These three appeals from the Deptford Township Municipal Court were heard together on Thursday, October 6, 1960. Defendants were convicted in municipal court of violating the "Sunday Closing Law," L. 1959, c. 119; N.J.S.A. 2 A:171-5.8 et seq.
Defendants did not deny the sales of articles within the banned categories. The appeal was an attack on the constitutionality of the law. Defendants were all employed by concessionaires in a supermarket known as "Bargain City, U.S.A.," Store No. 3, located in Deptford Township, Gloucester County, New Jersey.
Defendants, by evidence and statistics offered through witnesses who were officers or employees of "Bargain City, U.S.A.," attacked the law on three points:
1. The law is an act denying the free exercise of religion. No testimony was offered on this point, but counsel argued the point in defendants' brief. Our Supreme Court in Two Guys From Harrison, Inc. v. Furman , 32 N.J. 199 (1960), held otherwise saying the act does not offend the ban against church-state union. I am bound by that decision.
2. Classifications of articles saleable on Sunday are discriminatory. The only evidence offered on this point was Exhibits D1 and D2, one a list of articles saleable on Sunday and the other a list of articles that could not be sold on Sunday. Argument was to the effect that there is no reasonable or rational basis for the classifications made by the Legislature, the classifications being arbitrary and unreal.
The Supreme Court's decision in Two Guys From Harrison left this question open and indicated in its decision that evidence on this point should be considered. The Supreme Court said, however, "We must uphold a classification unless it is plainly demonstrated to be capricious. The required showing is not made merely by contrasting items which may and may not be sold." There is strong dictum in that opinion, 32 N.J. , at pages 228 and 229, that the classifications are matters for the Legislature. On the basis of the two lists submitted to me I do not see how I am in
a position to override the expressed will of the Legislature and the dictum of the Supreme Court.
3. The law violates Article I, paragraph 12 of the New Jersey Constitution , which provides that "Excessive bail shall not be required, excessive fines shall not be imposed, and cruel and unusual punishments shall not be inflicted." Defendants argue that under section I of L. 1959, c. 119, fines and jail sentences become greater after repeated offenses; that section 2 of the act provides that after four convictions the premises involved shall be deemed to be a nuisance; that section 4 of the law makes directors, officers, managers, agents or employees of corporations personally liable.
The penalty for a first offense is $25, and no jail sentence is permitted until third conviction is had. This can hardly be said to be cruel and unusual punishment.
The principle of imposing greater penalties for subsequent offenses needs no defense. It is recognized in other statutes, such as the penalty for a second conviction on a charge of drunken driving and other Motor Vehicle Act violations (R.S., Title 39), Drug Act violations (R.S. 24:18-47) and certain criminal violations, to mention a few. The principle is also recognized in the parole statutes (N.J.S.A. 30:4-123.12), which provide that second and third and fourth offenders must serve a greater proportion of their sentences before becoming eligible for parole; and it is a matter of common knowledge that judges, almost without exception, will punish a recidivist more severely than they will a first offender.
The nuisance feature is almost a necessity in enforcing statutes such as chapter 119. There are always a few "scofflaws" who must learn the hard way. Padlocking "speakeasies" was never considered unconstitutional, and we have been prosecuting and convicting owners of premises where the law is habitually violated as ...