State v. Patrignani

• Decision Date: 20 January 1961
• Docket Number: No. A,A
• Citation: 65 N.J.Super. 303,167 A.2d 671
• Parties: STATE of New Jersey v. Salvatore PATRIGNANI, Francis Fineman and Jack Fineman, Defendants. pp. 50.
• Court: New Jersey County Court

Page 303

65 N.J.Super. 303

167 A.2d 671

STATE of New Jersey v. Salvatore PATRIGNANI, Francis Fineman and Jack Fineman, Defendants.

No. App. 50.

Cumberland County Court Law Division, New Jersey.

Jan. 20, 1961.

Edward S. Miller, Millville, for City of Millville (Gant & Miller, Millville, attorneys).

Samuel Adler, Bridgeton, for defendants (Ivan M. Sherman, Bridgeton, on the brief).

CAFIERO, J.S.C.

This is an appeal from a judgment entered in the Municipal Court of the City of Millville, wherein the defendants were convicted of the violation of paragraph 7:5--1 of Ordinance No. 216 adopted July 28, 1922. This paragraph provides:

'Doing business on Sunday forbidden; exceptions: It shall be unlawful for any person or persons to disturb the peace, quiet and good order in the City of Millville on the first day of the week, commonly called Sunday, by vending or exposing for sale any commodities, groceries, fruits, vegetables, clothing, shoes, ice cream, soda water or other soft drinks, articles, goods, wares or merchandise whatsoever; or by keeping open or by conducting or carrying on any manufacturing establishment, shoe cleaning or shoe shining or hat cleaning parlor, or any other mercantile shop, or establishment or place of business of any nature whatsoever.'

Defendants maintain and control a coinoperated, self-service, automatic laundromat which is open 24 hours a day, 7 days a week, without the presence of attendants or owners. It is their contention that the ordinance is not applicable to them for the following reasons:

1. The decision of the Supreme Court in Two Guys From Harrison, Inc. v. Furman, 32 N.J. 199, 160 A.2d 265 (1960), renders the Millville ordinance void as being in conflict with state policy as declared by L.1959, c. 119, N.J.S. 2A:171--5.8 et seq., N.J.S.A.

2. If the ordinance is not void, it does not apply to defendants' business because:

(a) The service rendered is a necessity and exempt from any Sunday-closing regulation.

(b) The business is not specifically prohibited by the ordinance and cannot be included in the general clause 'or establishment or place of business of any nature whatsoever,' particularly since coin-operated laundries were not in existence in 1922 when the ordinance was adopted, and are outside the class of specifically banned business listed in the ordinance.

(c) The service being fully automatic and unattended, the business does not come within the purview of the Millville ordinance.

It is undisputed that the source of power of a municipality to regulate Sunday activity is found in 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, and that the object of all Sunday legislation is 'to insure a day of quiet, rest and relaxation in the community at large.' Auto-Rite Supply Co. v. Woodbridge Tp., 25 N.J. 188, 135 A.2d 515 (1957).

Prior to the interpretation of L.1959, c. 119, N.J.S. 2A:171--5.8 et seq., N.J.S.A., by the Supreme Court in Two Guys From Harrison, Inc., supra, the purpose of the statute on Sunday closing was to compel a day of rest by blanket prohibition of all activities other than those expressly excepted. The public policy of the State was against all worldly employment on Sunday except works of charity and necessity. West Orange v. Carr's Dept. Store, 53 N.J.Super. 237, 147 A.2d 97 (Cty.Ct.1958). Therefore, the defendants contend that with the passage of L.1959, c. 119, N.J.S. 2A:171--5.8 et seq., N.J.S.A., the Legislature placed limitations on municipal legislation; that as a result, municipalities can only prohibit such specific Sunday activities as interfere with the opportunity of a day of rest, and have no power to compel a day of rest by a blanket ban on Sunday activities such as the Millville ordinance purports to do.

However, we do not believe that this is the finding declared in Two Guys From Harrison. The Supreme Court did not therein declare that a municipality is foreclosed from enacting such Sunday closing measures as it believes necessary to protect the health and welfare of the citizens of the community; nor does that decision circumscribe its authority to invoke its police power to such reasonable degree as may be required in its own local area. See Masters-Jersey, Inc. v. Paramus, 32 N.J. 296, 160 A.2d 841 (1960). While the Paramus ordinance which was before the Supreme Court is not similar to the Millville ordinance in the wording used, both were adopted prior to L.1959, c. 119, pursuant to the authority delegated by R.S. 40:48--2, N.J.S.A. As was held in the Masters-Jersey case, the new policy does not necessarily vitiate existing municipal ordinances.

The defendants also contend that chapter 119 permits whatever conduct it does not denounce. But, said the Chief Justice in the Masters-Jersey case:

'The premise is unsound. 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 any evil justifying the exercise of its delegated police power.' (32 N.J. 296, 160 A.2d 844).

We determine that the ordinance was not voided by the passage of chapter 119.

We believe that chapter 119, although it no longer compels a day of rest, still follows the basic purpose and objective of all Sunday closing legislation, which is to promote the general welfare and health of the community by prohibiting certain activities on Sunday, and thus protecting society from itself. The Millville ordinance was passed many years ago for such purpose. True, automatic, coin-operated laundromats were unheard of at that time. Conditions, customs and the views of citizens have changed since 1922. But the fact that the ordinance may not be appropriate to conditions now existing, although it was appropriate to the conditions at the time of its passage, does not affect its validity. 83 C.J.S. Sunday § 3(c), p. 802. If the Millville ordinance includes within the scope of paragraph 7:5--1 the prohibiting from keeping open on Sunday of an automatic laundromat, then the defendants have violated the municipal enactment. We believe this premise is compatible with chapter 119 in that it 'strikes at existing evils which in fact intrude upon the Sunday opportunity for surcease from ordinary tensions.' 83 N.J.L.J. 359 (1960).

The Millville ordinance prohibits not only the sale of the listed commodities, but also the keeping open, or conducting or carrying on of any manufacturing establishment, shoe cleaning or shoe shining or hat cleaning parlor, or other mercantile shop or 'establishment or place of business of any nature whatsoever.'

'The rule of Ejusdem generis serves as a helpful guide in discovering the legislative meaning. * * * Where general words follow particular words, in an enumeration describing the subject, the general words are construed to embrace only objects similar in nature to those enumerated by the antecedent specific words. In re Armour's Estate, 11 N.J. 257, 273, 94 A.2d 286, 293 (1953); Salomon v. Jersey City, 12 N.J. 379, 389, 97 A.2d 405 (1953). The sense of the ordinance is gathered from the whole expression and the meaning of words may be indicated or controlled by those with which they are associated. Martell v. Lane, 22 N.J. 110, 117, 123 A.2d 541 (1956).' Mayer v. Board of Adjustment, Montclair, 56 N.J.Super. 296, 302, 152 A.2d 860, 863 (App.Div.1959).

By applying this rule and by reading the entire section of the ordinance, it must be determined that a clothes washing...