On appeal from Superior Court, Law Division, whose opinion is reported in 41 N.J. Super. 303.
For affirmance -- Justices Oliphant, Wachenfeld, Burling and Francis. For reversal -- Justice Heher. The opinion of the court was delivered by Burling, J. Wachenfeld, J. (concurring). Francis, J. (concurring). Heher, J. (dissenting). Wachenfeld, J., concurring in result.
The Township of Woodbridge enacted an ordinance "to encourage the observance of Sundays to preserve the public peace and order and to promote the public health by repose and quiet on the day assigned for rest," but only the sale of the following items has been prohibited under pain of fine or imprisonment:
general household electrical appliances
home furnishings and bedding
automotive services and parts (except as sold by gasoline stations licensed by Woodbridge).
Plaintiffs own mercantile establishments in the township and deal in certain of the items prohibited from Sunday
sale. Included in the questions involved and propounded by the appellant's and argued in this case was:
"3. Was not Woodbridge's Sunday-closing ordinance one authorized by statute and constitutionally valid?"
The ordinance was brought under attack by a suit in lieu of prerogative writ in the Superior Court, Law Division. After Woodbridge filed its answer plaintiffs moved for summary judgment upon supporting affidavits. Woodbridge offered nothing in opposition thereto which would raise a factual issue, and the trial court quite properly viewed as true the statements of uncontradicted facts appearing in the plaintiffs' affidavits. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954).
The most significant recital in the moving papers is a recital of the business establishments which are engaging in Sunday trade. Among these are listed:
1 hardware and lumber supply
1 children's clothing store
1 store selling linens, blankets and drapes
The trial court concluded that the ordinance effected "an unconstitutional invasion of personal and property rights of the plaintiffs" and deemed the true purpose of the enactment to be an attempt "to subvert competition in favor of the members of the Perth Amboy Merchants Association" and "not for the purpose set forth in the title ...