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June 24, 1963

Dave FASS et al., Plaintiffs,
Frederick ROOS, etc., et al., Defendants

The opinion of the court was delivered by: MCLAUGHLIN

This is the aftermath of a New Jersey Sunday Closing Law case which has been fully and fairly litigated and completely resolved. It is prosecuted in good faith but at this stage, it, at the very least, shapes up as bordering on the frivolous.

It started out as a deliberate test case of the New Jersey Sunday Closing Law, N.J.S.A. 2A:171-5.8 to 171-5.18. There were two plaintiffs at that time, Dave and David Fass. They owned a retail floor covering store in West New York, New Jersey. Floor coverings are specifically included as 'home furnishings' within the Sunday sale ban. On November 3, 1959, the Sunday Closing Act was made applicable to Hudson County, New Jersey which includes the Town of West New York. Plaintiffs' store had been open to the public for business on Sunday since 1956. It continued that practice after November 3, 1959 and the sales operations were precisely the same as on week days. On Sunday, November 29, 1959, the store was open for business as usual. It is admitted that the store has a full glass front and side on the two streets, the glass, about 11 feet high, extending from the sidewalk to the ceiling level. There are double entrance doors, also of glass. The full interior of the store can be seen from the public sidewalk. The ordinary person approaching the place would realize that the business being conducted there was the sale of floor covering. As Fass described the scene, it is not necessary to put or keep goods in or at the window because you can see the whole store through the window.

 On November 29, 1959, at the time Dave Fass was arrested in his store charged with making a sale of merchandise there on that day in violation of the Act, the entrance door was open for admission of the public, the lights were on and four or five salesmen, in addition to Fass, were on duty when the particular sale of carpeting was made. While the complaint against Fass was pending in West New York, the complaint in this case was filed and a preliminary and permanent injunction sought staying the operation of the Sunday Law and asking that it be declared unconstitutional. On December 11, 1959, this court denied the application for a preliminary injunction. In addition, a stay of this suit was granted pending the determination of an action then before the New Jersey Supreme Court ( Two Guys From Harrison, Inc. v. Furman, Attorney General, 32 N.J. 199, 160 A.2d 265) which directly concerned the constitutionality of the Sunday statute. On June 2, 1960, this court denied application for vacation of that stay and continued it pending conclusion of the West New York proceedings against Dave Fass and until determination by the United States Supreme Court of the various Sunday Closing appeals before it. The court opinion strongly urged that the West New York violation matter in which there had been a conviction in the municipal court be passed upon by the Hudson County Court of Common Pleas, as promptly as possible. Later there was an affirmance of that conviction and an appeal had to the New Jersey Supreme Court, 36 N.J. 102, 175 A.2d 193. The latter, in an exhaustive opinion, affirmed the conviction. The Court specifically considered and passed upon the contention of Fass that because of the exception granted him as a Sabbatarian under 2A:171-4 the sale of carpeting could not be considered a violation of the Sunday Closing Act. Section 4 reads:

 'If any person charged with having labored or worked on Sunday shall prove to the satisfaction of the court that he uniformly keeps the seventh day of the week as the Sabbath, habitually abstains on that day from following his usual occupation or business and from all recreation, and devotes the day to the exercise of religious worship, and if the work or labor for which such person is informed against was done and performed in his dwelling house or workshop, or on his premises, and has not disturbed other persons in the observance of the first day of the week as the Sabbath, then the defendant shall be discharged. This section shall not be construed to allow any such person to openly expose to sale on Sunday any goods, wares, merchandise or other article or thing in the line of his business or occupation.' (Emphasis supplied.)

 Fass on that appeal, as a Sabbatarian, asserted exemption from his Sunday sale prosecution for exactly the same reasons as he is now urging to this court under his theory of the alleged vagueness of above quoted Section 4. As the New Jersey Supreme Court said regarding his contention, 'He claims that immunity from prosecution is granted to all Sabbatarians, who observe Saturday religiously as described in section 4, and who do not sell their goods by hawking or crying them in the public streets or by maintaining open stands on the public streets or sidewalks, or, more generally, who do not conduct their business of selling in such manner as to interfere with or disturb the peace and tranquility of those seeking rest, recreation and diversion on Sunday.'

 And the Court held page 117 of 36 N.J., at page 201 of 175 A.2d:

 'If his place was open for the purpose of doing business indiscriminately with the public in the goods or wares usually sold therein, there was an open exposure to sale within the statutory proviso. Clearly the conduct of defendant's business as described above would have rendered the immunity inapplicable prior to 1959.

 'The state of Sunday closing regulation in New Jersey since enactment of L.1959, Chapter 119, indicates that the same view must be taken now. Apart from (1) the inferences to be drawn from both the history of Sunday closing legislation in England and in this country, (2) the plain meaning of the proviso withdrawing the immunity where the Sabbatarian openly exposes his goods to sale in the regular course of business, and (3) the emphatic language of Chapter 119 forbidding sale, attempt to sell, offer to sell, or engaging in the business of selling the listed items, the conclusion we have reached is expressive of the rationale of Two Guys from Harrison. The constitutionality of the limited Sunday restriction of Chapter 119 was sustained generally in that case on the theory that it probably represented an effort on the part of the Legislature to strike at the public evil associated with Sunday business activity where it was most pronounced.'

 The Court further said page 119 of 36 N.J., at page 202 of 175 A.2d: 'On the basis of our conclusion that on the admitted facts relating to the nature of the business operation on Sunday, Fass openly exposed goods barred from sale by L. 1959, Chapter 119, the judgment of conviction can be affirmed without more.' It went on '* * * to consider some further implications of the section 4 immunity for Sabbatarians in the framework of the 1959 act' (emphasis supplied) and stated:

 'Moreover, as Justice Frankfurter pointed out in McGowan, supra; ( McGowan v. State of Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961))

 "If it is assumed that the retail demand for * * * (the five classes of goods banned by the New Jersey Act of 1959) is approximately equivalent on Saturday and on Sunday, the Sabbatarian, in proportion as he is less numerous, and hence the competition less severe, might incur through the exception a competitive advantage over the non-Sabbatarian, who would then be in a position, presumably, to complain of discrimination against his religion.' 366 U.S. at p. 516, 81 S. Ct. at p. 1183, 6 L. Ed. 2d at p. 450. (Emphasis Justice Frankfurter's, but bracketed substitution ours. Of course, the New Jersey Act was not involved in McGowan.)

 'Justice Frankfurter's observation is more strongly pertinent in the factual context of this case because Fass opens his store about 20 minutes after sundown on Saturday. Thus, if he has legislative permission to open on Sunday, he not only has the business advantage described in McGowan but ...

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