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Two Guys From Harrison Inc. v. Furman

Decided: November 27, 1959.


Scherer, J.s.c.


The complaint in this case was filed by the first named plaintiff, in lieu of prerogative writs, to test the constitutionality of L. 1959, c. 119 (N.J.S. 2 A:171-5.8 et seq.), and for a judgment declaring it to be invalid. A permanent injunction against the enforcement of any of its provisions is requested. The other plaintiff was permitted to intervene, and its complaint seeks similar relief. The matter comes on for hearing on the motion of both plaintiffs for a summary judgment. It has been stipulated that the Attorney General's opposition to the motion shall be considered as a motion for a judgment of dismissal of the complaints on the pleadings, pursuant to R.R. 4:12-3.

L. 1959, c. 119 is another act dealing with the problem of commercial activity on Sunday within this State. The

history of this type of legislation is reviewed in State v. Maier , 13 N.J. 235, 261 (1953). The 1959 statute purports to supplement N.J.S. 2 A:171-1, which provides as follows:

" Worldly employment or business prohibited

No worldly employment or business, except works of necessity and charity, shall be performed or practiced by any person within this state on the Christian Sabbath, or first day of the week, commonly called and hereinafter designated as Sunday."

Observable is the fact that no punishment is provided for violation of this statute. Its predecessor, R.S. 2:207-1, did contain a penalty clause, but when Title 2 was revised in 1951 this provision was not re-enacted. In the foreword to Title 2 A , it is stated:

"The general object of the Revision of the Sunday laws (N.J.S. 2 A:171-1 to 2 A:171-12) was not to make broad changes in substance, but rather to eliminate obsolete provisions. It was intended to leave municipalities with the power, they theretofore had, to control and regulate Sunday activity." (Emphasis supplied)

The Supreme Court, in State v. Fair Lawn Service Center, Inc. , 20 N.J. 468 (1956), held that the removal of the penalty clause changed the character of the statute from a penal statute to an expression of public policy only. Gundaker Central Motors v. Gassert , 23 N.J. 71, 77 (1956). Neither the revision nor the decision in State v. Fair Lawn Service Center, Inc., supra , operated to modify the long-standing public policy of this State as presently expressed in N.J.S. 2 A:171-1 against worldly employment or business on Sunday, except works of necessity and charity. A clear statement of this policy is found in Auto-Rite Supply Co. v. Woodbridge Twp. , 25 N.J. 188 (1957), where Justice Burling, speaking for the Supreme Court, said at p. 192:

"The legislative policy of this State to set aside the first day of the week as one of rest and relaxation is a declaration of long standing. See State v. Maier , 13 N.J. 235, 261 (1953). Our legislative pronouncements have been in keeping with the object to be

achieved by prohibiting all 'worldly employment or business' and are an extension upon the design of the English statute of 29 Car. II, c. 7 (1676), which merely prohibited one from engaging in the labor of his 'ordinary calling.' Reeves v. Butcher , 31 N.J.L. 224, 225 (Sup. Ct. 1865). The legislative purpose today is comparable to that of 146 years ago when Justice Pennington commented: 'It is to prevent the public exposure of goods, merchandise, etc., for sale on Sunday, and selling them in consequence thereof,' Crocket v. Vanderveer , 3 N.J.L. 856, 857 [ Reprint 422, 424] (Sup. Ct. 1811), and thereby provide an escape from the market place for merchant and customer alike. Sunday is to be a day of rest, and this has been 'the general and immemorial policy of the state.' * * *."

Certain acts are permitted by N.J.S. 2 A:171-2, and others may secure sanction from the voters of the municipalities through referendum under the provisions of N.J.S. 2 A:171-6.

Thus, while in the revision of R.S. 2:207-1 into N.J.S. 2 A:171-1 the penalty provisions were removed, this did not change the public policy of the State against exposure and sale of goods on Sunday but left to the various municipalities the enforcement thereof by their own ordinances. As was said in Auto-Rite Supply Co. v. Woodbridge Twp., supra, N.J.S. 2 A:171-1 is not the source of the power of municipalities to enact Sunday closing ordinances. This power they already had in the omnibus provisions of the Home Rule Act (R.S. 40:48-2), which enables them to enact ordinances for the preservation of public health, safety and welfare of their citizens. Numerous municipalities have enacted ordinances within the framework of N.J.S. 2 A:171-1, but many have not.

In 1958, the Legislature enacted L. 1958, c. 138 (N.J.S. 2 A:171.5 et seq.), which prohibited the sale of certain merchandise throughout the State on Sunday and imposed penalties for violations. By its population limitations, three counties were eliminated from the statute's benefits. The statute was held to be unconstitutional in Sarner v. Union Tp. , 55 N.J. Super. 523 (Law Div. 1959). This provision was eliminated from the present law. Therefore, the principal

reason which prompted the striking down of the 1958 statute is not applicable to the present act.

The latter act (which is N.J.S. 2 A:171-5.8 to 2 A:171-5.18) was approved on June 17, 1959. It prohibits the sale on Sunday of certain merchandise described therein and provides penalties for violations. Section 4 of the act states that it shall be construed "as an additional remedy to secure proper Sunday observance." Section 5 provides that the act shall take effect immediately, "but shall not become operative in any county unless and until the voters of the county shall determine by referendum held pursuant to this act that the same shall apply therein." The referendum provisions are found in sections 6 through 11. Section 6 states that, if not less than 2,500 registered voters in any county shall sign a petition requesting that there shall be submitted to the voters of that county a public question to the effect that the act shall apply in said county, and file the petition with the county clerk at least 45 days prior to a general election, the question shall be submitted to the voters in said county at such election.

In 15 counties of the State, petitions were filed and the question was placed on the ballot and voted upon at the general election held November 3, 1959. In 12 of the 15 counties, the voters approved the application of the statute to their counties. In three, they disapproved. Plaintiffs argue that, regardless of the fact that the citizens of 12 counties voted -- in most instances by substantial majorities -- to have the act apply in their counties so that they might receive the benefits thereof, this expression of public opinion should be disregarded.

Plaintiffs contend that the statute is unconstitutional because (1) it represents an unlawful delegation to the people of legislative power; (2) the classification of merchandise prohibited by, and described in, the statute is arbitrary, capricious and, therefore, unlawful; and (3) the referendum is illegal, since it, too, is arbitrary and discriminatory. These points will be dealt with in the order stated.


In considering the constitutionality of a statute, two basic principles must be borne in mind -- first, that there is a strong presumption in favor of constitutionality, and secondly, that if the statute under attack admits of two constructions, one of which will render it invalid and the other valid, the interpretation sustaining validity will be adopted. In re Loch Arbour , 25 N.J. 258, 264 (1957); General Electric Co. v. Passaic , 28 N.J. 499, 510 (1958); Clifton v. Passaic County Board of Taxation , 28 N.J. 411, 422 (1958); State v. Monroe , 30 N.J. 160, 165 (1959). And, the burden of proving unconstitutionality is, as pointed out in N.J. Restaurant Assn. v. Holderman , 24 N.J. 295, 300 (1957), an extremely formidable one. In considering an attack upon the constitutionality of a statute, our Supreme Court has said in Lane v. Holderman , 23 N.J. 304, 323 (1957), that the statute should be interpreted by a mind sympathetic to its aims which recognizes the difficulties inherent in formulating a precise expression of legislative intent in light of the diversity of circumstances to be covered. It must also be presumed that the Legislature acted with integrity and with an honest purpose to keep within constitutional limits. 2 Sutherland, Statutory Construction (3 d ed. Horack 1943), sec. 4509. If it keeps within its constitutional powers, the courts will not pass judgment upon the wisdom of its enactments. State v. Garden State Racing Assn. , 136 N.J.L. 173 (E. & A. 1947).

Plaintiffs argue that the reasons which resulted in L. 1958, c. 138's being held unconstitutional apply with equal force to the present statute and require that it, too, be struck down. A comparison of the two statutes discloses that the legislative approach to the problem in 1959 was entirely different than in 1958. In the 1958 act, by the express provisions thereof, the citizens of three counties -- Atlantic, Cape May and Ocean -- were excluded from its benefits. The present act does not exclude any of the citizens of any of

the counties of the State from the right to participate in its benefits, but gives to all citizens throughout the State the right to say for themselves on a county-wide basis whether the act should be applicable to them. Thus, the holding of the Sarner case is not dispositive of the issues here.

Sales of merchandise on Sunday, including those items specifically enumerated in the 1959 act, are, and were, illegal prior to the passage of the 1959 act by virtue of N.J.S. 2 A:171-1. However, since many municipalities have not adopted appropriate implementing ordinances, the existing statute has been widely disregarded. The 1959 act, in counties where the voters have approved, now fixes penalties for certain sales, which penalties local law officials will be obliged to enforce. Thus, as to the merchandise referred to in the statute, in those counties where the voters have acted favorably, local ordinances against Sunday sales are superseded by the state law, if it is constitutional. This, the Legislature lawfully may do, since there is no inherent right of local self-government beyond the control of the State, and ...

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