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MONTELEONE v. FURMAN

January 26, 1961

Joseph MONTELEONE, Margaret Van Sciver, Dorothy Miller, Bargain City, U.S.A., a corporation of the Commonwealth of Pennsylvania and Rockower Brothers, Inc., a New Jersey corporation, Plaintiffs,
v.
David D. FURMAN, Attorney General of the State of New Jersey, Alvin R. Granite, Prosecutor of Gloucester County, Edwin Erickson, Chief of Police, Deptford Township, Defendants. VORNADO, INC., a Kansas corporation, Jaunty Dress Shops, Inc., a New Jersey corporation, Alfar Shops of Neptune, Inc., a New Jersey corporation, Alfar Shops of Garfield, Inc., a New Jersey corporation, Alfar Shops of North Bergen, Inc., a New Jersey corporation and Edward Reiff, Plaintiffs, v. David D. FURMAN, Attorney General of the State of New Jersey, Guy W. Calissi, John G. Thevos, Frank P. Scerbo, Lawrence A. Whipple, Edward J. Dolan, Vincent P. Keuper, Arthur S. Meredith, H. Douglas Stine, Prosecutors of the Pleas of the Counties of Bergen, Passaic, Morris, Hudson, Middlesex, Monmouth, Somerset and Union, respectively, James C. Pellington, Ralph Schrader, John Schlicht, Fred Wandres, Mark S. Masters, Carmine Perrapatto, Louis J. Rischer, John Egan, Walter Pich, Ralph Barrett, Edward Flaherty and Edward Shoemaker, Chiefs of Police of the Borough of Totowa, Township of East Hanover, Township of North Bergen, Town of Kearney, Borough of Maywood, City of Garfield, Borough of Fairlawn, Township of Woodbridge, Township of East Brunswick, Borough of Watchung, City of Elizabeth and Borough of Neptune City, respectively, Defendants



The opinion of the court was delivered by: FORMAN

The defendants are respectively officers primarily responsible for the enforcement of the law in the state, county and municipality in which Bargain City's store is located.

 In the second case (Docket No. 1051-60) plaintiff, Vornado, Inc. is a Kansas corporation, authorized to do business in New Jersey, and similarly to Bargain City is engaged in leasing concessions and operating discount stores at various places in New Jersey.

 The plaintiffs, Jaunty Dress Shops, Inc.; Alfar Shops of Neptune, Inc.; Alfar Shops of Garfield, Inc. and Alfar Shops of North Bergen, Inc., New Jersey corporations, are among approximately 15 concessionaires of Vornado. Each conducts a concession in one or more locations of Vornado in various municipalities and counties in New Jersey.

 The plaintiff, Edward Reiff, is an employee of Vornado at its store in Garfield, Passaic County, New Jersey.

 The defendants include David D. Furman, the Attorney General of New Jersey, and the several officers principally responsible for the enforcement of the law in the municipalities and counties where the plaintiffs are engaged.

 Since the purpose of the second suit is identical with that of the first they were ordered consolidated.

 Jurisdiction in both cases is alleged under 28 U.S.C.A. § 1343.

 In both cases plaintiffs seek injunctions to restrain defendants from enforcing the Act against them, alleging that its enforcement will result in irreparable damage because of (1) the loss of Sunday business in the articles banned; (2) the threat that the continued loss of Sunday business in such articles will cause 'them to close their entire store premises on Sunday' which, it is claimed, will deprive them of a large portion of their weekly sales; and (3) the possible declaration of a nuisance and confiscation of personal property located upon the premises 'which will result in the possible loss to the plaintiffs * * * of merchandise having the value of many hundreds of thousands of dollars.'

 The plaintiffs also request this court to declare the Act and defendants' actions in enforcing the same as violative of the Constitution of the United States on the grounds, among others, that they (1) violate the First and Fourteenth Amendments in that the Act is on its face a law respecting the establishment of a religion or religions and prohibit the free exercise of religion; (2) violate the Fourteenth Amendment in that the Act denies the plaintiffs equal protection of the law and deprives them of their property and liberty without due process of law because

 'the selection of the items set forth, the exclusion of other similar items by their not being set forth and the fines and penalties provided for therein, including possible confiscation of all merchandise located upon the store premises is arbitrary and without reasonable basis for classification';

 and (3) violate the Fourteenth Amendment by denying plaintiffs equal protection of the law and depriving them of their liberty and property without due process of law by working an unjust discrimination against plaintiffs in favor of other types of retail outlets

 'by reason of the nature of the business of discount department store operation wherein plaintiffs and plaintiffs' concessionaires conducted their business for the benefit of week end consumers * * *'.

 The defendants moved to dismiss on the grounds that (1) reasons of policy and comity require that this court should decline to adjudicate the controversy and (2) that previous judicial decisions authoritatively establish that the Act does not violate freedom of religion and does not constitute a ...


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