Yaccarino, J.s.c., Temporarily Assigned.
This is a trial de novo on the record. Defendant was convicted in the Hazlet Township Municipal Court on two counts of the Sunday Closing Law, N.J.S.A. 2A:171-5.8. A fine of $100 plus costs was imposed on each violation.
At the hearing below defendant made three separate pretrial motions. First, it moved to dismiss the complaints because they failed to properly inform defendant of the charges against it. The municipal judge denied the motion. Defendant next moved to dismiss the complaint for failure to charge a crime under the statute, which prohibits certain activities on Sunday, except "as works of necessity or charity or as isolated transactions not in the usual course of the business of the participants." The complaints did not negative the exceptions in the statute; there was no allegation that defendant was not within the statutory exceptions. The motion was denied. Defendant then moved to dismiss the complaints on the grounds that part of the statute referring to the exception for works of necessity and charity was unconstitutionally vague. That motion was denied. Defendant then entered a plea of not guilty.
The facts are undisputed. Joseph Kahn, one of the complainants, testified that he purchased a boy's shirt in the K-Mart Store in Hazlet on Sunday, December 15, 1974, for $2.77. George Beaman, the other complainant, testified that he purchased a man's shirt in the K-Mart store in Hazlet on Sunday, December 15, 1974, for $4.56.
At the end of the State's case defendant renewed its motions to dismiss; again the judge denied the motions. The judge then found defendant guilty of both offenses.
Defendant's argument is based on the interpretation to be given N.J.S.A. 2A:171-5.8. It argues that the complaint is insufficient as a matter of law, and asserts that the complaint did not adequately apprise defendant of the charges against it and did not charge a crime because it did not negative the exceptions in the statute. Defendant also claims that the exception in the statute, to wit, "works of necessity and charity," is unconstitutionally vague.
The statute under present scrutiny is N.J.S.A. 2A:171-5.8, which reads:
On the first day of the week, commonly known and designated as Sunday, it shall be unlawful for any person whether it be at retail, wholesale or by auction, to sell, attempt to sell or offer to sell or to engage in the business of selling, as hereinafter defined, clothing or wearing apparel, building and lumber supply materials, furniture, home or business or office furnishings, household, business or office appliances, except as works of necessity and charity or as isolated transactions not in the usual course of the business of the participants.
Any person who violates any provision of this act is a disorderly person and upon conviction for the first offense, shall pay a fine of $25.00; and for the second offense, shall pay a fine of not less than $25.00 or more than $100.00 to be fixed by the court; and for the third offense, shall pay a fine of not less than $100.00 or more than $200.00 to be fixed by the court or, in the discretion of the court, may be imprisoned for a period of not more than 30 days, or both; and for the fourth or each subsequent offense, shall pay a fine of not less than $200.00 or more than $500.00 to be fixed by the court or, in the discretion of the court, may be imprisoned for a period of not less than 30 days or more than 6 months, or both. A single sale of an article or articles of merchandise of the character hereinabove set forth to any 1 customer, or a single offer to sell an article or articles of such merchandise to any 1 prospective customer, shall be deemed to be and constitute a separate and distinct violation of this act.
Defendant contends that the State has failed to either plead or prove that defendant is not within the exception set forth in the enacting and prohibiting clause of the statute. It relies on the case of West Orange v. Jordan Corp., 52 N.J. Super. 533 (Cty. Ct. 1958). The ordinance there
proscribed all wordly employment or business "except works of necessity and charity." The court held that the town had the burden to negative in its complaint and to show by its proof that ...