Auto-Rite Supply Co. v. Mayor and Township Committeemen of Woodbridge Tp.

• Decision Date: 21 October 1957
• Docket Number: No. A--7,AUTO-RITE,A--7
• Citation: 135 A.2d 515,25 N.J. 188
• Parties: SUPPLY CO., a corporation of the State of New Jersey, et al., Plaintiffs-Appellees, v. MAYOR AND TOWNSHIP COMMITTEEMEN MAYOR AND TOWNSHIP COMMITTEEMEN and the Township of Woodbridge, In the County of Middlesex, a municipal corporation of the State of New Jersey, Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 188

25 N.J. 188

135 A.2d 515

AUTO-RITE SUPPLY CO., a corporation of the State of New Jersey, et al., Plaintiffs-Appellees, v. MAYOR AND TOWNSHIP COMMITTEEMEN MAYOR AND TOWNSHIP COMMITTEEMEN and the Township of Woodbridge, In the County of Middlesex, a municipal corporation of the State of New Jersey, Defendants-Appellants.

No. A--7.

Supreme Court of New Jersey.

Argued Sept. 9, 1957.

Decided Oct. 21, 1957.

Robert N. Wilentz, Perth Amboy, argued the cause for defendants-appellants (Nathan Duff, Perth Amboy, attorney; Elias A. Kanter, Newark, of counsel).

John Toolan, Perth Amboy, argued the cause for plaintiffs-appellees (Jacobson & Winter, Perth Amboy, attorneys; Toolan, Haney & Romond, Perth Amboy, of counsel; Sam Weiss, Newark, on the brief).

The opinion of the court was delivered by

BURLING, J.

The Township of Woodbridge enacted an ordinance 'to encourage the observance of Sundays to preserve the public peace and order and to promote the public health by repose and quiet on the day assigned for rest,' but only the sale of the following items has been prohibited under pain of fine or imprisonment:

general household electrical appliances

home furnishings and bedding

furniture

floor coverings

hardware

paint and wallpaper

men's and women's wear

shoes

automotive services and parts (except as sold by gasoline stations licensed by Woodbridge).

Plaintiffs own mercantile establishments in the township and deal in certain of the items prohibited from Sunday sale. Included in the questions involved and propounded by the appellants and argued in this case was:

'3. Was not Woodbridge's Sunday-closing ordinance one authorized by statute and constitutionally valid?'

The ordinance was brought under attack by a suit in lieu of prerogative writ in the Superior Court, Law Division. After Woodbridge filed its answer plaintiffs moved for summary judgment upon supporting affidavits. Woodbridge offered nothing in opposition thereto which would raise a factual issue, and the trial court quite properly viewed as true the statements of uncontradicted facts appearing in the plaintiffs' affidavits. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75, 110 A.2d 24 (1954).

The most significant recital in the moving papers is a recital of the business establishments which are engaging in Sunday trade. Among these are listed:

1 hardware and lumber supply

1 dry goods store

1 camera shop

1 lumber company

1 children's clothing store

1 garden supply store

1 bicycle shop

1 sporting goods store

1 store selling linens, blankets and drapes

1 gift shop

4 candy stores

3 general stores

The trial court concluded that the ordinance effected 'an unconstitutional invasion of personal and property rights of the plaintiffs' and deemed the true purpose of the enactment to be an attempt 'to subvert competition in favor of the members of the Perth Amboy Merchants Association' and 'not for the purpose set forth in the title of the ordinance.' 41 N.J.Super. 303, 313--314, 124 A.2d 612, 618 (Law Div.1956). Woodbridge pursued an appeal to the Superior Court, Appellate Division, and we certified the cause prior to a review below.

The determination of this case reduces itself to the principal and dispositive question: May a municipality exercise its delegated police powers to enact a Sunday closing ordinance which conflicts with a state statute?

The object of Sunday legislation is to insure a day of quiet, rest and relaxation in the community at large. At stated by Chief Justice Weintraub (then a Judge of the Superior Court) in Hertz Washmobile System v. Village of South Orange, 41 N.J.Super. 110, 114, 124 A.2d 68, 70 (Law Div.1956):

'The thesis usually advanced today is that the object is to protect all persons from the physical and moral debasement which comes from uninterrupted labor. * * * That this objective may be sought under the police power of the State is beyond question, and so also it may not be disputed that the State may choose the Christian Sabbath for the day of rest, as our Legislature has done.'

And see State v. Fair Lawn Service Center, 20 N.J. 468, at pages 482, 483, 120 A.2d 233, at pages 240, 241 (1956) (dissenting opinion).

The legislative policy of this State to set aside the first day of the week as one of rest and relaxation is a declaration of long standing. See State v. Maier, 13 N.J. 235, 261, 99 A.2d 21 (1953). Our legislative pronouncements have been in keeping with the object to be achieved by prohibiting all 'wordly employment or business' and are an extension upon the design of the English statute of 29 Car. II, c. 7 (1676), which merely prohibited one from engaging in the labor of his 'ordinary calling.' Reeves v. Butcher, 31 N.J.L. 224, 225 (Sup.Ct.1865). The legislative purpose today is comparable to that of 146 years ago when Justice Pennington commented: It is to prevent the public exposure of goods, merchandise, etc., for sale on Sunday, and selling them in consequence thereof,' Crocket v. Vanderveer, 3 N.J.L. 856, 857 (Reprint 422, 424) (Sup.Ct.1811), and thereby provide an escape from the market place for merchant and customer alike. Sunday is to be a day of rest, and this has been 'the general and immemorial policy of the state.' Sherman v. City of Paterson, 82 N.J.L. 345, 346, 82 A. 889 (Sup.Ct.1912).

Prior to the revision of Title 2 of the Revised Statutes in 1951 the Sunday statute was equipped with a penalty of one dollar for any violation thereof, R.S. 2:207--1. It may have been a compromise between Sunday law advocates and antagonists. When Title 2A was enacted the penalty did not accompany the Sunday law, now appearing as N.J.S. 2A:171--1 et seq., N.J.S.A. State v. Fair Lawn Service Center, supra. Judge Clapp, speaking as chairman of the Advisory Committee on the Revision of Statutes, noted (in the foreword to Title 2A) that the object in revising the Sunday law was to eliminate obsolete provisions rather than effect substantive changes. Further

'It was intended to leave municipalities with the power they theretofore had, to control and regulate Sunday activity.'

N.J.S. 2A:171--1, N.J.S.A., is not the source of the power. This is to be found in the omnibus provision of the Home Rule Act, R.S. 40:48--2, N.J.S.A., enabling municipalities to enact ordinances for the preservation of the public health, safety and welfare of its citizens. The Sunday law, however, does cast the die into which local control and regulation must necessarily take shape if the essential purpose of the enactment is to be achieved.

N.J.S. 2A:171--1, N.J.S.A., provides in terms that are unmistakably clear:

'No worldly employment or business, except works of necessity and charity, shall be performed or practiced by any person within this state * * *.'

N.J.S. 2A:171--2, N.J.S.A., expands the list of exceptions from the general prohibition:

'Nothing contained in this chapter shall be construed to prohibit the preparation and sale of drugs, meals, prepared food and non-alcoholic beverages on Sunday, nor to apply to sales of alcoholic beverages which are otherwise subject to regulation under Title 33 of the Revised Statutes.'

By petition and referendum the legal voters of a municipality may adopt N.J.S. 2A:171--6, N.J.S.A., which would permit any person, on Sunday, to '(a) print, publish and sell newspapers, (b) sell and deliver milk, (c) walk, ride or drive for recreation, (d) hire conveyances for riding and driving, or (e) engage or take part in any form of recreation, sport or amusement that is not unlawful on other days of the week, if in so doing such person does not disturb others in their observance of Sunday.'

The statute stands as a declaration of state policy. Gundaker Central Motors v. Gassert, 23 N.J. 71, 83, 127 A.2d 566 (1956). Within this framework municipalities may control and regulate Sunday activity. There is nothing in the state act which indicates that a prohibition against the sale of electrical appliances and furniture is essential to achieve a day of rest and relaxation while a prohibition against the sale of children's clothing or the sale of lumber is of no consequence in attaining the objective. The pattern is wholly to the contrary. Prior to the revision of Title 2 a local enactment in conflict with the state mandate was Ultra vires. Singer v. First Criminal Court of City of Newark, 79 N.J.L. 386, 75 A. 433 (Sup.Ct.1910); Geisler v. Davis, 9 N.J.Misc. 185, 153 A. 252 (Sup.Ct.1931); cf. Fennan v. Atlantic City, 88 N.J.L. 435, 97 A. 150 (Sup.Ct.1916), affirmed 90 N.J.L. 675, 101 A. 1054 (E. & A.1917). The Revision did not alter the situation. The local power was not enhanced to enable piecemeal prohibition and consequent subversion of basic purpose. Hence, although the local power is competent to deal with the measure of penalty, as well as defining works of 'necessity and charity' within the statutory contemplation, it is inconsistent with the statutory policy ('no worldly employment or business') to single out particular business enterprises for sanction. The state legislative power has declared the incidence of the prohibition and the local power may not transgress, but most conform to the superior authority. Borough of Jamesburg v. Hubbs, 6 N.J. 578, 584, 80 A.2d 100 (1951); Hasbrouck Heights Hosp. Ass'n, v. Borough of Hasbrouck Heights, 15 N.J. 447, 455, 105 A.2d 521 (1954). And Art. IV, Sec. VII, par. 11 of the 1947 Constitution enjoining a liberal construction of municipal power has no relevancy here. The mandate did not operate to vest municipalities with a source of power not delegated by statute, Fred v. Mayor and Council, Old Tappan Borough, 10 N.J. 515, 518, 92 A.2d 473 (1952), and 'unless constitutionally secured, the municipality has no inherent right of self-government beyond the control of the state.' Jersey City v. Martin, 126 N.J.L. 353, 361, 19 A.2d 40, 45 (E. & A.1941). A municipal corporation is a government of enumerated powers; it has no inherent...