Sherman v. Mayor and Aldermen of City of Paterson

• Decision Date: 18 March 1912
• Citation: 82 A. 889,82 N.J.L. 345
• Parties: SHERMAN v. MAYOR AND ALDERMEN OF CITY OF PATERSON.
• Court: New Jersey Supreme Court

82 A. 889

82 N.J.L. 345

SHERMAN

v. MAYOR AND ALDERMEN OF CITY OF PATERSON.

Supreme Court of New Jersey.

March 18, 1912.

Certiorari prosecuted by Louis Sherman against the Mayor and Aldermen of the City of Paterson to remove an ordinance prohibiting the sale on Sunday in any store, shop, or other place within the city of any clothing, shoes leather and findings, hats or hardware, etc. Relief denied.

Argued November term, 1911, before MINTURN, TRENCHARD, and KALISCH, JJ.

Isadore V. Klenert, for prosecutor.

Edward F. Merrey, for defendant.

MINTURN, J. The writ of certiorari in this case is designed to review the legality of an ordinance passed by the board of aldermen of the city of Paterson, entitled "An ordinance preventing vice and immorality, to preserve the public peace and good order, and for other purposes." The ordinance is intended to prohibit the sale upon Sunday, in any store, shop, or other place within the city 'of any clothing, shoes leather and findings, hats or hardware, under penalties expressed therein. The charter of the city (P. L. 1871, p. 808) provides that the board of aldermen shall have power to make, continue, modify, and repeal ordinances, regulations, and restrictions to carry into effect any and all of the powers vested by law in the corporation, "and may enforce obedience to the same by fines not exceeding fifty dollars, or by Imprisonment, or both; and shall have power by ordinance, resolutions, rules, regulations and bylaws, to prevent vice and immorality, to preserve the public peace and good order," etc., in addition to "other powers elsewhere specially granted." "An act for suppressing vice and immorality" (4 Comp. St. 1910, p. 5712) prohibits the conducting of certain lines of work and labor on Sunday, but excepts specifically from its provisions certain other lines of business. The ordinance is attacked upon the general ground of illegality, in that it violates the constitutional and common-law rights of citizens, and is unreasonable in that it makes an unwarranted discrimination against the lines of business the transacting of w'hich it specifically prohibits on Sunday.

It will be observed that the general and immemorial policy of the state, as indicated by the vice and immorality act, has been to set aside Sunday as a day of rest upon which the prosecution of any business or calling excepting those occupations specially excepted in the act is prohibited. This act has been construed by this court and the Court of Errors and Appeals so as to render void every transaction which if performed upon a week day would be perfectly valid and enforceable in a court of justice. Reeves v. Butcher, 31 N. J. Law, 225. Under its provisions, sales and contracts in general, executed on that day, are void ab initio and are incapable of ratification. Riddle v. Keller, 61 N. J. Eq. 513, 48 Atl. 818; Gennert v. Wuestner, 53 N. J. Eq. 302, 31 Atl. 609. In the early case of Crocket v. Vanderveer, 3 N. J. Law, 424, Mr. Justice Pennington, speaking for this court, said: "Our statute for suppressing vice and immorality enacts that no person shall cry, show forth, or expose for sale any merchandise,...