The sole issue on this appeal from the Municipal Court of the Borough of Paramus is the validity of the borough ordinance which was the basis for defendant's convictions.
The facts are not disputed. The Borough of Paramus is located in central Bergen County and has within its boundaries several major arterial highways serving not only the borough but the county and State as well. Along the routes of those highways are numerous retail business establishments, a great number of which are grouped together in major shopping centers. Defendant Martin Paint Stores, Inc. operates a chain of retail stores which sell paint, home decorating merchandise, and hardware. One of defendant's stores is located within the Garden State Plaza, the largest of the shopping centers in Paramus.
During the month of May 1972 the Borough of Paramus enacted ordinance 72-11, which was entitled:
An ordinance prohibiting worldly employment or business, except works of necessity and charity on the legal holidays designated Memorial Day, Independence Day (4th of July) and Thanksgiving Day in the Borough of Paramus, County of Bergen, State of New Jersey, and providing penalties for the violation thereof.
As indicated by its title, ordinance 72-11 is a "holiday closing" ordinance which requires most businesses to remain closed on the three named legal holidays. Exceptions are made for the conduct of certain business activities substantially identical to those permitted under the State's Sunday closing statute. N.J.S. 2A:171-1 et seq.
On May 29 (Memorial Day) and on July 4, 1972 defendant's Paramus store was open for and did in fact transact business, contrary to the provisions of the ordinance. Subsequently, defendant was found guilty of violating the ordinance on each of the holidays and fined $75 plus $10 costs for each violation.
Defendant challenges the validity of the ordinance on two grounds: it asserts that ordinance 72-11 is either ultra vires because it is contrary to the legislative policy declared by N.J.S.A. 36:1-2, or that it is unconstitutional because its arbitrary classification of proscribed activities violates the equal protection provisions of the Federal and State Constitutions. In keeping with settled judicial policy, the constitutional issues will not be examined since in the court's view the ordinance is ultra vires , and a determination of the constitutional issues is therefore unnecessary. State v. Fairlawn Service Center Inc. , 20 N.J. 468, 470-471 (1956); Donadio v. Cunningham , 58 N.J. 309, 325-326 (1971).
The question for consideration here is essentially whether N.J.S.A. 36:1-2 declares a state policy which preempts any conflicting municipal action under the Home Rule Act, N.J.S.A. 40:48-1 et seq. The question is one of first impression, although the Appellate Division, in a dictum in Elizabeth v. Windsor-Fifth Avenue , 31 N.J. Super. 187 (App. Div. 1954), expressed the view that the licensing provisions of the Home Rule Act, N.J.S.A.
40:52-1(g) do not sanction such action. The answer to the question obviously requires an examination of the legislative intent which must be inferentially determined.
Chapter 1 of Title 36 of the New Jersey Statutes creates and defines legal holidays. It also proscribes certain activities on those days designated as holidays and half-holidays. The main thrust of those proscriptions is directed at the commercial banking field. Since its original passage in 1891 this chapter has been amended many times, most recently by L. 1969, c. 132. The various amendments generally have created new holidays, established new dates of observance for existing holidays, or changed the degree and extent to which Saturday would be considered a holiday or half-holiday. Despite these numerous amendments during the 81 years ...