On appeal from conviction in municipal court.
Scherer, J.s.c. (temporarily assigned).
[53 NJSuper Page 240] Defendant was convicted in the Municipal Court of the Town of West Orange on September 22, 1958 for a violation of the provisions of section 1 of an ordinance of the Town of West Orange entitled, "An Ordinance Prohibiting Certain Worldly Employment or Business on Sunday in the Town of West Orange, Essex County, New Jersey, and Providing Certain Penalties for the Violation Thereof," passed and approved April 17, 1958. The alleged violation occurred on Sunday, August 17, 1958. Defendant's store was not open for business or the sale of merchandise, but its employees were working in the store taking inventory. The facts concerning the alleged violation are admitted. The defendant entered
a plea of not guilty. Upon trial, it was convicted and fined $25 by the magistrate. This appeal is from that conviction.
No stenographic record was made in the municipal court and hence, on the appeal, pursuant to R.R. 3:10-10(a), the evidence was taken de novo.
Section 1 of the aforesaid ordinance reads as follows:
"No worldly employment or business, except works of necessity and charity, shall be performed or practiced by any person within the Town of West Orange on the Christian Sabbath, or first day of the week, commonly called and hereinafter designated as Sunday."
While the town did not in its complaint or proof in the municipal court negative the fact that the defendant was not engaged in a work of necessity or charity, it was stipulated by the defendant at the trial in this court that the complaint be amended to insert such an allegation. The defendant further stipulated that it was not engaged in work of necessity or charity on the day and at the time the alleged violation occurred. Therefore, the defect which required a reversal of the conviction in Town of West Orange v. Jordan Corporation , 146 A. 2 d 134 (Cty. Ct. 1958) is not present in this case.
The defendant in its brief presents five arguments for a reversal of the conviction. These will be dealt with in the order in which they appear in that brief.
Defendant asserts, first, that the ordinance is invalid because (a) it is unconstitutional in that it does not "protect the health, welfare, safety or morals of the employees of the defendant establishment"; (b) the defendant is denied equal protection of the Federal and State Constitutions because it is forced to close on Sunday while other stores in West Orange, allegedly offering for sale some of the articles sold by the defendant, are permitted to remain open; and (c) its operation discriminates against those whose religion sets aside Saturday or some other day as the Sabbath.
The New Jersey Constitution, Art. IV, Sec. VII, par. 11, directs that municipal laws shall be liberally construed. The courts have held that there is a presumption
in favor of the validity of an ordinance and that the burden of showing to the contrary rests upon those who attack it. Edwards v. Mayor, etc., Borough of Moonachie , 3 N.J. 17, 26 (1949); City of Elizabeth v. Windsor-Fifth Avenue, Inc. , 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). Thus, defendant must sustain the burden of showing that the ordinance in question is invalid.
No proof was produced by the defendant in support of the proposition that the ordinance does not protect the health, welfare, safety or morals of "the employees of the defendant establishment." But the cases do not require that the ordinance have such limited scope.
It was held in Auto-Rite Supply Co. v. Mayor, etc., Woodbridge Tp. , 25 N.J. 188 (1957), that the purpose of the Home Rule Act (R.S. 40:48-2) was to enable a municipality to enact ordinances for the preservation of the public health, safety and welfare "of all of its citizens," not some special class or group thereof. In Hertz Washmobile System v. Village of South Orange , 41 N.J. Super. 110 (Law Div. 1956), affirmed 25 N.J. 207 (1957), Chief Justice (then Judge) Weintraub said as follows:
"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. * * * 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." (Emphasis supplied)
We must assume that the governing body of the Town of West Orange believed that such an ordinance was necessary to protect the public health, safety and welfare of all of its citizens and to protect persons from labor on Sunday within the town, except if such labor was a work of necessity or charity. Such a purpose is a valid exercise of its police power.
As was said in 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 (1957), the public policy of the State is against all worldly employment on Sunday, except works of charity and necessity. The means selected for accomplishing and maintaining that policy is not for the court to question, so long as there is any reasonable basis for the enactment.
A municipality within the limits of the state statute, by delegation from the State, has power for the public good to enact all manner of laws reasonably designed to protect the public health, welfare, safety and morals of its citizens. By prohibiting the defendant from employing persons to work in its store on Sunday, the ordinance accomplishes that purpose.
The fact that other stores in West Orange are open on Sunday and are allegedly offering for sale articles sold by the defendant does not, as defendant argues, deny it equal protection of the law and, therefore, require a holding that the ordinance is unconstitutional under the equal protection clauses of the Federal and State ...