Guill v. Mayor and Council of City of Hoboken

• Decision Date: 28 May 1956
• Docket Number: No. A--138,A--138
• Parties: Marie GUILL, Josephine Versacio, Claire Jacob, Gloria Mullica, Ruth McGuire, Rita Vincente, Ina Edwards, R. J. Fuchs, Neilie Alleman, Heien Maresca, Eileen Leary, Josephine Vossos, J. L. Gerrard, Mary Lehman, Louise Pear, Margaret Blanchard, Doris Smolski, Helen Kosslak and Peggy Keenan, Plaintiffs-Appellants. v. The MAYOR AND COUNCIL OF the CITY OF HOBOKEN, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 574

21 N.J. 574

122 A.2d 881

Marie GUILL, Josephine Versacio, Claire Jacob, Gloria Mullica, Ruth McGuire, Rita Vincente, Ina Edwards, R. J Fuchs, Neilie Alleman, Heien Maresca, Eileen Leary Josephine Vossos, J. L. Gerrard, Mary Lehman, Louise Pear Margaret Blanchard, Doris Smolski, Helen Kosslak and Peggy Keenan, Plaintiffs-Appellants. v. The MAYOR AND COUNCIL OF the CITY OF HOBOKEN, Defendants-Respondents.

No. A--138.

Supreme Court of New Jersey.

Argued April 23, 1956.

Decided May 28, 1956.

Felice Castelli, Jersey City, for appellants.

E. Norman Wilson, Hoboken, for respondents (Joseph B. McFeely, Hoboken, attorney).

The opinion of the court was delivered by

HEHER, J.

At issue here is the legal sufficiency of certain provisions of an ordinance regulative of the sale and distribution of alcoholic beverages adopted December 7, 1955 by the Mayor and Council of the City of Hoboken ordaining, Article VIII, Section 1, that no 'licensee, agent or other employee connected with or employed by or to be connected with or employed by the licensee shall * * * (g) Employ or permit the employment of any female to tend bar on the licensed premises,' but that the regulation 'shall not prohibit a female licensee from tending bar in her premises,' nor 'prohibit the wife, mother, daughter or sister of a licensee from tending bar in his licensed premises,' nor prohibit a 'female holding 50 or more percentum of the capital stock of a corporate licensee' or 'the wife, mother, daughter or sister of a person holding' 50% Or more of the capital stock of such corporate licensee from 'tending bar' in the 'corporation's licensed premises,' and 'shall not apply so as to prohibit the employment of females in alcoholic beverage licensed restaurants and hotel dining rooms to act as waitresses to serve alcoholic beverages directly to persons while seated at tables.'

Another provision of the ordinance, Article VI, Section 1(a), obliges every 'Plenary Retail Consumption Licensee, agent or other employee connected with or employed by or to be connected with or employed by said licensee' to 'make full and complete answers in writing * * * to all questions * * * as to the identity, character, antecedents and general experience of any such licensee, agent or other employee.'

The plaintiff employees of establishments in Hoboken licensed for the sale, service and consumption of alcoholic beverages 'at counters, commonly known and designated as a 'bar' or 'bars" brought this action in lieu of Certiorari to have these provisions of the ordinance declared null and void in that they (a) constitute an 'unlawful exercise' of legislative power; (b) deprive 'plaintiffs and other citizens of the female sex of the protection and rights guaranteed to them' by the Fourteenth Amendment to the Constitution of the United States and Article I, paragraphs 1 and 20, of the Constitution of New Jersey; and (c) are 'arbitrary, capricious, unreasonable and discriminatory.' It was averred in the complaint that the plaintiffs are severally willing to answer questions designed to establish 'their identity, good character, antecedents and general experience,' but they 'are estopped from doing so because they do not fall or come within the class of females enumerated in Section 1(g) Article VIII' of the ordinance, and 'said estoppel' has 'aggrieved' them and 'other citizens of the famale sex and is illegal and erroneous,' for the reasons given.

The appeal is taken from an 'interlocutory determination or judgment' denying plaintiffs' motion 'for an order restraining the defendants from enforcing or attempting to enforce until the final determination of the cause' the particular provisions of the ordinance. The order or judgment in question denied plaintiffs' motion for judgment declaring both regulations to be 'invalid and unconstitutional' and enjoining their enforcement, but continued a temporary restraint to permit of an appeal and an application to the Appellate Division for a stay pending the appeal. The Appellate Division continued the restraint until the determination of the appeal. The order was entered by consent; and it was there stipulated that the 'interlocutory judgment of the trial court * * * should be considered as a final judgment by the trial court,' and the 'appeal * * * should be considered and treated as an appeal from a final judgment of the trial court and judgment rendered thereon' by the appellate court 'on the record.'

The case is here by our own certification of the appeal thus pending in the Appellate Division.

It is contended that section 1(g) of Article VII is 'unreasonable; arbitrary; capricious; an unlawful exercise of the power of legislation and therefore unconstitutional,' in that the employment of females to 'tend bar' in licensed premises is (a) 'prohibited, but there is no prohibition against females going behind the bar and mixing drinks and serving them to patrons who might be seated at tables'; (b) the 'wife, mother, daughter or sister' of a 'male' licensee is permitted to 'tend bar' in his licensed premises, but the 'mother, daughter or sister' of a 'female' licensee is prohibited from 'tending bar'; (c) a 'female holding 50% Or more of the capital stock of a corporate licensee' is permitted to 'tend bar' on the corporation's licensed premises; and (d) the 'wife, mother, daughter or sister' of a 'person holding 50% Or more of the capital stock of the corporate licensee' is also permitted to 'tend bar.'

The argument is that the 'classes of females or female relatives of license holders who may tend bar' under the ordinance 'is purely discriminatory because the right or opportunity to earn a living at tending bar is extended to females of practically every class except those who are engaging in that enterprise purely and solely as a means of earning a livelihood'; and that 'tending bar in licensed premises' is a 'lawful occupation which cannot be denied to citizens by reason of diversity of sex,' and thus section 1(g) of Article VIII of the ordinance represents an 'unconstitutional exercise of legislative power, unjustified even when done under the pretext of protecting public health, safety and morals.' It is said that in the exercise of the police power in this area, 'or in the reasonable furtherance of the regulation of the liquor business,' regard must be had for 'changing conditions' and the basic principle that the municipality cannot 'favor one class of citizens as against another class nor one group of a class of citizens as against another group in the same class nor can it unreasonably limit to a class or part of a class the opportunity of engaging in a lawful endeavor, upon the pretext that the municipality is acting to protect public health, morals or safety.'

A municipal ordinance must be constitutionally sufficient, and reasonable as well where it invokes general power, either under its charter or by legislative grant; and where the ordinance purports to be an exercise of authority within the local domain, not on its face a transgression of constitutional limitations or the bounds of reason, it is presumed to be until the contrary is shown a valid legislative act. Haynes v. Cape May, 50 N.J.L. 55, 13 A. 231 (Sup.Ct.1887); Trenton Horse R. Co. v. Inhabitants of City of Trenton, 53 N.J.L. 132, 20 A. 1076, 11 L.R.A. 410 (Sup.Ct.1890); Consolidated Traction Co. v. City of Elizabeth, 58 N.J.L. 619, 34 A. 146, 32 A.L.R. 170 (Sup.Ct.1896); Passaic v. Paterson Bill Posting, etc., Co., 72 N.J.L. 285, 62 A. 267 (E. & A.1905); Oliva v. City of Garfield, 1 N.J. 184, 62 A.2d 673 (1948). An ordinance has the requisite quality of reasonableness if it be fair and impartial in its operation, and not unduly oppressive or the means of an arbitrary denial of individual right. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Factual support for the local legislative judgment is to be presumed. Barring a showing Contra, the assumption is that the measure has a rational basis within the knowledge and experience of the municipal lawmakers. Compare Reingold v. Harper, 6 N.J. 182, 186, 78 A.2d 54 (1951). The exercise of the police power, particularly in the regulation of the sale and consumption of alcoholic beverages, invokes a broad legislative discretion to serve the general good and welfare; and there is occasion for judicial interposition only where the action taken is clearly unreasonable and oppressive, so much so as to constitute an arbitrary use of this local legislative function. Every intendment is made in favor of the reasonableness of the regulation. McGonnell v. Board of Commissioners of City of Orange, 98 N.J.L. 642, 121 A. 135 (Sup.Ct.1923).

There is of necessity an expansive discretionary power of classification in the service of the legislative policy within the area of police action. This, too, is essentially a legislative province controlled by the constitutional principle forbidding invidious distinctions and discriminations. But where the propriety of the division into classes or groups is fairly debatable, the local legislative judgment controls. The State and its municipalities holding properly delegated powers may legislate according to 'reasonable classification of the objects of the legislation or of the persons whom it affects.' New York rapid Transit U.S. 573, 58 S.Ct. 721, 82 L.Ed. 1024 U.S. 573, 58 S.Ct. 721, 82 L.Ed. 1024 (1938).

The classification satisfies the constitutional test of equality and reasonableness if it rests upon some ground of difference having a real and substantial relation to the basic object of the legislation or some relevant consideration of public policy. Even though the distinction be narrow, it suffices if it is reasonably concerned with the end legitimately in view. Ring v. Mayor and Council of Borough of North Arlington, 136 N.J.L. 494, 56 A.2d 744 (Sup.Ct.1948), affirmed 1 N.J. 24, 61 A.2d 508 (1948). If the local legislative action be...