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Two Guys From Harrison Inc. v. Furman

Decided: April 4, 1960.


On appeal from the Superior Court, Law Division.

For affirmance in part and reversal in part -- Chief Justice Weintraub, and Justices Burling, Proctor and Hall. For reversal -- Justices Francis and Schettino. The opinion of the court was delivered by Weintraub, C.J. Burling, J. (concurring). Francis, J. (dissenting). Burling, J., concurring in result.


Plaintiffs attack the so-called Sunday Closing Law, chapter 119 of the Laws of 1959, N.J.S. 2 A:171-5.1 et seq. They moved for summary judgment and the Attorney General countered with a motion for judgment on the pleadings. The trial court denied plaintiffs' motion and granted defendant's. 58 N.J. Super. 313 (Law Div. 1959). We certified plaintiffs' appeal before the Appellate Division acted upon it.

Preliminarily it is well to sketch some highlights of the history of Sunday legislation. Its genesis is traced to the command at Mount Sinai:

"Ye shall keep the sabbath therefore; for it is holy unto you: everyone that defileth it shall surely be put to death: for whosoever doeth any work therein, that soul shall be cut off from among his people. Six days may work be done; but in the seventh is the sabbath of rest, holy to the Lord; whosoever doeth any work in the sabbath day, he shall surely be put to death." (Exodus 31:14, 15.)

Pfeffer, Church, State and Freedom (1953), p. 227. The Sabbath of Sinai was the seventh day and so remains for the members of some minority faiths, but for most Christians it is the first day of the week.

It is probably true, as Pfeffer points out (p. 229), that Sunday legislation was historically the product of Church-State unions. The American colonists brought with them the tradition of a state-established religion, Tudor v. Board of Education of Rutherford, 14 N.J. 31, 39 (1953), cert. denied, 348 U.S. 816, 75 S. Ct. 25, 99 L. Ed. 644 (1954), and perhaps solely for sectarian reasons the authority of colonial government was exerted to support the Christian Sabbath. Pfeffer, p. 228. Thus on December 2, 1675, an act was adopted to prohibit "any kind of servile work, unlawful recreations, or unnecessary travels" on the "Lord's Day," excepting only works of mercy or necessity. Acts of the General Assembly XI, Leaming & Spicer, Grants & Concessions (2 d ed. 1881), p. 98. See also Leaming & Spicer, op. cit., p. 124, p. 245; Allinson, Acts of the General Assembly of the Province of New Jersey (1776), pp. 3, 4.

The first comprehensive legislation after the Revolution, entitled "An Act for suppressing vice and immorality," was enacted on March 16, 1798. Paterson's Laws (1800), p. 329, et seq. This statute, which follows basically the approach of the colonial act, went beyond the English statute of 1676, 29 Car. II, c. 7, the prototype for most legislation by the states. The English statute prohibited the pursuit of one's usual vocation, whereas our act was not thus confined, with the result, for example, that a Sunday contract, unrelated to the usual occupation of the parties, was held to be unlawful. Reeves v. Butcher, 31 N.J.L. 224, 225 (Sup. Ct. 1865).

In 1926 the New Jersey Blue Law Revision Commission was created by Joint Resolution. In its final report of January 7, 1927, the Commission recommended that all forms of recreation be permitted on the Sabbath, subject to municipal regulation. Five bills (A-1, 32, 42, 70 and 252)

were introduced in the Assembly but none passed. The statement attached to A-42 noted that "By a general failure to enforce the present vice and immorality act, the public shows it wants no restrictions on the right to observe Sunday as the individual citizen sees fit with the possible exception that there should not be tolerated on that day amusements for pecuniary profit."

For present purposes, we recite some of the provisions of the Sunday Law as continued in the revision of 1937. R.S. 2:207-1 to 30. The first section imposed a fine of $1 for a violation of its provisions:

"No traveling, worldly employment or business, ordinary or servile labor or work either upon land or water, except works of necessity and charity, and no shooting, fishing, * * * sporting, hunting, gunning, racing, frequenting of tippling houses, or any interludes or plays, dancing, singing, fiddling or other music for the sake of merriment, playing at football, fives, nine pins, bowls, long bullets or quoits, nor any other kind of playing, sports, pastimes or diversions shall be done, performed, used 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."

Section 2 excluded from the ban against traveling, the "going to or returning from any church or place of worship within the distance of twenty miles, or going to call a physician, surgeon or midwife, or carrying mail to or from any post office, or going by express by order of any public officer * * *." Section 5 excluded "the dressing of victuals in private families or in lodging houses, inns and other houses of entertainment for the use of sojourners, travelers or strangers." Section 6 prohibited selling. Section 11 provided for a fine of $8 if any stage shall be driven "and sufficient reason shall not be offered to show that it be done in cases of necessity or mercy," etc.

The foregoing illustrates the stern approach of the Sunday law. The sole significant exception (R.S. 2:207-18 et seq.) permitted, but only upon adoption of the act by municipal referendum, any person to:

"* * * (a) print, publish and sell newspapers, (b) sell and deliver milk, (c) walk, ride or drive for recreation, (d) hire horses and carriages or other conveyances for riding and driving, or (e) engage or take part in any form of recreation, sport, or amusement that is not unlawful on other days of the week, if in so doing such person or corporation does not disturb others in their observance of Sunday,"

subject to local regulation of recreation, sports or amusements. This exception was introduced by P.L. 1933, c. 115, although it had first appeared in somewhat different form in P.L. 1893, c. 24.

In 1951 there began a series of events which contributed a comic-opera touch to this delicate subject. In that year, Title 2 was revised. With respect to Sunday laws, the tentative draft cryptically recommended "Repeal, obsolete." The backdrop was widespread indifference to "blue laws," the archaic character of much of its content, and the absurdly ineffectual penalties then existing ($1 for most violations). The Legislature however did not follow the recommendation but rather revised the language and eliminated all penalties. The foreword to the revision explained:

"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."

N.J.S. 2 A:171-1 of the 1951 revision replaced extensive verbiage with a single sentence:

"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."

Yet the sweep of the "blue law" remained. Whereas in other jurisdictions the concept of "necessity" could be and was inflated to meet reasonably the taste and habits of new generations, here the term remained inelastic. This was so because the following section, N.J.S. 2 A:171-2, excluded

only "the preparation and sale of drugs, meals, prepared food and non-alcoholic beverages on Sunday" and "sales of alcoholic beverages which are otherwise subject to regulation under Title 33 of the Revised Statutes." Furthermore, although the explicit prohibition against "traveling" and various recreational activities expressed in the earlier statute was not specifically repeated in the revision, yet N.J.S. 2 A:171-6 continued the earlier provision which, only upon adoption of the act by local referendum, permitted walking, riding or driving for recreation; hire of conveyances for riding and driving; participation in any form of recreation, sport or amusement; and such routine matters as the publication and sale of newspapers and the sale and delivery of milk See Hertz Washmobile System v. South Orange, 41 N.J. Super. 110, 130-31 (Law Div. 1956), affirmed 25 N.J. 207 (1957). Thus the rigid policy of the earlier law was continued, without, however, the aid of penalties.

The revision of 1951 presumably placated the religiously sensitive without pain to those who preferred secular pursuits. In the year of its adoption the solution was not provocative; indeed it came virtually without comment. But shortly thereafter the scene changed. Retail operations spread rapidly upon highways and Sunday selling mounted dramatically. The urban merchant could not effectively meet the challenge. The major roads, already burdened by non-commercial travel, strained under the added stress. Religious observants of the Lord's Day resented the added hustle and bustle. Economic pressures compelled labor by many who preferred diversion. Thus Sunday closing returned to the stage. Motivations, divergent and internally incongruous, converged upon a single objective. What historically may have been solely a matter of religious concern became a social and economic issue. The statute had not been designed to meet the new problem.

Events moved so rapidly that the revision of 1951 was soon before us for interpretation. An effort was made to prosecute a Sunday operation on the thesis that despite the repeal of the $1 penalty the revision should be held to

denounce an infraction as a disorderly persons offense, carrying a maximum penalty of one year imprisonment and a fine of $1,000. A majority of the court could find no such purpose, adding that while the statute's "effect on a criminal proceeding instituted, such as the one here, produces an anomaly the most that this court can do is call the attention of the Legislature to the result." State v. Fair Lawn Service Center, Inc., 20 N.J. 468, 474 (1956).

As noted above, the foreword of the 1951 revision stated municipalities retained "the power, they theretofore had, to control and regulate Sunday activity." Municipalities sought to meet the new problem but faced formidable difficulties. First, municipalities, if they legislated, had to adhere to the unrealistic and generally unpalatable policy of the State as established and continued in the revision. We are informed that but three of the 567 municipalities adopted conforming ordinances. Efforts to adopt different policies failed because of the restraining effect of the policy established by the state law. Auto-Rite Supply Co. v. Woodbridge Twp., 25 N.J. 188 (1957); Hertz Washmobile System v. South Orange, 25 N.J. 207 (1957). Second, the problem not being localized by municipal boundaries, a municipality could not protect itself from the activities of its neighbors. Hence pressure developed for a state-wide or regional approach.

Among the sections of the State, economic interests and citizen habits were irreconcilable. The resort areas or much of them wanted no part of Sunday closing. A compromise emerged in the form of chapter 138 of the Laws of 1958, N.J.S. 2 A:171-5.1 et seq. It prohibited the sale of certain categories of commodities in 18 of the 21 counties. That act was declared unconstitutional in Sarner v. Township of Union, 55 N.J. Super. 523 (Law Div. 1959) on the ground that the exclusion of three counties was arbitrary. No appeal was prosecuted.

Thereupon the Legislature adopted the statute assailed in the present case. It follows substantially the pattern of

the act adjudged invalid in Sarner except that in lieu of the provision for operative effect in 18 counties the act is operative only in such of the 21 counties as may adopt it upon referendum. At the election of November 1959 the act appeared on the ballot in 15 counties. It was adopted in 12 and failed in the remaining three. The present case was started before the election but decision was withheld, apparently by consent, until after the votes were tallied.


Plaintiffs assert the statute is beyond the police power of the State; that it contravenes the ban against the union of State and Church in the Federal Constitution (First and Fourteenth Amendments) and in the State Constitution (Art. I, par. 4); and that if the act can survive critical inquiry as to power to legislate, nonetheless the classification of what may and may not be sold denies equal protection of the law guaranteed by the Fourteenth Amendment and the State Constitution. Washington National Insurance Company v. Board of Review, 1 N.J. 545 (1949). Reliance is also placed upon the concluding paragraph of Article IV, § 7, par. 9 of the State Constitution, providing that "The Legislature shall pass general laws * * * for all * * * cases which, in its judgment, may be provided for by general laws."

The Legislature did not recite the facts it found. Nor is there any legislative history to aid us in this fundamental inquiry. We accordingly must probe for the answer within the context of the statute itself with such help as the general background of the subject may afford. Our task is made even more difficult by the circumstance that we must choose between what the Legislature said and what it did. Specifically, in our view as will presently be enlarged upon, the validity of chapter 119 depends upon whether it merely supplements the revision of 1951, N.J.S. 2 A:171-1 et seq. (hereinafter called "the 1951 revision") or supersedes its policy.

Chapter 119 is entitled:

"An act concerning the observance of the first day of the week, commonly known as Sunday, and providing penalties for engaging in the business of selling or offering to sell or attempting to sell clothing or wearing apparel, building and lumber supply materials, furniture, household and office furnishings and appliances on Sunday, and supplementing chapter 171 of Title 2A of the New Jersey Statutes, and providing that such act shall not be operative in any county unless and until the voters thereof by referendum shall determine that it shall apply therein."

Section 1 prohibits the sale or offer to sell at retail, wholesale or auction of the categories of articles described in the title "except as works of necessity and charity or as isolated transactions not in the usual course of the business of the participants." A violator is made a disorderly person. The fines are graduated to a maximum of $500 depending upon the number of offenses, and imprisonment for 30 days is additionally authorized for a third offense and up to six months for a fourth or subsequent offense. A single sale or offer constitutes a separate violation. Section 2 further provides that upon four convictions the premises shall be deemed a nuisance. Section 4 reads in part:

"This act shall be construed as an additional remedy to secure proper Sunday observance * * *."


In dealing with the constitutional attacks, we shall first assume chapter 119 is a supplement to the 1951 revision and is designed to provide "an additional remedy" for its enforcement, as the Legislature has described it.


The first issue is whether the 1951 revision violates the edict of the First Amendment as made applicable by the due process clause of the Federal Constitution, that a state:

"* * * shall make no law respecting an establishment of religion,"

or of Article I, par. 4 of the State Constitution that:

"There shall be no establishment of one religious sect in preference to another."

If the revision is thus vulnerable, both it and chapter 119, as a mere supplement to it, would fall.

We have no doubt that our State Constitution forbids Sunday legislation designed to support as such the tenets of any sect, however dominant, or to protect as such the religious sensibilities of members of any faith or for that matter of all faiths. In Tudor v. Board of Education, supra (14 N.J. 31), this court unanimously held that a board of education could not permit the distribution of the King James version of the New Testament. The court there accepted (14 N.J., at page 44) as definitive of the State Constitution the view of the Federal Constitution expressed in Everson v. Board of Education, 330 U.S. 1, 15, 18, 67 S. Ct. 504, 91 L. Ed. 711, 723, 724-25 (1947):

"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. * * *

Hence if the 1951 revision was fashioned for such purpose, we could not sustain it under the Constitution of our State. We think that upon the same hypothesis the United States Supreme Court would reach the same result under the Federal Constitution. This, we believe, is the inevitable thrust of the opinions of that tribunal discussed in Tudor. Indeed, in Zorach v. Clauson, 343 U.S. 306, 314, 72 S. Ct. 679, 96 L. Ed. 954, 962 (1952) appears the incidental observation that a state "may not coerce anyone * * * to observe a religious holiday," which, we take it, refers not only to compulsion to attend services but also to compulsion to desist from activity merely because it offends

the creed of others. We find nothing to the contrary in Hennington v. Georgia, 163 U.S. 299, 16 S. Ct. 1086, 41 L. Ed. 166 (1896); Petit v. Minnesota, 177 U.S. 164, 20 S. Ct. 666, 44 L. Ed. 716 (1900) or in Friedman v. People, 341 U.S. 907, 71 S. Ct. 623, 95 L. Ed. 1345 (1951), which dismissed for want of a substantial federal question the appeal from the judgment of the New York Court of Appeals, 302 N.Y. 75, 96 N.E. 2 d 184 (1950). In none of those cases was the state law deemed locally to be a measure to protect as such the religious character of the Sabbath. The rationale of the statutes in Hennington and Petit was in secular terms, to protect the public health and welfare against the hurt of uninterrupted labor. And in Friedman, the New York court carefully eschewed a religious objective, saying the Legislature "recognizes Sunday as a day for rest, play, relaxation and recreation rather than merely as a religious Sabbath." (96 N.E. 2 d, at page 186.) Cf. Two Guys from Harrison-Allentown, Inc. v. McGinley, 179 F. Supp. 944 (D.C.E.D. Pa., Dec. 1, 1959), probable jurisdiction noted, 80 S. Ct. (1960); Crown Kosher Super Market of Mass., Inc. v. Gallagher, 176 F. Supp. 466 (D.C. Mass. 1959), probable jurisdiction noted, 80 S. Ct. (1960).

If in truth Sunday statutes were enacted in the Colonies solely to achieve sectarian ends, it would be of no consequence in this constitutional inquiry. We think it plain that the ban against the union of Church and State was intended to break with the past rather than to imbed the practices the colonists had brought with them. Everson v. Board of Education, supra. The union of Church and State had spawned centuries of bloodshed and oppression. Religious persecution and discrimination continued in the New World. See Tudor and Everson, supra. Even our colonial Constitution of 1776, while assuring freedom of worship (Art. XVIII) and prohibiting the establishment of a religious sect (Art. XIX), guaranteed only members of the Protestant faith against the denial of civil rights and the right to hold

public office (Art. XIX). It was upon our soil that religion was truly liberated, and this by divorcement from both the support and the restraint of government. The "wall of separation" rose from a conviction, easily renewed from current events elsewhere, that the union of Church and State is mutually baneful, incurring for each the hostility of those who dissent from the other.

The question, therefore, is whether the 1951 revision was in fact enacted to serve religious interests. Preliminarily, it may be said that an affirmative answer cannot be found in the naked circumstance that the policy of a statute coincides with the views of a sectarian group. For example, the State may denounce murder, larceny, and adultery, notwithstanding that religions also proscribe those acts. Generally, Sunday statutes prohibit the pursuit of one's regular calling on the Sabbath. As already indicated in our reference above to Hennington and Petit, the claimed purpose is to protect against physical and moral debasement consequent upon uninterrupted labor. It is upon that basis that the prevalent type of Sunday law is sustained. Auto-Rite Supply Co. v. Woodbridge Twp., supra (25 N.J., at page 192); 50 Am. Jur., Sundays and Holidays, § 9, at p. 808. An identification between seven days of labor and the public health, safety, morals and welfare cannot be denied. Indeed, for all we know, the command at Mount Sinai may also have been addressed to the same objective. At any rate, if the secular and sectarian motivations should be different, the power of the State is not preempted by the circumstance that religion was first upon the scene.

If the Legislature prohibited a seventh day of regular labor without banning work on a specific day, the secular motivation would be unobscured. It is the selection of the Christian Sabbath which suggests religious orientation. But again the Church and State meet on common ground in pursuit of their respective interests. The fact is that Sunday has acquired a special character differentiating it from the other days of the week and this without reference to religious

connotation. Today Sunday is many things to many people. It is a day upon which the vast majority of citizens seek respite from the pressures and demands of ordinary routines. To some, it is a day for religious devotion alone. To others, whether or not members of faiths commanding religious observance, it is a secular holiday, a day for play, hobbies, recreation or relaxation. To still others, it is a combination of all of these. It is a day for family and friendly reunions. Most people want Sunday for themselves to do as they feel they should, each to prepare himself in his own way to meet the demands of Monday morning.

Thus the public health and welfare are implicated when the hustle and bustle mount and intrude unreasonably upon opportunities for rest, leisure and diversion. The inroad may be in terms of direct interference as, for example, when commercial activities add to highway traffic to the discomfort of the Sunday driver or otherwise impinge upon a scene conducive to rest, diversion and recreation. The inroad may be indirect but equally real as when those who want to be free on Sunday find the economic aims of their employer compel them to work to hold their jobs, or when the economic impact upon employers requires them and their staffs to remain at the grindstone. Hence we cannot say that Sunday may not constitutionally be selected by the Legislature in pursuit of a purpose to provide relief from the routine. Auto-Rite Supply Co. v. Woodbridge Twp., supra (25 N.J., at page 192); Hennington v. Georgia, supra (163 U.S., at p. 304, 16 S. Ct. 1088, 41 L. Ed., at page 169); Lane v. McFadyen, 259 Ala. 205, 66 So. 2 d 83, 85 (Sup. Ct. 1953); Tinder v. Clarke Auto Co., 238 Ind. 302, 149 N.E. 2 d 808, 814-815 (Sup. Ct. 1958); Humphrey Chevrolet v. City of Evanston, 7 Ill. 2 d 402, 131 N.E. 2 d 70, 72, 57 A.L.R. 2 d 969 (Sup. Ct. 1956); State v. Weiss, 97 Minn. 125, 105 N.W. 1127, 1128 (Sup. Ct. 1906). The question whether that legislative decision impinges upon the freedom of those who observe religiously the seventh day of the week may be another matter. See

Crown Kosher Super Market of Mass., Inc. v. Gallagher, supra (176 F. Supp. 466). It is not before us, and we intimate no view.

The difficulty with the 1951 revision is that, unlike the usual type of Sunday law, it goes far beyond the objective of a day of respite from uninterrupted labor. It bans (although without present penalty) all forms of recreation. Even walking for pleasure is denounced, except upon approval by local referendum. One is hard put to find a fair connection between such restraints and any known threat to the public health, safety, morals or welfare. The puritanical theme of the act strongly suggests orientation to a sectarian desire to protect the Sabbath as such against "desecration." If such is not the purpose, then in any event it is difficult to find a basis under the police power for such extraordinary restraint upon individual freedom.

We have discussed this constitutional issue with respect to the 1951 revision with no purpose to decide it. We need not decide it because, for other reasons momentarily to be stated, chapter 119 cannot be upheld if it seeks to implement the policy of the revision. The discussion nonetheless remains useful, for it relates to the same Church-State issue to which we will later refer in dealing with the validity of chapter 119 viewed as an independent statute rather than as a supplement to the prior law.


If chapter 119 merely supplements the 1951 revision, it must be deemed to be addressed to the same evil which the revision found and to the same legislative objective. Upon that premise, chapter 119 cannot be sustained because its classification of what may and may not be sold is wholly unrelated to that evil and objective and accordingly it denies equal protection of the law.

Few issues are more troublesome than that of classification. In N.J. Restaurant Assn. v. Holderman, 24 N.J. 295, 300 (1957), we said:

"The burden of demonstrating that a statute contravenes the equal protection clause is extremely formidable, as is attested by the long trail of failure. In addition to the strong presumption of constitutionality with which all organic challenges are approached, one who assails a statute on this ground must contend with principles of unusual elasticity. It is easily stated that the classification (1) must not be palpably arbitrary or capricious, and (2) must have a rational basis in relation to the specific objective of the legislation. But the second proposition is qualified by limitations which compound the difficulties of one who assails the legislative decision. Thus it is not enough to demonstrate that the legislative objective might be more fully achieved by another, more expansive classification, for the Legislature may recognize degrees of harm and hit the evil where it is most felt. [Citations omitted.] The Legislature may thus limit its action upon a decision to proceed cautiously, step by step, or because of practical exigencies, including administrative convenience and expense, * * * or because of 'some substantial consideration of public policy or convenience or the service of the general welfare.' DeMonaco v. Renton, 18 N.J. 352, 360 (1955). Hence it may 'stop short of those cases in which the harm to the few concerned is thought less important than the harm to the public that would ensue if the rule laid down were made mathematically exact.' Dominion Hotel, Inc. v. State of Arizona, supra (249 U.S. [265] at page 268, 39 S. Ct. [273] at page 274 [63 L. Ed. 597]). * * *"

In applying these principles, we must first ascertain the evil the Legislature found and then measure against it the reasonableness of the classification. The evil, as revealed by the scope of the 1951 revision, was an impairment of public health consequent upon uninterrupted labor. Work was found to be consistent with the public welfare only in the area of necessity and charity, the concept of necessity being, as we have already pointed out, exceedingly narrow and tight. More than that, the evil may fairly be said to have been found in virtually all activity, for the revision denounced even recreation except ...

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