Two Guys From Harrison, Inc. v. Furman

• Citation: 160 A.2d 265,32 N.J. 199
• Decision Date: 04 April 1960
• Docket Number: No. A--65,A--65
• Parties: TWO GUYS FROM HARRISON, INC., a corporation, Plaintiff-Appellant, and Channel Lumber Co., a corporation, Intervening Plaintiff-Appellant, v. David D. FURMAN, Attorney General of the State of New Jersey, et al., Defendants-Respondents.
• Court: United States State Supreme Court (New Jersey)

Page 199

32 N.J. 199

160 A.2d 265

TWO GUYS FROM HARRISON, INC., a corporation, Plaintiff-Appellant and Channel Lumber Co., a corporation, Intervening Plaintiff-Appellant, v. David D. FURMAN, Attorney General of the State of New Jersey, et al., Defendants-Respondents.

No. A--65.

Supreme Court of New Jersey.

Argued Dec. 22, 1959.

Decided April 4, 1960.

John J. Clancy and David Stoffer, Newark, argued the cause for plaintiff-appellant (Clancy & Hayden, Newark, attorneys; John J. Clancy, David Stoffer and Joseph M. Jacobs, Newark, of counsel).

Julius Stein, Newark, argued the cause for intervening plaintiff-appellant (Stein & Feinseth, Newark, attorneys; Julius Stein, Newark, of counsel; Kenneth R. Stein, Newark, on the brief).

Walter H. Jones, Newark, argued the cause for intervening defendants-respondents, R. H. Macy Co., Inc., R. H. Macy Co., Inc. t/a L. Bamberger Co., and Garden State Plaza Corp., and others.

David M. Satz, Jr., Deputy Atty. Gen., argued the cause for defendant- respondent David D. Furman (David D. Furman, Atty. Gen., pro se; David M. Satz, Jr., Deputy Atty. Gen., of counsel; Robert S. Miller, Legal Asst., Trenton, on the brief).

Wilentz, Goldman, Spitzer & Sills, Perth Amboy, filed a brief for Perth Amboy Chamber of Commerce and Reynolds Bros., Inc., amici curiae (Robert N. Wilentz, Perth Amboy, of counsel).

Harkavy & Lieb, Newark, filed a brief for Rickel Bros., Inc., amicus curiae.

The opinion of the court was delivered by

WEINTRAUB, C.J.

Plaintiffs attack the so-called Sunday Closing Law, chapter 119 of the Laws of 1959, N.J.S. 2A:171--5.8 et seq., N.J.S.A. They moved for summary judgment and the Attorney General countered with a motion for judgment on the pleadings. The trial court denied plaintiffs' motion and granted defendant's. 58 N.J.Super. 313, 156 A.2d 57 (Law Div.1959). We certified plaintiffs' appeal before the Appellate Division acted upon it.

Preliminarily it is well to sketch some highlights of the history of Sunday legislation. Its genesis is traced to the command at Mount Sinai:

'Ye shall keep the sabbath therefore; for it is holy unto you: everyone that defileth it shall surely be put to death: for whosoever doeth any work therein, that soul shall be cut off from among his people. Six days may work be done; but in the seventh is the sabbath of rest, holy to the Lord; whosoever doeth any work in the sabbath day, he shall surely be put to death.' Exodus 31:14, 15.

Pfeffer, Church, State and Freedom (1953), p. 227. The Sabbath of Sinai was the seventh day and so remains for the members of some minority faiths, but for most Christians it is the first day of the week.

It is probably true, as Pfeffer points out (p. 229), that Sunday legislation was historically the product of Church-State unions. The American colonists brought with them the tradition of a state-established religion, Tudor v. Board of Education of Rutherford, 14 N.J. 31, 39, 100 A.2d 857, 45 A.L.R.2d 729 (1953), certiorari denied Gideons International v. Tudor, 348 U.S. 816, 75 S.Ct. 25, 99 L.Ed. 644 (1954), and perhaps solely for sectarian reasons the authority of colonial government was exerted to support the Christian Sabbath. Pfeffer, p. 228. Thus on December 2, 1675, an act was adopted to prohibit 'any kind of servile work, unlawful recreations, or unnecessary travels' on the 'Lord's Day,' excepting only works of mercy or necessity. Acts of the General Assembly XI, Leaming & Spicer, Grants & Concessions (2d ed.1881), p. 98. See also Leaming & Spicer, op. cit., p. 124, p. 245; Allinson, Acts of the General Assembly of the Province of New Jersey (1776), pp. 3, 4.

The first comprehensive legislation after the Revolution, entitled 'An Act for suppressing vice and immorality,' was enacted on March 16, 1798. Paterson's Laws (1800), p. 329 et seq. This statute, which follows basically the approach of the colonial act, went beyond the English statute of 1676, 29 Car. II, c. 7, the prototype for most legislation by the states. The English statute prohibited the pursuit of one's usual vocation, whereas our act was not thus confined, with the result, for example, that a Sunday contract, unrelated to the usual occupation of the parties, was held to be unlawful. Reeves v. Butcher, 31 N.J.L. 224, 225 (Sup.Ct.1865).

In 1926 the New Jersey Blue Law Revision Commission was created by Joint Resolution. In its final report of January 7, 1927, the Commission recommended that all forms of recreation be permitted on the Sabbath, subject to municipal regulation. Five bills (A--1, 32, 42, 70 and 252) were introduced in the Assembly but none passed. The statement attached to A--42 noted that 'By a general failure to enforce the present vice and immorality act, the public shows it wants no restrictions on the right to observe Sunday as the individual citizen sees fit with the possible exception that there should not be tolerated on that day amusements for pecuniary profit.'

For present purposes, we recite some of the provisions of the Sunday Law as continued in the revision of 1937. R.S. 2:207--1 to 30. The first section imposed a fine of $1 for a violation of its provisions:

'No traveling, worldly employment or business, ordinary or servile labor or work either upon land or water, except works of necessity and charity, and no shooting, fishing, * * * sporting, hunting, gunning, racing, frequenting of tippling houses, or any interludes or plays, dancing, singing, fiddling or other music for the sake of merriment, playing at football, fives, ninepins, bowls, long bullets or quoits, nor any other kind of playing, sports, pastimes or diversions shall be done, performed, used or practiced by any person within this state on the Christian Sabbath, or first day of the week, commonly called and hereinafter designated as Sunday.'

Section 2 excluded from the ban against traveling, the 'going to or returning from any church or place of worship within the distance of twenty miles, or going to call a physician, surgeon or midwife, or carrying mail to or from any post office, or going by express by order of any public officer * * *.' Section 5 excluded 'the dressing of victuals in private families or in lodging houses, inns and other houses of entertainment for the use of sojourners, travelers or strangers.' Section 6 prohibited selling. Section 11 provided for a fine of $8 if any stage shall be driven 'and sufficient reason shall not be offered to show that it be done in cases of necessity or mercy,' etc.

The foregoing illustrates the stern approach of the Sunday law. The sole significant exception (R.S. 2:207--18 et seq.) permitted, but only upon adoption of the act by municipal referendum, any person to '* * * (a) print, publish and sell newspapers, (b) sell and deliver milk, (c) walk, ride or drive for recreation, (d) hire horses and carriages or other 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 or corporation does not disturb others in their observance of Sunday,'

Subject to local regulation of recreation, sports or amusements. This exception was introduced by P.L.1933, c. 115, although it had first appeared in somewhat different form in P.L.1893, c. 24.

In 1951 there began a series of events which contributed a comic-opera touch to this delicate subject. In that year, Title 2 was revised. With respect to Sunday laws, the tentative draft cryptically recommended 'Repeal, obsolete.' The backdrop was widespread indifference to 'blue laws,' the archaic character of much of its content, and the absurdly ineffectual penalties then existing ($1 for most violations). The Legislature however did not follow the recommendation but rather revised the language and eliminated all penalties. The foreword to the revision explained:

'The general object of the Revision of the Sunday laws (N.J.S. 2A:171--1 to 2A:171--12 (N.J.S.A.)) was not to make broad changes in substance, but rather to eliminate obsolete provisions. 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., of the 1951 revision replaced extensive verbiage with a single sentence:

'No worldly employment or business, except works of necessity and charity, shall be performed or practiced by any person within this state on the Christian Sabbath, or first day of the week, commonly called and hereinafter designated as Sunday.'

Yet the sweep of the 'blue law' remained. Whereas in other jurisdictions the concept of 'necessity' could be and was inflated to meet reasonably the taste and habits of new generations, here the term remained inelastic. This was so because the following section, N.J.S. 2A:171--2, N.J.S.A., excluded only 'the preparation and sale of drugs, meals, prepared food and nonalcoholic beverages on Sunday' and 'sales of alcoholic beverages which are otherwise subject to regulation under Title 33 of the Revised Statutes.' Furthermore, although the explicit prohibition against 'traveling' and various recreational activities expressed in the earlier statute was not specifically repeated in the revision, yet N.J.S. 2A:171--6, N.J.S.A., continued the earlier provision which, only upon adoption of the act by local referendum, permitted walking, riding or driving for recreation; hire of conveyances for riding and driving; participation in any form of recreation, sport or amusement; and such routine matters as the publication and sale of newspapers and the sale and delivery of milk. See Hertz Washmobile System v. South Orange, 41 N.J.Super. 110, 130--131, 124 A.2d 68 (Law Div.1956), affirmed 25 N.J. 207, 135 A.2d 524 (1957). Thus the rigid policy of the earlier law was continued, without, however, the aid of penalties.

The revision of 1951 presumably placated the religiously sensitive without pain to those who preferred secular...