By this suit in lieu of the former prerogative writ of certiorari , plaintiffs, taxpayers of the Township of Woodbridge, attack the validity of an ordinance of the Township of Woodbridge in the County of Middlesex adopted on or about February 7, 1956. A copy of the ordinance under attack is annexed to the complaint as Exhibit A.
The municipal defendants file formal answer denying the material allegations of the complaint and the plaintiffs, on notice, thereupon move for summary judgment under R.R. 4:58 upon the grounds that the ordinance is discriminatory against them in favor of other local merchants; that the ordinance violates the due process and equal protection clause of the Federal Constitution and constitutes an unreasonable exercise of police power; that the ordinance bears no reasonable relation to the police power under the Municipal Home Rule Act; that the ordinance is vague and ambiguous and therefore unenforceable; that the ordinance was promulgated and adopted for the benefit of certain private interests within the municipality; and that the ordinance by its terms is unreasonable, arbitrary and discriminatory in violation of constitutional guaranties. Plaintiffs supported their motion by affidavits of Irwin E. Mancbach, William Borbely, Adam Reiser, Harry Meyerson and Max Strelsin. The defendants filed no answering affidavits.
A reference to the ordinance will reveal that it is a penal ordinance prohibiting the sale, disposition or delivery on the Sabbath of a limited selected list of merchandise particularly described in the ordinance, under penalty, upon conviction, of either or both fine and imprisonment.
Defendants having filed no affidavits controverting the allegations of plaintiffs' affidavits, the factual matters (but not conclusions) set forth in the plaintiffs' affidavits are to be taken as true.
While the Township of Woodbridge, a municipal corporation, possesses only such power to legislate by ordinance as the State has conferred upon it either in express terms or as arise by necessary or fair implication (New Jersey Good Humor, Inc., v. Board of Commissioners of Borough of Bradley Beach , 124 N.J.L. 162, at pages 164-165 (E. & A. 1939); Reid Development Corp. v. Parsippany-Troy Hills Township , 31 N.J. Super. 459, at page 465 (App. Div. 1954)), yet I think there is no question but that the Legislature has conferred upon municipalities in this State express authority to adopt ordinances to preserve the public peace and order (R.S. 40:48-1(6)) and such other ordinances as may be deemed necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants (R.S. 40:48-2). Such delegation of power by the State to a municipal corporation represents an exercise of the police power inherent in every sovereign state.
Therefore, there would appear to be no doubt but that the Township of Woodbridge, a municipal corporation, has been delegated the power and does possess the authority, in exercise of the so-called police power, to adopt and to enforce ordinances to preserve the public peace and order and to promote the public health by providing for and attempting to secure repose and quiet on the Sabbath. It remains for determination, however, as to whether the particular ordinance under attack does constitute a valid exercise of that power.
Article I, paragraph 1, of the 1947 New Jersey Constitution describes as a natural and unalienable right the acquisition, possession and protection of property, and paragraph 5 of the same Article provides that no person shall be denied
the enjoyment of any civil right, nor be discriminated against in the ...