Amodio v. Bd. Of Com'rs Of Town Of West N.Y.

• Decision Date: 14 September 1945
• Docket Number: No. 229.,229.
• Citation: 133 N.J.L. 220,43 A.2d 889
• Parties: AMODIO v. BOARD OF COM'RS OF TOWN OF WEST NEW YORK et al.
• Court: New Jersey Supreme Court

133 N.J.L. 220

43 A.2d 889

AMODIO

v.BOARD OF COM'RS OF TOWN OF WEST NEW YORK et al.

No. 229.

Supreme Court of New Jersey.

Sept. 14, 1945.

COPYRIGHT MATERIAL OMITTED.

Raffaele Amodio was convicted in the court of Louis L. Flaum, Recorder of the Town of West New York, for keeping a barbershop open after the closing time fixed by an ordinance enacted by the Board of Commissioners of such town, and he brings certiorari.

Judgment of conviction affirmed.

May term, 1945, before DONGES, HEHER, and COLIE, JJ.

George Rothstein, of Union City, for prosecutor.

Samuel L. Hirschberg, of West New York, for defendants.

Anthony J. Armore, of West New York, joined in defendants' brief as amicus curiae.

HEHER, Justice.

This certiorari brings up for review an ordinance of the defendant municipality adopted on April 5, 1944, as amended on January 3, 1945, entitled ‘An ordinance regulating the opening and closing hours of barber shops.’

The ordinance was enacted in the exercise of the authority conferred by R.S. 40:52-1, subd. k, N.J.S.A., empowering the governing body of every municipality to ‘license and regulate’ the ‘opening and closing of barber shops on Sundays and legal holidays, and the hours of opening and closing on weekdays, and to impose a penalty for the violation of any such ordinance, * * *.’ It is therein ordained that barbershops ‘shall remain open’ on all days of the week except Sunday, Wednesday and Saturday ‘from 8:00 A.M. to 7:30 P.M.’; on Wednesday ‘from 8:00 A.M. to 1:00 P.M., excepting the Wednesday of any week during which there is a legal holiday, when it shall remain open from 8:00 A.M. to 7:30 P.M.’; on Saturday ‘from 8:00 A.M. to 9:00 P.M.;’ and ‘shall be closed on all legal holidays including Sundays, excepting Lincoln's Birthday, Armistice Day and Columbus Day’; and ‘on the eves of legal holidays,’ except as therein set forth, ‘shall be open from 8:00 A.M. to 9:00 P.M.’ It is also therein directed that ‘No patrons shall be permitted to enter any such shop after the P.M. hours above mentioned’; that ‘Such patrons as shall have entered such shops before the P.M. hours hereinabove mentioned may be serviced’; that such opening and closing hours shall be prominently posted in the shop; and that a violation of any of the provisions of the ordinance shall be punishable by a fine not exceeding $25 or imprisonment for a term not exceeding 10 days. The ordinance contains a recital that the governing body found the regulation ‘necessary in order to protect the general welfare and health of persons working in barber shops.’

Prosecutor was convicted and fined in the local recorder's court upon a complaint charging that he kept his shop open for business on Wednesday, January 17, 1945, after 1:00 P.M., in violation of the ordinance.

It is urged at the outset that, apart from the specific provision for the closing of such shops on legal holidays, the regulation merely fixes the hours when they ‘shall remain open,’ and that this does not constitute a direction against an open shop at other times. Prosecutor invokes the principle that a penal ordinance is to be strictly construed. Board of Health v. Werner, 67 N.J.L. 103, 50 A. 585; Perrine Terrace Land Co. v. Brennan, 101 N.J.L. 487, 128 A. 786. We conceive this to be a misinterpretation.

The ordinance is not perhaps a model of artistic excellence, but inartificial expression is not uncommon in municipal legislation. We think it clearly expresses an intent to prohibit open shops of this class at times other than those prescribed. The outstanding purpose was to establish the hours when such shops shall be closed to business, not to make open shops mandatory during the hours fixed for business. Defendants so read the regulation. It specifically directs that such shops shall be closed ‘on all legal holidays including Sundays,’ with three exceptions, and that no patrons shall be admitted thereto ‘after the P.M. hours' specified, and only those who have entered before the closing time shall be serviced. And the title so indicates. It declares the design of the ordinance to be the regulation of the ‘opening and closing hours' of barber shops. As in the case of statutes, the title of an ordinance may be considered in resolving doubts and ambiguities in the enacting clause. The title here suggests a purpose to close barber shops except during the hours when their operation is permissible under the enacting clause. And the declaration in the regulation itself that it was deemed necessary for the protection of the ‘general welfare and health’ of the workers is also significant of this purpose. As with statutes, a local regulation is to be given a reasonable construction, such as is not repugnant to common sense. The rule enjoining strict construction of penal ordinances does not command such adherence to the letter of the enactment as would defeat the obvious legislative intent and purpose. The local legislative policy must be given reasonable scope in consonance with the fair import of the terms used. A strict interpretation that would disserve the apparent policy and object of the enactment is not countenanced by the law. That which is fairly implied is as much a part of the ordinance as that which is explicit.

There is no challenge directed to the constitutional sufficiency of sec. 40:52-1, subd k, supra. And it is conceded that the mandatory closing hours of 7:30 P.M. on all work days except Wednesday and Saturday, and 9:00 P.M. on Saturday, represent a reasonable exercise of the statutory power. The point made is that the compulsory Wednesday afternoon and holiday closings constitute a deprivation of prosecutor's property in contravention of the due process clauses of the Fourteenth Amendment of the Federal Constitution and Art. I, par. 1, of the State Constitution, N.J.S.A. in that ‘the common right to engage in a lawful private business is curtailed.’ It is said that under R.S. 36:1-1, as amended by ch. 123 of the Laws of 1942 (Pamph. L. p. 406), N.J.S.A. 36:1-1, every Saturday from June 15th to September 15th is a public holiday, and every Saturday afternoon from September 15th to June 15th is a half holiday, and that under the ordinance closings would be obligatory at all such times as well as on all other holidays; and it is argued that this would in nowise serve the common interest and is therefore not comprehended in the police power. But this is a misconception of the last-cited statute and the ordinance.

Sec. 36:1-1, as amended, decrees that certain days and half days shall be holidays or half holidays for specified banking transactions; and it contains a rule of construction providing that every Saturday, unless a whole holiday, shall, until twelve o'clock noon, be deemed a secular or business day, except as therein provided in regard to bills of exchange, bank checks and promissory notes, ‘and the days and half days' therein enumerated, ‘except bank holdays and Saturdays from the fifteenth day of June to the fifteenth day of September, both inclusive, shall be considered as the first day of the week, commonly called Sunday, and public holidays or half holidays, for all purposes whatsoever as regards the transaction of business in the...