On appeal from conviction in municipal court.
Scherer, J.s.c. (temporarily assigned).
[52 NJSuper Page 536] The defendant appeals from a judgment of the Municipal Court of the Town of West Orange, finding it guilty of violating Ordinance No. 1842 of that town, passed April 1, 1958, entitled, "An Ordinance Prohibiting Certain Worldly Employment and Business on Sunday in the Town of West Orange, Essex County, New Jersey, and Providing Certain Penalties for the Violation Thereof." There was a stenographic transcript
of the proceeding in the municipal court and the appeal is on the record below. R.R. 3:10-10(a).
The facts in this case are not in dispute. The complaining police officer testified that on Sunday, June 15, 1958, while he was at a house at 2 Powell Drive, West Orange, which is the property referred to in the complaint, he met a Mr. Shallit, who stated that he was the builder of the homes in a tract called Oldstead Development. Defendant conceded that it was the owner of the property 2 Powell Drive. The police officer testified that at 2:30 in the afternoon of that day he made an inspection of the tract and the house 2 Powell Drive in the company of two other detectives. They drove to the house in question, which is classified as a model home. There was a sign outside the house indicating that it was a model home, and signs inside the house stated that for information concerning price, terms, etc., persons interested could call Henry M. Lesher, sales agent, whose phone number was given. They observed at the Powell Drive property that several people were going into and coming out of the house and driving away in cars. The witness counted approximately a half dozen while he was there. Counsel for the defendant, at the trial in the municipal court, admitted for the record that the home was open for inspection on that day and that there were two representatives of the defendant present who were there to answer questions but not to transact any business. The witness said that he saw no money pass, no contracts signed, no deposits accepted, nor did he hear any conversation regarding sales price or terms of sale. He did, however, hear Mr. Lesher ask whether there were any questions. People walked through the house inspecting it.
The defendant moved for a dismissal at the close of the town's case and, this motion being denied, rested its case without the introduction of any evidence and moved for a judgment of acquittal. Prior to resting his case, counsel for the defendant advised the court that he had planned to subpoena four of the five commissioners, who would testify, if present, that it was not their intention by the adoption
of the ordinance to prohibit acts such as those with which the defendant was charged. The court ruled that such testimony would not be material. Counsel for the defendant then moved for acquittal, which motion was denied. The defendant was found guilty and a fine imposed.
Section 1 of the ordinance in this case is a verbatim copy of N.J.S. 2 A:171-1, with the substitution of the words "The Town of West Orange" for the words "this state." Section 1 of the ordinance is the one referred to in the complaint. It is argued that the ordinance is invalid because it is, in the first and other sections, a copy of the cited statute and the latter has been repealed by chapter 138 of the Laws of 1958 (N.J.S. 2 A:171-5.1).
We start with the proposition that there is a presumption in favor of the validity of the ordinance and that the burden of showing to the contrary rests upon those who attack it. Edwards v. Mayor, etc., of Borough of Moonachie, 3 N.J. 17, 26 (1949); City of Elizabeth v. Windsor-Fifth Avenue, 31 N.J. Super. 187 (App. Div. 1954); Bellington v. Tp. of East Windsor, 32 N.J. Super. 243 (App. Div. 1954); Auto-Rite Supply Co. v. Mayor, etc., Woodbridge Tp., 41 N.J. Super. 303 (Law Div. 1956).
The New Jersey Constitution, Article IV, Sec. VII, par. 11, requires that municipal laws shall be liberally construed. The appellant argues, however, that L. 1958, c. 138, constitutes a change in the public policy of this State in dealing with Sunday observance and that the effect of that law is to proscribe only the sale of those kinds of personal property which are specifically mentioned in that statute. Appellant also argues that, since the 1958 act is in conflict with and repugnant to N.J.S. 2 A:171-1 et seq., it operates as an implied repealer of the last cited statute, and, since the ordinance is based upon the earlier statute, the ordinance, too, must fall.
A comparison of the two statutes leads to the conclusion that this argument is without merit. Chapter 138 of the Laws of 1958 states specifically in its title that it is a supplement to chapter 171 of Title 2 A of the New Jersey Statutes. It inserts in the latter statute an entirely new section, which bears the number 5.1. The prior statute had no section thus numbered. Further, the new act does not in any way limit or circumscribe the provisions of chapter 171 of Title 2 A, but merely provides penalties if sales are made on Sunday of those items of merchandise specifically enumerated in the 1958 act. N.J.S. 2 A:171-1 et seq., contains no penalty provisions and perhaps the Legislature, in dealing with the items enumerated in L. 1958, c. 138, believed that these items required special treatment and therefore imposed specific penalties for the sale of such items on Sunday. It has done this with respect to other items of merchandise; for example, the sale of new and used automobiles. See N.J.S. 2 A:171-1.1; Gundaker Central Motors v. Gassert, 23 N.J. 71 (1956), appeal denied 354 U.S. 933, 77 S. Ct. 1397, 1 L. Ed. 2 d 1533. The most that can be said is that the Legislature decided specifically to interdict the sale of certain items of merchandise but not to change public policy with respect to the sale of other merchandise. The enumerating of specific items in the statute should not be construed as exempting from the provisions of the Sunday closing statute all other business, in the absence of some clear legislative expression to that effect. There is no such intent apparent in the statute.
No express repealer of any of the provisions of chapter 171 of Title 2 A is found in L. 1958, c. 138. Implied repealers are not favored in the law. 50 Am. Jur., Statutes, sec. 538, p. 542; Mahr v. State, 12 N.J. Super. 253 (Ch. Div. 1951).
In French v. Ocean City, 136 N.J.L. 57 (Sup. Ct. 1947), Justice Heher said, at p. 59:
"Repeals by implication are not favored in the law. The question is one of intention; and, in the absence of an express repealer,
the indication of an intention to effect a repeal of prior legislation must be clear and compelling. There is a presumption against such an intention. * * *"
In order, therefore, to find that the 1958 statute repeals the old one by implication, there must be a finding that the provisions in the former are repugnant to or inconsistent with the provisions in the latter, or that the legislative intent to repeal the earlier statute is clearly apparent in the later one. A reading of the two statutes does not reveal any repugnancy or inconsistency, nor is there indicated in the later one any legislative intent to repeal the earlier statute. On the contrary, it is clearly stated in the 1958 statute that it is intended as an additional remedy. L. 1958, c. 138, sec. 4.
Where there are two acts on the same subject, the rule is that both must be given effect, if possible. Bruck v. Credit Corp., 3 N.J. 401 (1950); Montclair v. Stanoyevich, 6 N.J. 479 (1951). It is possible in this case to give effect to both statutes.
West Orange in adopting this ordinance followed the course which the revisors of Title 2 A envisaged. Judge Clapp in the foreword to Title 2 A said:
"* * * It was intended to leave municipalities with the power, they theretofore had, to control and regulate Sunday activity."
By this ordinance, West Orange is attempting to control and regulate Sunday activity.
The power of a municipality to pass an ordinance for the prevention of business activity on Sunday is not found in N.J.S. 2 A:171-1, but in the Home Rule Act, R.S. 40:48-2. ...