On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J. Francis, J., concurring in result.
The complaint charges the Sunday closing ordinance of the Borough of Paramus is unconstitutional and seeks a restraint against its enforcement. The trial court entered judgment for defendants. We certified plaintiffs' appeal on our motion before the Appellate Division acted upon it.
Plaintiffs operate discount department stores on Route 4 and Route 17 in Paramus. The ordinance in question became effective November 10, 1957. The complaint was filed six days later. We gather that plaintiffs abided by the ordinance until the effective date of Chapter 138 of the Laws of 1958, when they resumed operations on the thesis that the state act superseded the borough's ordinance. They closed again when local officials took a contrary view. The events last described occurred after the suit was instituted but the issues revolving about them were added by supplemental pretrial order.
The views we here express are confined to the precise issues raised.
At the time of the adoption of the ordinance, the state Sunday law, N.J.S. 2 A:171-1 et seq., was barren of penalties and constituted, as was found in State v. Fair Lawn Service Center, Inc., 20 N.J. 468 (1956), a mere declaration of state policy. The statute however operated to prevent a municipality from adopting an ordinance violative of its policy under the general principle that powers delegated to local government may not be exercised in conflict with 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).
The decisions last cited were announced a few weeks before the effective date of the ordinance here challenged. The ordinance squares fully with the terms of N.J.S. 2 A:171-1 et seq., and hence is not vulnerable to the attack which succeeded in those cases. Plaintiffs nonetheless say that so much of the opinions in those cases as indicated municipalities could legislate on the subject if they conformed to the state law was dictum and unsound. As we understand it, they contend the state statute just cited foreclosed local legislation even though an ordinance fully conformed with its policy on the ground that the imposition of penalties by one municipality and not by another denies equal protection of the law. Perhaps the challenge embraces as well the further proposition that Sunday closing is inherently a matter for state action alone and hence power to deal with it may not be delegated to local government. These issues were fully discussed and resolved against plaintiffs in our recent decision in Two Guys From Harrison, Inc. v. Furman, 32 N.J. 199 (1960). We there reiterated: (1) the police power delegated to municipalities (R.S. 40:48-2) does and constitutionally may embrace authority to legislate on this subject; (2) N.J.S. 2 A:171-1 et seq. affected municipal power only by way of limiting its exercise to ordinances which did not conflict with the state law;
and (3) the circumstance that a municipality chooses to exert its police power while neighboring municipalities remain inert is the inevitable consequence of home rule and does not result in a denial of equal protection of the law.
It is next urged that equal protection is denied in another aspect, to wit, that some activities are permitted by the ordinance while others are not, despite the ...