On certification to the Superior Court, Law Division, Bergen County, whose opinion is reported at 148 N.J. Super. 343 (1977).
For reversal and remandment -- Chief Justice Hughes, Justices Sullivan, Clifford and Schreiber and Judge Conford. For affirmance -- Justices Pashman and Handler. The opinion of the court was delivered by Conford, P.J.A.D. (temporarily assigned). Sullivan, J. (concurring). Justice Clifford joins in this opinion. Pashman, J. dissenting. Handler, J., dissenting. Justice Pashman joins in this dissent. Sullivan and Clifford, JJ., concurring in the result.
Pending appeal in the Superior Court, Appellate Division, this Court granted direct certification to review a holding by the Superior Court, Law Division, 148 N.J. Super. 343, that the classification of merchandise forbidden to be sold on Sunday under and pursuant to the Sunday Closing Law, N.J.S.A. 2A:171-5.8 et seq. (L. 1959, c. 119), in counties opting for the statute by referendum, is "not reasonably related to the presumed purpose of the statute and is, hence, unconstitutionally arbitrary." 148 N.J. Super. at 360. The assumption must be that the constitutional defect discerned was the denial of equal protection of the laws, as the ruling purports to decide the question left open for factual exploration in our decision in Two Guys from Harrison, Inc. v. Furman, 32 N.J. 199 (1960) (" Two Guys," hereinafter). That issue was denial of equal protection. See id. at 211, 222.
The Sunday Closing Law was held in Two Guys to supersede and replace the 1951 revision of earlier Sunday closing legislation which comprehensively prohibited all Sunday employment or business except for works of necessity or charity. N.J.S. 2A:171-1 et seq. The 1951 revision contained only a $1 penalty for any violation. The present statute, adopted in 1959, provided that it should be effective
only in counties which chose to adopt it by referendum, and prohibited Sunday sale of only (1) clothing or wearing apparel; (2) building and lumber supply materials; (3) furniture; (4) home, business or office furnishings; and (5) household, business or office appliances. Substantial penalties were provided for violation. The law is presently effective in ten of the twenty-one counties.
Two Guys sustained the Sunday Closing Law against attack on grounds of violation of the constitutional ban against union of State and Church in both the federal and state constitutions. 32 N.J. at 226. It found adequate secular legislative objects for Sunday closing legislation in (1) relief from uninterrupted labor for seven days a week; and (2) eliminating or reducing interference with the ambiance of Sunday as a generally accepted common day for rest, relaxation, relief from everyday tensions and recreation (hereinafter, the "rest and relaxation object"). 32 N.J. at 215-216. However, the first basis was determined not to be rationally related to the classification of the Sunday Closing Law as it was relevant to all workers, not peculiarly those engaged in selling the five categories of proscribed merchandise. Id. at 218-219. The Court went on to hold the law facially valid from the standpoint of the rest and relaxation objective, but reversed a summary judgment dismissing the constitutional attack as related to that statutory purpose, ruling that while it might indeed "be difficult for plaintiffs to maintain their heavy burden of proof * * * they may not be denied an opportunity to try." Id. at 230.
The plaintiffs in the present case, who comprise the corporate successor of the plaintiff in the Two Guys case and certain of its employees, purport now to have adduced the proof requisite to establish the denial of equal protection not found as a matter of law in Two Guys. The trial court concluded that they were successful in that endeavor. We granted certification while the matter was pending unheard in the Appellate Division, 75 N.J. 584 (1977). We are constrained to disagree, and we reverse. We find trial error
in two broad respects: (a) with respect to the court's conception of the nature of the judicial responsibility vis a vis that of the Legislature in this area; and (b) with regard to the adequacy of the proofs submitted by plaintiffs to negate all reasonably conceivable purposes or objects for the statutory classification.
We find no merit in the cross-appeal of plaintiffs addressed to alleged vagueness of the statute and to the asserted selective and discriminatory enforcement thereof. We agree with the trial court's rejection of those contentions. See 148 N.J. Super. at 361-362.
Before examining the evidence in the case before us and the rationale of the trial court in holding it sufficient to invalidate the Sunday Closing Law, it is well to be reminded of certain cardinal principles required to be followed by the judiciary in passing upon the question as to whether a statutory classification of subject matter is invalid as a denial of the equal protection of the laws. Apart from the general presumption of constitutionality which attends every statute, the heart of the applicable criterion was expressed in WHYY Inc. v. Glassboro, 50 N.J. 6, 13 (1967), rev'd 393 U.S. 117, 89 S. Ct. 286, 21 L. Ed. 2d 242 (1968),*fn1 as follows:
The Legislature is presumed to have a valid classification in mind. Distinctions will be presumed to rest upon a rational basis if there be any conceivable state of facts which would afford reasonable support for them. (emphasis added).
The formidable nature of the burden resting on those who would establish the invalidity of a statutory classification in
an equal protection context is well delineated in N.J. Restaurant Ass'n. v. Holderman, 24 N.J. 295, 300 (1957), as quoted in Two Guys (32 N.J. at 218), as follows:
The burden of demonstrating that a statute contravenes the equal protection clause is extremely formidable, as is attested by the long trail of failure. In addition to the strong presumption of constitutionality with which all organic challenges are approached, one who assails a statute on this ground must contend with principles of unusual elasticity. It is easily stated that the classification (1) must not be palpably arbitrary or capricious, and (2) must have a rational basis in relation to the specific objective of the legislation. But the second proposition is qualified by limitations which compound the difficulties of one who assails the legislative decision. Thus it is not enough to demonstrate that the legislative objective might be more fully achieved by another, more expansive classification, for the Legislature may recognize degrees of harm and hit the evil where it is most felt. [Citations omitted.] The Legislature may thus limit its action upon a decision to proceed cautiously, step by step, or because of practical exigencies, including administrative convenience and expense, * * * or because of "some substantial consideration of public policy or convenience or the service of the general welfare." De Monaco v. Renton, 18 N.J. 352, 360 (1955). Hence it may "stop short of those cases in which the harm to the few concerned is thought less important than the harm to the public that would ensue if the rule laid down were made mathematically exact." Dominion Hotel, Inc. v. State of Arizona, supra (249 U.S.  at page 268, 39 S. Ct.  at page 274 [63 L. Ed. 597]). * * *"
Chief Justice Weintraub went on in Two Guys, supra, to say (32 N.J. at 219):
As stated in Holderman, a discrimination which in the nature of the subject matter would otherwise be invidious may be relieved of that character if, generally speaking, a rational basis may be found for it in terms of degrees of evil or in the practical problems inherent in the process of legislating or in enforcement.
The reason why a Legislature may strike at an evil where it finds it without first surveying the entire scene in which it may exist even in equal degree is an inescapable concession to the practicalities of a complex social and economic order. The legislative process would be hamstrung if the Legislature had to explore every nook and corner before it acted.
Subsequent to the decision in Two Guys the United States Supreme Court sustained the validity of Sunday closing statutes in Maryland and Pennsylvania, both containing numerous and varied exemptions, against attack on various grounds including denial of equal protection. McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); Two Guys from Harrison-Allentown v. McGinley, 366 U.S. 582, 81 S. Ct. 1135, 6 L. Ed. 2d 551 (1961). In McGowan the Court said:
366 U.S. at 425-426, 81 S. Ct. at 1105.
The Court held that the Legislature "could reasonably find" a rational basis for each of the exemptions, whether in fact, local tradition or custom. Id. at 426-428, 81 S. Ct. 1101.
In his classic concurring opinion in the McGowan case, Justice Frankfurter said:
Courts have a paramount obligation not to invalidate legislation merely because they disapprove its public policy.
To yield to the impulse to do so is to subvert the sensitive interrelationship between the three branches of government which is at the heart of our form of democracy. In this regard, one cannot overemphasize the admonition of the Chief Justice in Two Guys, when he said:
It is worth repeating that the Judiciary is not concerned with the good sense of a statute. Policy matters are the exclusive responsibility of the legislative branch of government. A judge, as a private citizen, may express his opinion at the polls, as every member of this court had the opportunity to do when chapter 119 was on the ballot. But the issue now before us is wholly one of the power of the Legislature to act, and upon that inquiry a judge would usurp authority if his personal view of policy intruded upon his deliberations.
So much established introductorily, we turn to the matter of the rationality of the classification of the Sunday Closing Law. The first relevant inquiry is as to the object or objects of the law. As noted above, Two Guys declared the pertinent object to be that of reducing or eliminating interference with Sunday as a common day of rest and relaxation. The trial court considered the constitutional issue as merely whether unrestricted Sunday shopping by those who wish to do so "will * * * appreciably impinge upon the opportunity of others to spend their Sunday in such other [than shopping] leisure-time pursuits as they may prefer" (emphasis added). 148 N.J. Super. at 352. In view of this unduly narrow perspective it will be well to review the full spectrum of what Sunday means to the generality of the populace, as conceived in Two Guys to have been properly within the legislative contemplation in proscribing Sunday activity.
Thus the public health and welfare are implicated when the hustle and bustle mount and intrude unreasonably upon opportunities for rest, leisure and diversion. The inroad may be in terms of direct interference as, for example, when commercial activities add to highway traffic to the discomfort of the Sunday driver or otherwise impinge upon a scene conducive to rest, diversion and recreation. The inroad may be indirect but equally real as when those who want to be free on Sunday find the economic aims of their employer compel them to work to hold their jobs, or when the economic impact upon employers requires them and their staffs to remain at the grindstone. 32 N.J. at 215-216.
Thus, applying the teaching of the equal protection cases cited above, if there is any reasonably conceivable basis upon which the Legislature could have deemed the Sunday sale of the five categories of articles to have interfered to some degree with the public enjoyment of Sunday in one or more of the aspects of rest and relaxation described in the foregoing excerpt from Two Guys, the Court must sustain the law. It is the legislative function, not that of the court, to weigh the anticipated benefits to the public against the detriments to would-be Sunday shoppers and merchants. Only if the anticipated benefits could be affirmatively established to be so illusory as to stamp the legislative classification as arbitrary or capricious would a court be justified in striking it as lacking in equal protection or as denying due process.
Before subjecting the invalidating rationale of the trial court to analysis, certain facts which are obvious in relation to possible legislative motivations and implicit justificatory considerations for the classification of economic activities proscribed on Sunday by the current statute should be noted. Practically all manufacturing, processing and wholesaling activity, as well as the bulk of the service industries, ceases on Sunday. While this may have originated in religious belief,
in modern times it has become largely a custom rooted in social and economic considerations.*fn2 Such closure extends to small as well as large businesses. There was therefore no pressing need to include in the Sunday Closing Law when enacted in 1959 prohibitions extending to such activities. As of 1959 and since, as we may assume the Legislature was aware, there was also large-scale voluntary closure of retail sales activity on Sunday. Notable exceptions thereto are some food establishments, restaurants, gasoline stations and drug stores. A rational basis for exempting these from Sunday closure on grounds of necessity or relationship to Sunday as a day of relaxation is obvious. Considerations of relevance to convenience for Sunday recreation seekers would also rationally justify excluding from the ban the wide variety of goods and articles sold for use in recreational activities. See McGowan v. Maryland, supra, 366 U.S. at 427-428, 81 S. Ct. 1101.
As to the limitation in the 1959 statute of furniture, furnishings, building materials, clothing and appliances as the only types of items forbidden to be sold on Sunday, we note that Two Guys recognized that there was a major eruption of retail activity on the highways during the 1950's, 32 N.J. at 209, see also McGowan v. Maryland, supra, 366 U.S. at 541, 81 S. Ct. 1101 (concurring opinion of Frankfurter, J.) as to similar phenomena in Pennsylvania, and it is clear to us that the Legislature could reasonably have felt that the kinds of merchandise mentioned were typically those whose Sunday sale was beginning to constitute a substantial threat to the Sunday rest and relaxation of the population at large. The Legislature was, of course, constitutionally free to address and deal with this particular impediment to Sunday rest and relaxation without extending a prohibition
to every other area of possible need. Two Guys, 32 N.J. at 218-219.
The trial court in the instant case did not undertake to establish that the classification in the Sunday Closing Law, in the sense of contrast between articles permitted and articles forbidden to be sold, was devoid of any rational relationship to its validated purposes on any conceivable basis the Legislature might have entertained therefor. It did not even address that proposition. Rather, the court proceeded on the bald assumption that if there were any such rational basis for the classification the court could invalidate the law if its purported salutary effect was outweighed by the resulting inconvenience to Sunday shoppers. Thus the court said:
[P]laintiff must show either that the classification is not at all related to the aim of affording the general public with relief from the stress of everyday pursuits or, if it bears some relation to that aim, its impact is not sufficiently significant in that regard to outweigh the public's inconvenience necessarily resultant from the ban imposed by the challenged legislation.
148 N.J. Super. at 351.*fn3
The foregoing statement was erroneous as a matter of law. If the classification bore "some relation" to the legislative objective of relief from interference with Sunday rest and relaxation, it was immune from invalidation through judicial admeasurement of a supposed preponderant inconvenience to would-be Sunday shoppers. As indicated hereinabove, the weighing of relative benefits and detriments in
police power regulation is for the Legislature exclusively. In its ratio decidendi, however, the court appears to have partly rested on the factual conclusion that the proof adduced by plaintiffs' expert witnesses sufficed to demonstrate that the law failed in fact to serve the legislative object and purpose at all ("the classification scheme * * * has been demonstrated to have failed to legitimately advance the ...