On certification to the Superior Court, Appellate Division, whose opinion is reported at 201 N.J. Super. 508 (1985).
For reversal -- Chief Justice Wilentz, and Justices Clifford, Handler and Pollack. For affirmance -- Justices O'Hern and Garibaldi. O'Hern, J., dissenting. Justice Garibaldi joins in this opinion.
[103 NJ Page 565] This appeal poses once again an issue involving the validity of regulations governing permissible activities on Sunday. This form of government regulation, commonly referred to as Sunday
closing or Sunday blue laws, has been the subject of recurrent legislative and judicial treatment. The question in this case is whether and to what extent municipalities can enact local Sunday blue law ordinances that prohibit particular activities on Sunday in a manner different from that expressed by the State's statutory Sunday blue law.
Legal challenges were brought to contest the validity of the Sunday blue law ordinances in two municipalities, Paramus and Midland Park. Unlike earlier cases, such as Two Guys From Harrison, Inc. v. Furman, 32 N.J. 199 (1960), Masters-Jersey, Inc. v. Paramus, 32 N.J. 296 (1960), and Vornado, Inc. v. Hyland, 77 N.J. 347 (1978), the present legal attacks are not based on equal protection or other constitutional grounds. The actions here focus solely on whether the State has foreclosed through statutory preemption any power on the part of municipalities to enact local Sunday blue law regulations. The basis for the current challenge is the incorporation of the State's Sunday blue law, L. 1959, c. 119; N.J.S.A. 2A:171-5.8 to -5.18 (Chapter 119), as part of the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to :98-4, which also included a general provision for the preemption of any local criminal ordinances that conflict with any of the provisions or policies of the Code. N.J.S.A. 2C:1-5(d).
The State's statutory Sunday blue law, as incorporated in the Code, restricts the sale on Sunday of only five categories of goods. N.J.S.A. 2A:171-5.18.*fn1 The provisions of the State law are not operative unless the voters of a county adopt the State
law by referendum, upon which the statutory prohibition will be applicable on a county-wide basis. N.J.S.A. 2A:171-5.12. The voters in Bergen County, in which Midland Park and Paramus are located, have adopted the State Sunday blue law. However, each of these municipalities has enacted a more stringent ordinance, prohibiting virtually all business activities on Sunday, with limited exceptions.*fn2 The asserted differences between these broad local regulations and the State's narrow Sunday blue law have prompted the current litigation.
In the Paramus appeal, several plaintiffs filed an action in lieu of prerogative writ to invalidate the municipality's Sunday closing ordinance. The trial court, applying the preemption provision of the Code, concluded that the intent of the Legislature in passing the Code was to criminalize uniformly minor criminal offenses, such as the sale of prohibited foods on Sundays, and to prevent municipalities from adopting patchwork criminal laws.
The validity of the Midland Park Sunday Blue Law ordinance was challenged initially in municipal court by Excelsior Panbro Companies, t/a Midland Park Foodtown, and The Great Atlantic and Pacific Tea Co., t/a A & P Food Stores, who, as defendants, contended that the selling of food did not fall within the five categories of specifically prohibited activities pursuant to the state statutory blue law provision and therefore was permissible. The municipal court found defendants guilty of violating
the ordinance, which it upheld. On appeal to the Law Division, the trial court reversed the defendants' convictions, ruling that Midland Park's ordinance was not enforceable because the Code had preempted the field of Sunday blue laws. Nevertheless, the judge directed that the defendants file an action in lieu of prerogative writ to have the validity of the ordinance declared invalid.
Appeals were taken from both the Paramus and Midland Park judgments to the Appellate Division, where they were consolidated. The Appellate Division ruled that the Code preempted municipal regulation in the field of Sunday blue laws, concluding that Paramus and Midland Park had no authority to enact Sunday closing ordinances. 201 N.J. Super. 508, 513 (1985). We granted defendant's petition for certification. 102 N.J. 325 (1985).
The issue presented in this appeal cannot be fully understood and resolved without an appreciation of the history and evolution of the current Sunday closing law. It has generally been acknowledged that the purpose of such enactments was to "insure a day of quiet, rest and relaxation in the community at large." Auto-Rite Supply Co. v. Township of Woodbridge, 25 N.J. 188, 192 (1952). Sunday closing laws initially prohibited "any kind of servile work, unlawful recreations or unnecessary travels" on the "Lord's Day," excepting only works of mercy or necessity. Allinson, Acts of the General Assembly of the Province of New Jersey (1776) pp. 3-4. These total prohibitions continued until the turn of the last century. In 1893, the Legislature first recognized exceptions for certain activities. L. 1893, c. 24. It then became legal "for any person or corporation, on the Christian Sabbath, or first day of the week, commonly called Sunday, to print, publish and sell newspapers, to sell and deliver milk, or to walk, ride or drive for recreation,
and to hire horses and carriages or other conveyances for riding or driving." L. 1893, c. 24.
The 1893 act also established municipal options for exercising control over Sunday activities. Local governing bodies were empowered to adopt ordinances or rules deemed necessary and proper to regulate or prohibit the acts made lawful by the act. Ibid. These exceptions were continued in somewhat different form in 1933. L. 1933, c. 115.
The modern version of the Sunday blue law stems from its revision in 1951, which provided that "[n]o worldly employment or business, except works of necessity and charity, shall be performed or practiced by any person within this state on the Christian Sabbath, or first day of the week, commonly called * * * Sunday." L. 1951, c. 344; N.J.S.A. 2A:171-1 et seq. (since repealed). Limited exceptions to the general prohibition of business activities on Sundays permitted the preparation and sale of drugs, meals, prepared food, perishable agricultural and horticultural products, and non-alcoholic beverages. N.J.S.A. 2A:171-2. While the 1951 revision provided broad prohibitions against most normal activities on Sunday, it permitted additional activities on Sundays, such as walking, riding or driving for recreation, other recreation, sport or amusement, and such routine matters as the publication and sale of newspapers and the sale and delivery of milk, provided they could be undertaken without causing a disturbance and were authorized in a municipality by a majority vote. N.J.S.A. 2A:171-6.
The Legislature, in 1958, amended the Sunday blue laws. L. 1958, c. 138; N.J.S.A. 2A:171-5.1 to -5.7. This amendment, instead of prohibiting comprehensively the sale of "all worldly goods," prohibited the sale only of certain categories of commodities. N.J.S.A. 2A:171-5.1. Also, as a concession to the resort areas, where there was a strong popular demand for no Sunday closing regulation, the new law was "inapplicable to counties bordering on the Atlantic ocean having a population of
less than 225,000," N.J.S.A. 2A:171-5.5, thereby excluding Atlantic, Ocean, and Cape May counties.
In a legal challenge to the 1958 act, the exclusion of these counties was determined to be arbitrary and unconstitutional. Sarner v. Township of Union, 55 N.J. Super. 523, 540 (Law Div.1959). In response to this decision, the Legislature, in 1959, enacted Chapter 119, N.J.S.A. 2A:171-5.8 to -5.18, the current Sunday closing law. This statute eliminated the exclusion of the seashore counties, instead providing that Sunday closings would "not become operative in any county unless and until the voters of the county shall determine by referendum held pursuant to this act that the same shall apply therein." N.J.S.A. 2A:171-5.12.
There was a judicial challenge to this revision on constitutional grounds. Two Guys from Harrison, Inc. v. Furman, 32 N.J. 199 (1960). It was contended that the statute was beyond the police power of the State; that it contravened the ban against the union of church and state in the Federal Constitution (First and Fourteenth Amendments) and in the State Constitution (Art. I, para. 4); and that the classification of what goods may and may not be sold was violative of the equal protection guarantees of the Fourteenth Amendment and the State Constitution. The Court, in upholding the validity of Chapter 119, observed that because it prohibited the sale of only five categories of goods rather than mandating general inactivity, Chapter 119 "embrace[d] a radically different policy." It held that Chapter 119 repealed by implication the inconsistent regulatory scheme reflected in the 1951 law. Id. 32 N.J. at 225.
The Court in Two Guys also considered the validity of municipal authority in the field of Sunday closings. Significantly, as related to the narrow issue in this appeal, the Court recognized that Chapter 119, in addition to eliminating any penalties for violations, was intended to leave municipalities with the power, they theretofore had, to control and regulate Sunday activity,
and held that municipalities may be empowered to deal directly with issues, such as Sunday closings. 32 N.J. at 231.
The validity of municipal Sunday closing regulations was specifically challenged in the companion case to Two Guys, namely, Masters-Jersey, Inc. v. Borough of Paramus, 32 N.J. 296 (1960). There the validity of Paramus Ordinance 403 (the source ordinance for Paramus Article 10, the subject of this appeal) was challenged on equal protection grounds because it involved an inconsistent application of the blue laws from municipality to municipality. The ordinance had incorporated the provisions of the earlier 1951 law, prohibiting all worldly employment or business on Sundays with limited exceptions. Although, as noted, Chapter 119 impliedly repealed the regulatory scheme of the 1951 revision, the Court ruled it did not necessarily vitiate Paramus' ordinance even though the ordinance was modeled after the superseded statute. Masters-Jersey, Inc. v. Borough of Paramus, supra, 32 N.J. at 302. The Court observed that the source of municipal authority to regulate Sunday activity is the police-power provision of the Home Rule Act, N.J.S.A. 40:48-2, which empowers municipalities to enact ordinances for the preservation of the public health, safety, and welfare of its citizens. Ibid. The Court held Paramus was entitled to exercise its police power to regulate Sunday activities as long as its ordinance did not conflict with the State policy as reflected in Chapter 119.
Chapter 119 does not affirmatively authorize the continuance of activities beyond its scope. Although, as we pointed out in Two Guys From Harrison, Inc., the Legislature in adopting that statute contemplated that citizen activities beyond the statute's interdiction will continue unscathed insofar as state legislation is concerned, yet there is no evidence of a purpose to bar local government from dealing with an evil it may reasonably find to warrant local attention. A municipality may not authorize what the state statute prohibits in any county in which the statute operates, but Chapter 119 does not prevent the municipality from proscribing other activities if there is an evil justifying the exercise of its delegated police power.[Ibid.]
In Vornado, Inc. v. Hyland, 77 N.J. 347 (1978), the issue of inconsistent application under the county-option provision of Chapter 119 was raised on equal protection constitutional
grounds. The classification of goods subject to Sunday closing was also constitutionally challenged on grounds of vagueness. The Court upheld the law against both constitutional challenges, id. at 354 finding that there was a reasonable relation between its regulatory provisions and the legislative objective of relief from interference with Sunday rest and relaxation.
In 1978, the Legislature modernized the criminal law of New Jersey by enacting the Criminal Code, L. 1978, c. 95. The Code specifically repealed various provisions of Title 2A, the former criminal law, and designated other portions of Title 2A that would remain in full force and effect. N.J.S.A. 2C:98-2 to -3. As first enacted, the existing Sunday closing law was not excluded from the Code's general repealer, N.J.S.A. 2C:98-2; hence, all of the Sunday blue law provisions in Title 2A, including Chapter 119, would seemingly have been repealed under the Code, contrary to the intent of the drafters of the Code who had recommended that no changes be made in the Sunday blue law provisions of Title 2A. Final Report of N.J. Law Revision Commission, Vol. I; Appendix A, p. 237. Consequently, prior to its effective date, the Code was amended by Legislature, saving from repeal Chapter 119 as well as N.J.S.A. 2A:171-1.1 and -1.2 governing the buying, selling, trading of motor vehicles on Sunday, and specifically provided that these statutory Sunday-closing provisions remain in full force and effect. L. 1979, c 178; N.J.S.A. 2C:98-3 (as amended). Chapter 119, having been specifically saved from repeal, thus constitutes the current operative State policy governing Sunday closing under the Criminal Code.
As reflected in the history of Sunday-closing legislation, differing local attitudes toward Sunday activities have been a continuous concern and have constituted a recurrent problem in terms of formulating and implementing a statewide regulatory scheme. Generally, the perceived need to accommodate local interests has been accommodated by the Legislature, and separate municipal regulations of Sunday activities have been a concomitant of the State Sunday blue laws, albeit within the die
cast by preeminent State policy. Auto Rite Supply Co. v. Woodbridge Township, supra, 25 N.J. at 193. It is against this background that the enforceability of the local ...