Sunday. They prohibited the operations of florists except to permit deliveries on Sunday of cut flowers and floral arrangements if ordered prior thereto. Activities of service stations were further curtailed to the extent of barring ...

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