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Sarner v. Township of Union

Decided: May 7, 1959.

DONALD SARNER, ETC., ET AL., PLAINTIFFS,
v.
TOWNSHIP OF UNION (UNION COUNTY), ET AL., DEFENDANTS



Scherer, J.s.c.

Scherer

Plaintiffs, who are the owners of numerous retail stores located in various municipalities in several counties of this State, filed a complaint in lieu of prerogative writ and for declaratory judgment to test the validity of chapter 138 of the Laws of 1958, which was signed by the Governor and became effective on August 4, 1958. This act, which is now N.J.S. 2 A:171-5.1 to 5.7, makes it unlawful, except in certain counties, to sell or offer to sell on Sunday certain merchandise described in the statute. The defendants are the various municipalities in which the plaintiffs have their retail outlets, and the Attorney General of New Jersey (R.R. 4:37-2). The statute under consideration provides in section 4 that it is to be construed as an additional remedy to secure proper observance of Sunday. See N.J.S. 2 A:171-1.

Upon the filing of the verified complaint, an injunction was issued restraining the defendants from enforcing the penal provisions of the statute until the further order of this Court. The injunction is still in effect. R.R. 4:67.

Several municipalities -- in addition to those named in the original complaint -- including the City of Atlantic City, and various civic groups, including the Greater Atlantic City Chamber of Commerce and the Citizens Committee for Sunday Closing in New Jersey, Inc., were permitted to intervene in order that all facets of the Sunday closing problem could be presented and argued.

After the case was at issue several pretrial conferences were held, as a result of which counsel agreed that after discovery had been completed the matter should be brought on for hearing upon the plaintiffs' motion for summary

judgment, with a similar cross-motion by the Attorney General, acting on behalf of all defendants. The arguments presented by the Attorney General were joined in by all defendants, with the exception that several defendants disagreed with him as to the severability of section 5 from the balance of the statute. This problem is discussed in detail hereafter.

A brief statement of the course of this act through the Legislature will shed light upon the legal problems arising from its enactment. The statute was introduced as Assembly Bill No. 22 on January 14, 1958. After passage in the Assembly, the bill went to the Senate, where it was subjected to several significant changes. By Senate committee amendments, adopted May 5, 1958, the title was amended to insert the words "in certain counties"; the preamble was eliminated entirely; section 5 was added, providing that the act should be inapplicable to counties bordering on the Atlantic Ocean having a population of less than 225,000; and the numbering of certain sections was changed to accommodate the new section. On May 12, 1958 the Senate amendments adopted May 5 were directed to be omitted, but the same amendments with respect to the change in the title, the elimination of the preamble, and the insertion of section 5, were readopted and, in addition, there was added to the list of merchandise in section 1, the sale of which was prohibited, "building and lumber supply materials," and a new section, number 6 of the present statute, was inserted. This provided that if any phrase, clause, sentence or provision of the act was declared unconstitutional, the act as a whole should be unconstitutional. With these latter amendments, the bill was finally adopted and was signed into law by Governor Meyner on August 4, 1958, effective immediately.

Prior to signing, the Governor issued a press release in which it was stated that he believed it necessary and desirable, in the public interest, that he make some observations in connection with his signing of Assembly Bill No. 22, commonly

referred to as the "Sunday Closing" bill. He said that he believed the bill should become law even though it suffered from a number of defects. He pointed out that the exclusion of counties bordering on the Atlantic Ocean with a population of less than 225,000, which category embraced only three counties, namely, Atlantic, Cape May and Ocean, appeared to him to be a special exemption which was unreal and illusory and denied equal protection of the law, and that there was also confusion with respect to section 6, providing for non-severability, and section 7, which provided that if any section of the act be declared invalid, the remainder of the act should be valid and effectual. He pointed out that he was signing the bill because he believed that, if he applied a conditional veto to it, the bill probably would not again be enacted into law, since it was doubtful that the three exempt counties, through their Senate representatives, would consent to the elimination of the section 5 exemption, but he was hopeful, if it were signed into law, that the Legislature would promptly amend the bill to eliminate the conflicting and invalid provisions.

No amendment to the law has since been enacted, and L. 1958, c. 138, remains unchanged.

Assembly Bill No. 22 stated in its title originally that it was "An Act concerning the observance of the first day of the week, commonly known as Sunday, and providing penalties * * *." By the Senate amendments there were added, after the word "Sunday," the words "in certain counties."

The preamble to Assembly Bill No. 22, which was eliminated by the Senate amendments, stated as follows:

"Whereas, The sale and offering for sale on Sunday of certain goods, wares and merchandise is adversely affecting the proper observance of Sunday and is causing traffic congestion and an undue interference with the peace and quiet of Sunday and with the health, safety and general welfare of the people of the State; now, therefore, * * *."

The original Assembly Bill No. 22 contained no section similar to present section 5, and the act as introduced was obviously intended to affect all citizens in all counties of this State.

By its amendments the Senate indicated that it was not prepared to accept a bill as comprehensive as that approved by the Assembly. This was recognized by the Governor in his press release above referred to. Apparently in an effort to prevent the bill from affecting the counties of Atlantic, Cape May and Ocean if section 5 should be declared unconstitutional, thereby making the act effective as to all counties in the State, the non-severability section 6 was added. Whether through oversight or by design, the act as finally passed contained both the non-severability provision (section 6), inserted by the Senate, and the severability clause contained in the original Assembly bill, which became section 7 in the act as finally approved.

I.

DOES THE EXCLUSION OF ATLANTIC, CAPE MAY AND OCEAN COUNTIES REQUIRE THAT L. 1958, C. 138, BE DECLARED UNCONSTITUTIONAL?

This statute is another in a series of legislative enactments designed to deal with the problem of regulating commercial activity on Sunday. Historically, as early as 1704 there was passed in New Jersey "An Act for suppressing of immorality." For a discussion of the history of the legislation, see State v. Maier , 13 N.J. 235, 261 (1953); 12 Rutgers L. Rev. 505.

Prior to the adoption of L. 1958, c. 138, the statute controlling the conducting of business and employment on Sunday was N.J.S. 2 A:171-1, which states simply that no worldly employment or business, except works of necessity and charity, shall be performed or practiced on Sunday within this State. There is no penalty provision in that statute, it having been removed when the former statute, R.S. 2:207-1, was revised. See Judge Clapp's foreword to

Title 2 A. This statute, both in its original version and as revised, applied uniformly throughout the State. The statute under consideration limits its applicability to "certain counties" in the State. In those counties affected, the sale, at wholesale or retail, of certain items enumerated in section 1 is prohibited and severe penalties are prescribed for violations.

The plaintiffs contend that the act is unconstitutional, in that it is discriminatory and in violation of the equal protection clause of the Fourteenth Amendment of the Federal Constitution and the provisions of Art. I, par. 1, of the New Jersey Constitution of 1947, as well as Art. IV, Sec. VII, pars. 8 and 9.

The statute was adopted as a general law. A general law is defined as one in which the provisions embrace the whole of a subject and the subject matter is of common interest to the whole State. The uniformity that is required is to prevent the granting to any person, or class of persons, the privileges or immunities which upon the same terms do not belong to all persons. 2 Sutherland, Statutory Construction (3 d ed., Horack), sec. 2102, p. 9.

Apt language defining a special law is found in Koons v. Board of Com'rs of Atlantic City , 134 N.J.L. 329 (Sup. Ct. 1946), affirmed per curiam 135 N.J.L. 204 (E. & A. 1947), where the Supreme Court in its opinion said, 134 N.J.L. at page 333:

"Ordinarily, the exclusions from the statutory class are determinative of the generality of the act in constitutional intendment. 'A law is special in a constitutional sense when, by force of an inherent limitation, it arbitrarily separates some persons, places or things from others upon which, but for such limitation, it would operate. The test of a special law is the appropriateness of its provisions to the objects that it excludes.' Budd v. Hancock , 66 N.J.L. 133. And, in resolving the question, the substance and practical operation rather than the form of the statute control. Alexander v. City of Elizabeth , 56 N.J.L. 71."

See also, In re Freygang , 46 N.J. Super. 14 (App. Div. 1957), affirmed 25 N.J. 357 (1957).

Persons situated alike must be treated alike. Reid Development Corp. v. Parsippany-Troy Hills Tp. , 10 N.J. 229 (1952); 12 Am. Jur., sec. 557, p. 251; In re Van Horne , 74 N.J. Eq. 600 (Ch. 1908); Galloway v. Wolfe , 117 Neb. 824, 223 N.W. 1, 62 A.L.R. 637 (Neb. Sup. Ct. 1929).

There is nothing in chapter 138 to reveal the reason for the exclusion of the counties of Atlantic, Cape May and Ocean from its provisions. The preamble, which was elided by the Senate amendments, provides no clue, and the bill even as originally introduced had no appended statement of purpose. Thus, the court is without this aid which is often helpful in ascertaining legislative intent. ...


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