Anthony C. Mitchell, Judge of the County Court, without a jury. Mitchell, J.c.c.
The defendants are charged with violating the provisions of an ordinance of the Borough of Collingswood (No. 571), entitled "An Ordinance for the Preservation of the Public Peace and Good Order, and for the Observance of the First Day of the Week, commonly called Sunday," adopted May 18, 1959. The alleged offenses arose out of the same questions of law and fact, and, hence, were consolidated for the purpose of trial.
The complaints charge that the defendants, on Sunday, July 19, 1959, "did engage in worldly employment or business which was not an employment or business of necessity and charity, in that he (she) did sell baked goods to the
complainant, J. S. Holcombe, namely 1/2 dozen donuts for off premises consumption."
The defendants do not deny the fact that the baked goods were sold by them on Sunday; but by way of defense say that the merchandise which was sold was exempt from the prohibition of the ordinance. Additionally, they contend that the borough has failed to carry the burden of proving that the activities of the defendants are not "works of necessity and charity."
The ordinance in question follows closely the wording of N.J.S. 2 A:171-1. Section 1 of the ordinance is an exact copy of section 1 of N.J.S. 2 A:171, with the substitution of the words "this Borough" for the words "this state," reading as follows:
"Section 1. No worldly employment or business, except works of necessity and charity, shall be performed or practiced by any person within this Borough on the Christian Sabbath, or first day of the week, commonly called and hereinafter designated as Sunday."
Section 2 of the ordinance also closely follows the wording of N.J.S. 2 A:171-2. It excludes from its prohibition "the preparation and sale of drugs, meals, prepared food and non-alcoholic beverages on Sunday"; and goes on to say "nor shall the same apply to any other lawful acts or works of necessity and charity, nor to any sales, acts or works which may now or hereafter be permitted by the laws of the State of New Jersey."
Parenthetically, it will be observed that the Legislature amended the provisions of N.J.S. 2 A:171-2, by chapter 131 of the Laws of 1959 (effective June 18, 1959), by adding to the exclusions "the preparation and sale of * * * perishable agricultural and horticultural products." By the terms of the ordinance, the sale of such merchandise is also excluded from its prohibition inasmuch as such activity falls into the category of "any sales, acts or works which may now or hereafter be permitted by the laws of the State of New Jersey."
The facts in the cases are not in dispute. On July 19, 1959, which was a Sunday, the defendants at their bakeshop in the Borough of Collingswood, sold to the complainant one-half a dozen of doughnuts. The doughnuts were the type usually purchased in a bake shop, and were fit for immediate consumption. The store portion where the sale was made had an ordinary counter behind which the merchandise was bagged and then delivered to the purchaser. In front of the counter was a table with some chairs around it, and in the window of the shop was a sign which advertised the fact that coffee and other articles of food were available for purchase and, at least from the testimony concerning the sign, it could be inferred that anything purchased might be consumed on the premises at the table which was placed there for this purpose. On the other hand, the facts were rather clear that it was the understanding of the defendants that the aforesaid doughnuts, which were placed in a paper bag, were to be removed from the premises for consumption elsewhere.
The contention of the defendants that the borough has failed to carry the burden of proving that the activities of the defendants are not "works of necessity and charity" is a question of fact rather than a question of law. The ordinance excepts from its operation "works of necessity and charity." The defendants were obviously not engaged in charitable work, but rather were in the business of selling baked goods for personal profit. We are concerned, therefore, only with whether or not they were engaged in a work of necessity, and whether what was being done constituted worldly employment or business on ...