On appeal from Superior Court, Law Division, whose opinion is reported in 41 N.J. Super. 110.
For affirmance -- Justices Oliphant, Burling and Francis. For reversal -- Justices Heher and Wachenfeld. The opinion of the court was delivered by Burling, J. Francis, J. (concurring). Heher, J. (dissenting).
The Village of South Orange enacted an ordinance "to prohibit on Sunday the Sale of Certain Merchandise and the Carrying on of Business for Such Sale and for Certain Other Purposes." Section 1 of the enactment prohibits selling or offering for sale a number of items of merchandise on Sunday. Section 2 prohibits the operation of any business on Sunday for the purpose of selling Section 1 articles as well as those engaged in dry cleaning, laundering, tailoring, washing of automobiles, lubricating of automobiles, repairing of automobiles (except emergency repairs to disabled vehicles), or the operation of beauty shops. Section 3 directs that the specific prohibitions are not to be construed to prohibit the preparation or sale of drugs, meals, food, baked goods, ice cream and other confections, tobacco, newspapers, non-alcoholic and alcoholic beverages, the delivery of flowers purchased prior to Sunday, nor the operation of restaurants, luncheonettes, ice cream parlors, gasoline stations, stationery stores and news stands.
Plaintiff is commercially engaged in the business of washing automobiles. The ordinance expressly prohibits this operation on Sunday and feeling aggrieved by the legislative bar plaintiff sought an adjudication of its validity by complaint in lieu of prerogative writ. The trial court determined the ordinance to be invalid because its operative effect was inconsistent with the statutory purpose reflected in N.J.S. 2 A:171-1. 41 N.J. Super. 110 (Law Div. 1956). South Orange pursued an appeal to the Superior Court, Appellate Division, and we certified the cause prior to a review below.
The ordinance here carries the same invalidity which has caused this court to declare the Woodbridge Sunday closing law as ultra vires the municipal power. Auto-Rite Supply Co. v. Mayor and Township Committeemen of Township of Woodbridge, 25 N.J. 188 (1957).
The South Orange ordinance contains a more comprehensive list of specific activities that are prohibited on Sunday than did the Woodbridge ordinance previously considered.
But the legislative pronouncement in N.J.S. 2 A:171-1 requires nothing less than a general prohibition with exceptions accorded only to works of necessity and charity. The statute itself excludes from prohibition the preparation and sale of drugs, meals, prepared food and non-alcoholic beverages (as well as alcoholic beverages which are otherwise subject to regulation), N.J.S. 2 A:171-2, and provision is made to enable the legal voters of a municipality to adopt N.J.S. 2 A:171-6 which would permit any person, on Sunday, to "(a) print, publish and sell newspapers, (b) sell and deliver milk, (c) walk, ride or drive for recreation, (d) hire conveyances for riding and driving, or (e) engage or take part in any form of recreation, sport or amusement that is not unlawful on other days of the week, if in so doing such person does not disturb others in their observance of Sunday."
In measuring the effect of the ordinance in fulfilling the purpose of the state policy, we quote in part Chief Justice Weintraub (then a Judge of the Superior Court) in the trial court (41 N.J. Super., at page 127):
"Looking at the total scene, apart from the ordinance itself, we find other activities beyond those set forth in section 3 which are not restrained by the ordinance. For example, there are several manufacturing establishments in the Village. Their operations on Sunday are not reached by the ordinance. Nor does the ordinance prohibit the operation of a quarry in the Village, as to which a letter in evidence reveals the protest of the owner that, while in the past it rarely operated on Sunday, yet it would be injured competitively if its activities were prohibited while other quarries in other communities were free to operate. * * * It does not prohibit the conduct of an existing book store, pet shop, hobby shop, camera shop, jewelry shop."
The fundamental error in approach is not remedied by a showing that activities not within the prohibition, by voluntary choice of the parties responsible, are not engaging in Sunday operations. "The fact that no such establishments, apart from lunch wagons, remain open all night is immaterial. The validity of the ordinance is to be tested not by what is actually done but by what it permits to be done."
Hart v. Teaneck Township, 135 N.J.L. 174, 177 (E. & A. 1947). We cannot think that the ordinance in question was intended to be supplemented each time a particular business activity not now prohibited reverses its present Sunday policy.
Parenthetically, it may be appropriate to set forth a prediction which counsel for South Orange attaches to the determination below:
"Ordinances of long standing * * * will become invalid and adoption of new ones, paraphrasing the statute, will be unlikely because of the difficult choice between the evils of unrestrained commercialism and the outmoded stringency of the statute."
If this be true, it is quite clear that a remedy cannot be expected to be found in the judicial branch of government for what may be prudent is peculiarly for the legislature to consider and by petition to it to re-appraise its present approach to the situation.
The judgment is affirmed.
FRANCIS, J. (concurring).
I concur in the view expressed by Mr. Justice Burling that the ordinance under attack in this case is invalid. However, for purposes of emphasizing the fundamental problem facing us, I desire to reiterate the thesis put forward, namely, that the local action is condemned because it conflicts with the age-old policy of our State as set forth in N.J.S. 2 A:171-1 to 6, inclusive, governing Sunday observance.
The controlling legislative declaration is clear.
" No worldly employment or business, except works of necessity and charity shall be performed or practiced by any person within this state on * * * Sunday." N.J.S. 2 A:171-1. (Emphasis added)
A more positive or more pervasive mandate would be difficult to devise. But certain activities were removed from its broad compass and authorized:
"[T]he preparation and sale of drugs, meals, prepared food and non-alcoholic beverages * * * [and] sales ...