author: Kolovsky, J. A. D.

text:
    LAY FACULTY ASSOCIATION OF REGIONAL SECONDARY SCHOOLS OF THE ARCHDIOCESE OF NEWARK, PLAINTIFF-RESPONDENT, v. ROMAN CATHOLIC ARCHDIOCESE OF NEWARK, A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted October 25, 1972
    Supplemental argument held on January 9, 1973
    Decided February 2, 1973.

      Before Judges Labrecque, Kolovsky and Matthews.

      Mr. Patrick Vaccaro, of the New York bar, admitted pro hae vice, argued the cause for appellant (Messrs. Fox, Schaclener, Neagle & Mastrangelo, attorneys; Mr. Thomas H. Gassert, of counsel and on the brief).

      Mr. Michael F. Walsh, of the Pennsylvania bar, admitted pro hac vice, argued the cause for respondent (Messrs. Meyner and Wiley, attorneys; Mr. Fdivin O. Landis, Jr. on the brief).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

The final judgment entered herein on July 22, 1971

ORDERED that, upon demand by plaintiff in writing, the defendant shall bargain collectively as to wages, hours, and working conditions with the plaintiff, which is hereby certified as the sole and exclusive bargaining- agent for the full-time professional lay teachers, librarians and guidance counselors in the 13 regional'high schools operated by defendant.

Defendant appeals.

On filing of plaintiff’s verified complaint an order to show cause issued. Plaintiff served notice that it would move to proceed summarily. R. 4:67-2(b'). The complaint alleged that plaintiff represented a majority of the “lay faculty members” in defendant’s secondary schools in Essex, Bergen, Hudson and Union Counties; that it had offered to demonstrate such representation to defendant and had requested that defendant meet with it for the purposes of collective bargaining; that, in violation of Article I, Paragraph 19 of the 1947 New Jersey Constitution, defendant had refused to bargain collectively with plaintiff; and that

7. Plaintiff is unable to obtain relief or remedy from the National Labor Relations Board because defendant is not an employer within definition of the National Labor Management Relations Act and regulations appended thereto.

The relief prayed was a judgment “ordering defendant to bargain collectively with plaintiff or to participate in a representation election as soon as possible.” Cf. Johnson v. Christ Hospital, 84 N. J. Super. 541 (Ch. Div. 1964), aff’d 45 N. J. 108 (1965).

A second count sought to restrain defendant from proffering contracts to individual lay faculty members until such time as collective bargaining between plaintiff and defendant had been completed.

On the return day of the order to show cause, April 30, 1971, defendant submitted an answering affidavit of its assistant superintendent of schools and plaintiff filed a reply affidavit. In pertinent part the affidavit submitted by defendant read as follows:

The Archdiocese has never contested the right of teaehers to either organize or present their proposals through representatives of their own choosing. Quite the contrary. The Archdiocese entered into agreements with the Lay Faculty Association [hereinafter L. F. A.] in behalf of its teacher members for the school year 1969-70 and the school year 1970-71. The Archdiocese has honored these contracts and this is not controverted.
[A meeting scheduled for January 5, 1971 to discuss a contract for the 1971-1972 school year was called off by plaintiff and was not held until March 3, 1971.]
* * * it soon became evident that L. F. A. would refuse to discuss their proposals in good faith. For the first time they asserted the right to serve as the sole and exclusive representative for all lay persons engaged in professional duties in thirteen secondary schools exclusive of Principals, Vice-Principals and persons employed on a part-time basis.
il" sfc ijt* $ sji sfc
I am advised that L. F. A. is not entitled to sole and exclusive representative status. The facts establish that it does not represent a majority, witness the Newsletter * * * issued on March 22, 1971. Further, many of the agency appointment cards are suspect in view of the circumstances under which they were procured. :i" * *
Even assuming that L. F. A. could establish that it represents a majority of the lay teachers it is nevertheless not entitled to sole and exclusive status as representative of all the teachers. I have already indicated we have at all times been ready and willing, now as in the past, to review proposals submitted by L. F. A. and enter into a contract with it in behalf of its teacher members.
The Affidavit of the plaintiff [1T15] takes the position that whatever rights the plaintiff may have flow from the case of Johnson v. Christ Hospital. This case is clearly distinguishable from our situation. We have not at any time disputed the right of our teachers to organize and have, in fact, entered into contracts with L. F. A. in behalf of its teacher members.
I am aware there is no legislation in the State of New Jersey to guide the Oourt and that the Court will, therefore, be called upon to exercise its discretion under all the circumstances. While we are not ‘public employers’ in the literal sense, we most certainly must be considered quási-publie institutions in the operation of our schools. Neither the Constitution nor Johnson create the right in L. F. A. to serve as sole and exclusive representative for those by whom it has not been chosen to act. The constitutional rights of those who do not desire to be represented by L. F. A. have a right to be protected as much as those who choose to be represented by L. F. A. The Court, I am certain, will therefore take judicial notice of the vital public interest in continuing our schools without interruption.

Argument on the issues raised by the conflicting affidavits took place on three separate days, with the primary dispute involving the question whether plaintiff represented the majority it claimed. To resolve that question, the court entered its order of May 13, 1971 directing that a representation election be conducted on June 4, 1971. The body chosen by the court to conduct the election was defendant’s nominee, the Honest Ballot Association. (Plaintiff had nominated the New Jersey State Board of Mediation.)

Among the provisions regulating the election embodied in the order of May 13, in addition to details relating to the voting and polling procedures, were:

A. * * *
4. Those eligible to vote shall be all full-time lay teachers, degreed librarians and guidance counselors, of the defendant’s 13 regional secondary schools, who are employed on the last payroll period prior to the signing of this Order, except as hereinafter provided.
5. All Principals, Vice Principals, part-time teachers, nurses and all other personnel not specifically mentioned in paragraph 4 shall he excluded from voting. Ballots of teachers, librarians and guidance counselors shall be segregated and reported separately by the Board, subject to determination by the Court as to the appropriate bargaining unit.
B. The question of whether plaintiff shall be the sole and exclusive bargaining representative for all those in the unit found to he appropriate, is hereby reserved for decision by the Court after hearing and with full opportunity to present Briefs on the question.

The court’s subsequent order of May 27, 1971, entered pursuant to directions given by the Supreme Court when it on May 26, 1971 vacated an Appellate Division stay of the election, provided for a further separate tabulation, that of “the votes of any full time lay teachers, degreed librarians and guidance counsellors who will not be re-employed for any reason for the 1971-72 school year.”

The representation election was held on June 4, 1971 and the certification thereof filed by the Honest Ballot Association showed the following breakdown of the votes cast by each category of employees on the question, “Do you wish to be represented for purposes of collective bargaining by— Lay Eaculty Association?”:

LAY TEACHERS (315 votes)
Yes 198
No 116
Blank 1
LAY TEACHERS LEAVING SYSTEM (70 votes)
Yes 60
No 9
Blank 1
RELIGIOUS TEACHERS (128 votes)
Yes 11
No 117
GUIDANCE COUNSELLORS (24 votes)
Yes 11
No 13
LIBRARIANS (9 votes)
Yes 4
No 4
Blank 1
LIBRARIANS NOT IN SYSTEM (2 votes)
Yes 1
No 1

Following a pretrial conference, the matter came on for trial and resulted in the judgment appealed from. The trial court granted defendant’s application for a partial stay of judgment pending appeal so that any contract agreed on between plaintiff and defendant would be binding only on defendant and such of its employees as were members of plaintiff association.

The various aspects of the court’s rulings leading to the final judgment will be mentioned later in the course of our discussion of the several points argued by defendant for reversal. Initially to be considered, however, is defendant’s criticism of the trial court’s action in calling upon defendant to make offers of proof with respect to several factual aspects of the case rather than hearing evidence with respect thereto. We find no merit in defendant’s argument; it suffered no prejudice from the court’s rulings. In the instances in which the court ruled that the proffer would suffice it accepted the proffered facts as having been proven. In those circumstances there was no error in foreclosing defendant from offering testimony to repeat what was already in the record by way of proffer.

Defendant first argues that “the doctrine of federal preemption deprives the court of jurisdiction.”

It is to be noted at the outset that defendant does not contend, and could not successfully contend, that the New Jersey courts do not have jurisdiction of the subject matter, that is, “an entire lack of power to hear or determine the case.” 20 Am. Jur. 2d, Courts, § 87 at 449 (1965). Our courts have the power to enforce rights granted by the constitutional provision that “[pjersons in private employment shall have the right to organize and bargain collectively.” N. J. Const. (1947), Art. I, par. 19. See Cooper v. Nutley Sun Printing Co., Inc., 36 N. J. 189, 195 (1961); Johnson v. Christ Hospital, 84 N. J. Super. 541, 544-545 (Ch. Div. 1964), aff’d 45 N. J. 108 (1965).

We emphasize this because if a court does lack jurisdiction of the subject matter in the strict sense of that term, then jurisdiction cannot be conferred by agreement of the parties or by waiver resulting from a party’s failure to interpose a timely objection to the assumption of jurisdiction. State v. Osborn, 32 N. J. 117, 121-122 (1960).

On the other hand, if the court does have jurisdiction of the subject matter but by reason of controlling legislation may be required to yield it in the circumstances of a particular case, the objection to the exercise of such jurisdiction must be raised by one of the parties or by the court. Absent a timely objection, the court may act. Busch & Sons v. Retail Union of N. J., Local 108, 15 N. J. 226, 233 (1954).

We leave aside for the moment the question whether defendant made a timely objection to the court’s exercise of its jurisdiction in the case and proceed to a consideration of the merits of defendant’s claim. Defendant contends that the court was precluded from exercising its jurisdiction over the dispute because of the provisions of the Labor-Management Relations Act, 1947, 29 U. S. C. A., c. 7.

That Act "pre-empts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the Act.” Amalgamated Ass’n of St., E. R. & M. C. Emp. v. Lockridge, 403 U. S. 274, 276, 91 S. Ct. 1909, 1913, 29 L. Ed. 2d 473 (1971). If a timely objection is interposed in a labor relations case, a court must yield and not exercise its jurisdiction if the controversy is "arguably” subject to the jurisdiction of the National Labor Relations Board [Board] (San Diego Building Trades Council, etc. v. Garmon, 359 U. S. 236, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959); Amalgamated Ass’n of St. E. R. & M. C. Emp. v. Lockridge, supra) unless it appears that the Board has declined or would decline to assert jurisdiction.

We agree with defendant that the controversy here— whether plaintiff is entitled to be certified as the sole and exclusive bargaining agent of the employees involved and whether defendant is required to bargain collectively with plaintiff — is within the jurisdiction of the Board. There is no provision in the Labor-Management Relations Act, 1947, exempting the employments here involved from its provisions. Cf. Johnson v. Christ Hospital, supra, 84 N. J. Super. at 545.

Further, we agree that in cases arguably within the jurisdiction of the Board, the question whether the Board would decline to assert jurisdiction is a matter for determination by it, not by a court. Radio & T.V. Broad Tech. v. Broadcast Serv., 380 U. S. 255, 256, 85 S. Ct. 876, 877, 13 L. Ed 3d 789 (1965); Browning King Co. of N. Y. v. Local 195, 34 N. J. Super. 13, 31-33 (App. Div. 1955).

That determination by the Board may be evidenced in several ways, the most obvious by a showing that the controversy presented to the court had previously been presented to the Board and that it had refused to take jurisdiction. Cf. Cooper v. Nutley Sun Printing Co., Inc., supra, 36 N. J. at 194.

Another method is to show that published jurisdictional standards, duly adopted by the Board, clearly establish that it would not take jurisdiction over the class of cases to which the subject controversy belongs. 48 Am. Jur. 3d, Labor and Labor Relations, § 431 at 315 (1970).

A third method, a request to the Board for an advisory opinion, is provided by section 103.98 of the Board’s “Rules and Regulations,” which read as follows:

Petition for Advisory Opinion; who may file; where to file, (a) Whenever a party to a proceeding before any agency or court of any State or Territory is in doubt whether the Board would assert jurisdiction on the basis of its current jurisdictional standards, he may file a petition with the Board for an advisory opinion on whether it would assert jurisdiction on the basis of its current standards.
(b) Whenever an agency or court of any State or Territory is in doubt whether the Board would assert jurisdiction over the parties in a proceeding pending before such agency or court, the agency or court may file a petition with the Board for an advisory opinion on whether the Board would decline to assert jurisdiction on the basis of its current standards.

Plaintiff did not ask the Board to assume jurisdiction. Nor does the record show that published jurisdictional standards of the Board establish that it would not assert jurisdiction over the controversy here involved.

Nevertheless, it does not follow that we should adopt defendant’s suggestion and order the action dismissed, leaving plaintiff to start anew by filing a petition for an election with the Board and then a new action in our courts if the Board declines to assert jurisdiction.

That suggestion might have merit if it appeared that defendant had interposed objection to the court’s exercise of jurisdiction at the inception of these proceedings. It did not. On the contrary, initially defendant agreed that it was appropriate for the court to exercise its jurisdiction.

The answering affidavit filed by it on the return day of the order to show cause not only did not deny the allegations of the complaint that “plaintiff is unable to obtain relief from the National Labor Relations Board,” but it affirmatively recognized the propriety of the court’s exercising jurisdiction. See the language of the last paragraph of defendant’s answering affidavit quoted early in this opinion.

Additional evidence of defendant’s acknowledgment that the court could exercise its jurisdiction in this case appears in defendant’s written proffer of proof dated May 17, 1971.

Again, when defendant applied to this court on May 24 and 28, 1971 for leave to appeal and for a stay of the election provided for in the court’s order of May 17, 1971, it did not assert that the court’s jurisdiction had been preempted by the federal statute. It did not challenge the right of the court to exercise jurisdiction even though defendant had theretofore on May 14 filed an answer, whose emphasis was on a denial of plaintiff’s right to “sole and exclusive status” and an allegation that its members were “engaged in quasi-public employment,” but which also included, in addition to a denial of paragraphs 3 to 8 of the first count of the complaint, a “Third Separate Defense” — the cryptic statement, “This court lacks jurisdiction.”

Rather, defendant’s application for a stay was bottomed on contentions that (1) too early a date had been set for the election and (2) the court, in accordance with the “standard procedure in representation elections,” should have determined the appropriate bargaining unit before ordering the election.

That, too, was the gist of the argument presented in the affidavit of defendant’s attorney dated May 25, 1971, filed in the Supreme Court in opposition to plaintiff’s application to vacate a temporary stay which the Appellate Division had granted. We quote the last paragraph of that affidavit since it clearly evinces an acknowledgment that the court might properly proceed to try the case and enter judgment:

11. There is no emergency so far as the holding of a representation election is concerned. The history of the relationship between the litigants, as set forth in the Affidavits of both parties, demonstrates the contrary. Johnson [Johnson v. Christ Hospital, supra] clearly sets forth the course which this ease should take in the Trial Court. The parties should present their testimony. A determination should then be made as to those eligible to vote and the appropriate unit for purposes of the election. Both parties should then be afforded adequate time within which to conduct an orderly program of information.

Nevertheless, on the record here, we would not be justified in ruling that defendant is foreclosed from arguing before us that the judgment cannot stand absent a determination by the Board that it would not assert jurisdiction, since the issue of whether the Board had jurisdiction or would exercise it was decided by the trial court after it was raised in the amendment filed by defendant on July 7, 1971 to the pretrial order entered on July 2, 1971.

The court ruled that there was not sufficient interstate commerce involvement to give the Board jurisdiction. But, as we have ruled, that determination was one to be made by the Board, not bv the court.

However, the fact that defendant did initially agree to the exercise of jurisdiction by the court militates strongly against its suggestion that we should dismiss the action since there is still available a means of ascertaining from the Board whether it would assert jurisdiction — this by a petition for an advisory opinion.

The fact that this cause is now at the appellate level affords no reason for not seeking an advisory opinion from the Board. See Cox’s Food Center, Inc. v. Retail Clerks U., Loc. No. 1653, 91 Idaho 274, 420 P. 2d 645, 655 (1966). The Board’s regulations permit the filing of the petition at any stage of a judicial proceeding.

While the court might itself file the petition for an advisory opinion, we deem it more appropriate that the matter be presented to the Board by the parties and, in view of defendant’s belated raising of the preemption issue, that the initial petition called for by the Board’s regulation, section 102.99, be filed by defendant, with plaintiff thereafter filing a response as provided in section 102.101. Defendant should file such petition within 20 days after the date of filing of this opinion.

If the advisory opinion of the Board concludes that it would assert jurisdiction over the dispute, then the court will enter an order reversing the judgment below. However, if the Board concludes that it would not assert jurisdiction, or if defendant fails to file the petition for an advisory opinion within the 20-day period above provided for, then we shall enter an order affirming the judgment appealed from. We shall do so because we are satisfied that none of the other six points argued by defendant, which we shall discuss, would warrant a reversal of the judgment.

There is no substance to defendant’s contention that it was denied a trial on the issues of the right to an election and the size and composition of the appropriate bargaining unit. There was a trial of those issues, with the court considering not only the testimony which defendant offered but also those facts which the court accepted as true after defendant had made a proffer thereof. As we have above ruled, defendant has no cause to complain because the court did not permit it to offer testimony which would be but a repetition of what was already in the record by way of the accepted proffer.

Likewise without merit is the suggestion that the issue as to the size and composition of the bargaining units should have been decided before the election was held. That issue was appropriately left for decision after the election with defendant’s rights fully protected by the provisions of the orders of May 13 and May 27, 1971 directing separate tabulations of the votes of the several classes of employees whose right to vote defendant challenged.

The record supports, and there was no error in, the trial court’s determination that (1) lay teachers and (2) teachers who were members of a religious order formed distinct and separate identifiable units, so that the votes of the latter group were not to be counted in resolving the question as to who was to represent the lay teachers.

Defendant next contends that “department chairmen, librarians, guidance counselors and non-returning teachers should have been excluded from the bargaining unit.” Each group so listed requires separate consideration.

We need not decide whether it was proper to count the vote of lay teachers who were employed on the date of the election but were not to be rehired for the school year 1971-1972 because even if their votes (60 for and 9 against plaintiff) were eliminated, the result of the election would be the same. The only effect would be to reduce plaintiff’s plurality from 131 to 80. However, it may be noted that it is generally held that one employed on the eligibility date and on the election date is entitled to vote, even though before the election he has given notice of an intention to quit after the election date or even though the employer has determined, prior to the election date, to discharge him after that date. 48 Am. Jur. 2d, Labor and Labor Relations, § 506 at 357-358 (1970).

The record supports, and we find no justification for disturbing, the trial court’s finding that guidance counsellors and librarians, who hold teaching certificates and who receive the same salary as lay teachers, are part of the faculty with an identifiable community of interest with lay teachers so as to be appropriately included in the same bargaining unit.

Defendant’s challenge to the right to vote of teachers who w'ere also department heads was made for the first time after the election; hence there was no provision in the orders of May 13 and May 27 for a separate tabulation of their votes.

The trial court ruled that the challenge came too late but nevertheless took a proffer of proof and testimony relating to the teachers who acted as department heads, the duties they performed and the powers they could and did exercise. The testimony disclosed, among other things, that those teachers apparently carried a “full teaching load,” five periods out of the nine periods in the school day, in addition to exercising supervisory activities. In only one of the 13 schools did the department heads devote more than 30% of their time to “supervisory activities”; in the other 12 they spent at least 70% of their time in their teaching duties.

In those circumstances, and in view of the evidence as to the functions, duties and limited powers of the department heads, we find no error in the court’s ruling that the teachers who acted as department heads in those 12 schools could belong to the same bargaining unit as the other lay teachers. The record supports the determination that the department heads were not “supervisors” within the meaning of that term embodied in the cases and statutes holding it inappropriate, in view of the potential conflict of interest, to include persons who are actually “supervisors” as part of the same bargaining unit as those they supervise. Cf. 48 Am. Jur. 2d, Labor and Labor Relations, § 454 at 331-332 (1970), and cases cited therein dealing with the applicable provisions of the National Labor Relations Act, 29 U. S. C. A., §§ 152(3) and 164(a); Bd. of Ed., West Orange v. Wilton, 57 N. J. 404 (1971); Bowman v. Hackensack Hospital Ass’n, 116 N. J. Super. 260 (Ch. Div. 1971).

The court’s ruling that the department heads who devote more than 30% of their time to supervisory duties are not to be included in the bargaining unit has no impact on the result of the election. All those department heads are in one school and defendant acknowledged that no school has more than eight department heads. A reduction of eight in the number of votes east for plaintiff would still leave it with a substantial plurality.

We find no merit to defendant’s contention that “the election was improper in that sufficient time for an orderly program of education was not allowed,” nor in its claim that there should have been separate bargaining units established for each school rather than a single one embracing all the 13 schools. The latter argument chooses to ignore the fact that the parties themselves had recognized the propriety of a single bargaining unit — witness the contract for the prior year covering all the schools as one unit.

Defendant’s final contention is that the election should be set aside because of alleged misconduct by plaintiff prior to and at the elections. The court rejected the claim, finding no conduct warranting a setting aside of the election. The court’s findings and conclusion are adequately supported by the record.

We retain jurisdiction pending disposition of the proceeding for an advisory opinion which we have ordered.


source: Caselaw Access Project

author: McKenzie, J. C. C.,

license: Public Domain

text:
    JEANETTE MORRISON, PLAINTIFF, v. CHARLES P. MORRISON, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided December 22, 1972.

      Mr. David Silver for plaintiff.
   McKenzie, J. C. C.,

Temporarily Assigned.

Plaintiff sues for divorce under N. J. S. A. 2A:34-2(d) which defines the cause of action as:

Separation, provided that the husband and wife have lived separate and apart in different habitations for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation : provided, further that after the 18-month period there shall be a jiresumption that there is no reasonable prospect of reconciliation. [hereinafter referred to as subsection (d)]

Defendant did not answer or appear.

Plaintiff wife testified that the parties were living together in Newark, New Jersey, on October 15, 1969, when he was arrested and jailed for armed robbery. Although he was subsequently released for a short period pending trial, he has never returned to live with her since that date. Defendant was convicted of the charges and is presently serving a sentence in the New Jersey State Prison.

Plaintiff argues that the cause of separation is immaterial and the above facts alone entitle her to a divorce. If plaintiff’s position is well founded, then the question arises as to what effect is to be given to N. J. S. A. 2A:3A-2(g) which provides the right to a divorce based on

Imprisonment of the defendant for 18 or more consecutive months after marriage, provided that where the action is not commenced until after the defendant’s release, the parties have not resumed cohabitation following such imprisonment [hereinafter referred to as subsection (g)l

Similarly, if all separations of 18 months’ duration are cognizable under subsection (d), then it follows that where a spouse is institutionalized for a mental illness, a cause of action for divorce arises at the end of 18 months, and one need not wait for the expiration of the 24-month period specified in N. J. 8. A. 2A:34-2(f) :

Institutionalization for mental illness for a period of 24 or more consecutive months subsequent to marriage and next preceding the filing of the complaint, [hereinafter referred to as subsection (f) ]

The interrelationship of these provisions of our new divorce law has not been dealt with in any previously reported case. See note in 25 Rutgers L. Rev. 476, at 482-484.

It is suggested in the report of the Study Commission submitted to the Legislature prior to the adoption of the new divorce law that subsections (f) and (g) were desirable to prevent a narrow judicial construction of subsection (d) which might limit the granting of divorces under that subsection to those separations which are voluntary in nature. N. J. Divorce Law Study Commission Final Report (May 11, 1970), at 74. The Study Commission report points out (at 113-137) that many states which have adopted a period of separation as a cause of action for divorce have specified that the separation must be voluntary or consensual in nature. Except for lengthening the time period from one year to 18 months, our Legislature has adopted the basis of this cause of action as recommended by the Study Commission, omitting any requirement that the separation be voluntary.

However, the Legislature, in adopting subsection (f), lengthened the period of institutionalization for mental illness to 24 months, thus clearly intending that where a separation is so caused, a complaint for divorce cannot be brought after only 18 months under subsection (d). Similarly, it must be presumed that in enacting subsection (g), the Legislature intended that a separation resulting from a defendant’s imprisonment would not in each case necessarily give rise to a cause of action under subsection (d). To hold otherwise would emasculate completely subsections (f) and (g), contrary to the rule of statutory construction that legislative enactments should be construed to give full force and effect to each and every part, harmonizing them if practicable to make them consistent with each other and with the general scope and purpose of the statute. See Jersey City v. Dept. of Civil Service, 7 N. J. 509 (1951); General Investment Co. v. American Hide & Leather Co., 97 N. J. Eq. 214 (Ch. Div. 1925) aff’d 98 N. J. Eq. 326 (E. & A. 1925); May v. Nutley Board of Commissioners, 111 N. J. L. 166 (Sup. Ct. 1933). To be avoided is a construction which renders any part inoperative, superfluous or meaningless. Hoffman v. Hock, 8 N. J. 397 (1952); Rosenthal v. State Employees’ Retirement System, 30 N. J. Super. 136 (App. Div. 1954).

The rationale of subsection (d) is to terminate dead marriages, regardless of fault or lack of fault. Quinn v. Quinn, 118 N. J. Super. 413 (Ch. Div. 1972); N. J. Divorce Study Commission Final Report, op cit, at 5 — 6.

Conversely, marriages which may still be viable are not to be dissolved, in the absence of fault. Clearly, then, it would be reasonable for the Legislature, in certain situations where the separation is involuntary and its cause not rooted in the marital relationship, to provide different standards by which to determine whether a divorce should be granted. TKe vitality of the marriage may be determined by criteria which are different where the circumstances are different.

Thus, under subsection (d) the extent of the breach of the marital relationship is tested by whether there is a reasonable prospect of reconciliation. Under subsection (g) a distinction is drawn between a defendant who is still imprisoned and one who has been released. A divorce cannot be granted against the latter if the parties resumed cohabitation after his release. Where a defendant is still incarcerated when the suit is commenced, as where he continues to be institutionalized .for mental illness in a suit brought under subsection (f), the Legislature has in effect determined that such circumstances in themselves indicate little likelihood that the marital relationship will be resumed in the future.

This court therefore holds that where a separation is caused by either imprisonment, or institutionalization of a spouse for mental illness, a suit for divorce based on such separation cannot be brought under subsection (d), but must satisfy the requirements of the subsection of the statute which deals with that specific situation. Any other separation, voluntary or involuntary, which continues for 18 or more consecutive months, gives rise to a cause of action for divorce, if it also appears that there is no reasonable prospect of reconciliation.

Hence, the proofs offered in the instant case that defendant, while living with his wife, was arrested, removed from the marital home, imprisoned, and thereafter separated from plaintiff for a period of 18 months or more, are insufficient in themselves to entitle plaintiff to a divorce. (Plaintiff here was unable to prove defendant had been actually imprisoned for 18 consecutive months, as required by subsection (g).)

The court has not ignored the presumption against reconciliation engrafted by the Legislature onto the Study Commission’s recommended subsection (d). The question arises, how would this presumption be rebutted as a practical matter? It is most imlikely that a plaintiff or plaintiff’s witness will volunteer evidence to overcome a presumption in favor of plaintiff’s cause of action. On the other hand, a defendant, in the face of denials by the plaintiff, will find it difficult to persuade the court that a resumption of co-habitation is plausible. Eeconeiliation cannot be achieved unilaterally. It is reasonable to assume, therefore, that the court in behalf of the State, which continues to be interested in preserving viable marriages, is expected to satisfy itself that there has been in fact a breakdown of the marriage before dissolving it. Where the interrogation of the witnesses by counsel, together with the surrounding circumstances, leaves the court in doubt in this regard, it should conduct its own inquiry and elicit the necessary testimony. Then, in the absence of facts and circumstances sufficient to persuade the court to hold affirmatively that there is a reasonable prospect of reconciliation, the contrary status, supported by the presumption, prevails, and the parties having lived separate and apart for more than 18 months are entitled to a divorce.

In the present case, in addition to the period of separation resulting from the arrest and imprisonment of defendant, further interrogation by the court elicited additional facts. Prior to defendant’s arrest the marriage was not without problems. The parties had separated more than once, defendant moving to his mother’s home on these occasions. Although he was still living with plaintiff at the time of his arrest, defendant had advised her that he intended to move permanently to his mother’s house. In December 1969, a few months after his arrest, defendant was released for a period pending trial, during which time he visited plaintiff once, exchanged a few words, and then left to stay with his mother until he was again incarcerated.

In view of this additional evidence the court finds that the marriage relationship had already deteriorated to the extent that it is reasonable for the court to infer that a separation for the required period would have resulted at or about that time, regardless of whether defendant was arrested, and that under all of the circumstances there is no reasonable prospect of reconciliation. Plaintiff should not be deprived of her remedy because of a fortuitous event in which she had no part or responsibility.

A judgment for divorce in favor of plaintiff will be entered accordingly.


text:
    EDMOND ANDERSON, JR., PLAINTIFF, v. ANNETTE ANDERSON, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided January 16, 1973.

      Mr. Michael Blacker for plaintiff.

      Mr. George Warren for defendant.
   McKenzie, J. C. C.,

Temporarily Assigned. Plaintiff seeks a judgment of divorce based on 18 months of separation, pursuant to N. J. 8. A. 2A:3A-2 (d) which allows a divorce based on

Separation, provided that the husband and wife have lived separate and apart in different habitations for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation : provided, further that after the 18-month period there shall be a presumption that there is no reasonable prospect of reconciliation.

The separation here commenced when plaintiff was arrested for armed robbery, and continued for more than 18 months following his subsequent conviction and imprisonment for the crime.

N. J. 8. A. 2A :3A-2 (g) provides:

Imprisonment of the defendant for 18 or more consecutive months after marriage, provided that where the action is not commenced until after the defendant’s release, the parties have not resumed cohabitation following such imprisonment.

The cause of action being based on the imprisonment of defendant, it is clear that under subsection (g) the imprisoned spouse is denied the right to a divorce.

This court has recentfy considered the interrelationship of the various separation provisions of the new divorce law. We held in Morrison v. Morrison, 122 N. J. Super. 277 (Ch. Div. 1972), that a separation of 18 months resulting from the imprisonment of the defendant must be brought under subsection (g) and not subsection (d).

The validity of the distinction which we thereby made between those two subsections of the new divorce law is apparent in the present ease. If plaintiff is permitted to obtain a divorce under subsection (d), the obvious intent of the Legislature under subsection (g), to deny a divorce to the imprisoned party, is thwarted.

In Morrison the wife of the imprisoned defendant was granted a divorce under subsection (d) when it appeared that there was a substantial breakdown of the marriage prior to the imprisonment of the husband, so that a separation of the parties would have occurred at or about that time regardless of the husband’s arrest. His incarceration was a fortuitous event which the court held did not deprive plaintiff of her cause of action.

In the present ease there was no real deterioration of the relationship of the parties prior to plaintiff’s imprisonment. Plaintiff could only state:

May I say this, we was married approximately six months before my incarceration and a few months before my incarceration things was beginning to fade, fade a little bit, yon know. It wasn’t exactly like it was when we first got married. * * *

This falls far short of establishing the type of permanent marital breakdown which would persuade the court that plaintiff’s incarceration was merely coincidental so that he could proceed under subsection (d).

Plaintiff is therefore barred from relief at this time, and his complaint must be dismissed.


author: Bubslix, E. W., J. C. C.

text:
    EMERSON NEW YORK—NEW JERSEY, INC., PLAINTIFF, v. BROOKWOOD TELEVISION, INC., AND FREDERICK M. WOOD, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 7, 1973.

      Mr. Selwyn Schechter, attorney for plaintiff.

      Messrs. Cannon & Mountford, attorneys for defendants.
   Bubslix, E. W., J. C. C.

This action involves a claim by plaintiff Emerson New York — New Jersey, Inc. for an amount allegedly owed to it by defendant Brookwood Television, Inc. on account of merchandise sold and delivered by plaintiff to Brookwood. Also named as defendant is Frederick Wood, who, as president of Brookwood, executed a guaranty of payment to plaintiff of all debts that were owing at the time and that should thereafter become due from Brookwood to plaintiff. Wood filed a crossclaim for indemnification against Brookwood, which has been defaulted for failure to answer. Plaintiff now moves for summary judgment against defendant Wood on the written guaranty.

The determination of this motion requires the application of the usual standards for disposing of a motion for summary judgment pursuant to R. 4:46. Where it palpably appears that there is no genuine issue of material fact presented, the court sliould determine the case on the applicable law. Bowler v. Fidelity & Cas. Co. of New York, 99 N. J. Super. 184 (App. Div. 1968). All doubts in such proceedings are to be resolved in favor of the opponent of the motion. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67 (1954).

In opposition to plaintiff’s motion, Wood has submitted an affidavit in which he asserts that during the summer of 1971 plaintiff, through its agents, orally agreed that Wood be released from his obligation and that one Eugene Casóle, apparently an officer of Brookwood, be thenceforth responsible for payments from Brookwood to plaintiff;- Wood alleges that subsequently Casóle met with plaintiff’s representatives and agreed to this arrangement.

Plaintiff, though presumably not admitting the oral agreement, contends that it would have no legal effect as far as Wood’s guaranty obligation is concerned. Therefore, assuming the existence of such an oral agreement, the issue is whether it is legally sufficient to alter or revoke a written guaranty.

Plaintiff invokes the “parol evidence rule” to prevent the consideration of any facts pertaining to the alleged .-subsequent oral agreement. The parol evidence rule precludes, as a matter of substantive law, the introduction of evidence of antecedent negotiations or agreements to alter a subsequent writing, on the theory that such antecedent matters were integrated in the written agreement. See Atlantic Northern Airlines v. Schwimmer, 12 N. J. 293 (1953). The rule, however, does not preclude evidence that would tend to subvert or overthrow the writing entirely, Union Fur Shop v. Max Melzer, Inc., 133 N. J. Eq. 416 (E. & A. 1943); nor does it preclude evidence of agreements made subsequent to the writing. Frank Wirth, Inc. v. Essex Amusement Corp., 115 N. J. L. 228 (E. & A. 1935); McKinstry v. Runk, 12 N. J. Eq. 60 (Ch. 1858). The parol evidence rule is therefore not applicable to the instant case, since the alleged oral agreement was subsequent 'to the written guaranty and would, if otherwise legally sufficient, set aside the guaranty entirely, insofar as it affects Wood.

There remains the question of whether the alleged subsequent oral transactions, if established, would be operative so as to relieve Wood of his obligation under the guaranty. Focusing for the moment on the oral release of Wood from his contingent liability1', the fact that said release was merely oral does not call into play N. J. 8. A. 25 :1 — 5 (statute of frauds). The statute applies to “a special promise to answer for the debt, default or miscarriage of another person” (N. J. S. A. 25:l-5(b)) but it is silent concerning a release from such a promise. Therefore, although a writing may have been required for the guaranty originally, a release from that obligation could be accomplished orally, notwithstanding the statute of frauds.

It is essential to the success of defendant’s contention that the subsequent oral transaction was effectual that there appear some consideration for plaintiff’s undertaking to release defendant from his obligation. Plaintiff correctly points out that if evidence of a subsequent agreement is admissible, that agreement must be supported by new and independent consideration. Levine v. Blumenthal, 117 N. J. L. 23 (Sup. Ct. 1936). It is apparent that plaintiff’s agreement that defendant be relieved of his obligation under the guaranty could not have amounted to an oral gift since there was no delivery of anything that would represent the obligation. Delivery is an essential ingredient of any gift, including a gift by way of forgiveness of an indebtedness. See Guerin v. Cassidy, 38 N. J. Super. 454 (Ch. Div. 1956). Presumably the rule should be the same in the case of a contingent indebtedness, as here, which could be the subject of a gift by way of forgiveness of the same. Therefore, defendant’s affidavit in opposition to plaintiff’s motion must set forth a basis for at least an inference that there was some consideration for plaintiff’s release of defendant from his guaranty obligation.

The court has concluded that defendant’s affidavit successfully resists plaintiff’s motion for summary judgment because it contains allegations which, at least if more fully developed, support an inference that plaintiff, Wood and Casóle entered into an arrangement which amounted to a novation, as far as the guaranty was concerned. In order to constitute a novation there must be an agreement among the creditor, the old debtor and the new debtor to substitute the new debtor for the old debtor and to release the old debtor. Tolland v. Lista, 46 N. J. Super. 272 (App. Div. 1957); In re Carpentiero, 102 N. J. Super. 395 (Cty. Ct. 1968). The consideration for the new agreement is the mutual discharge of the old contract. Sixteenth Ward B. & L. Ass’n of Newark v. Reliable Loan, Mortgage & Security Co., 125 N. J. Eq. 340 (E. & A. 1939).

Defendant alleges in his affidavit that by the terms of the oral agreement, plaintiff and defendant understood that “Eugene Casóle would start making new payments” and that “I [defendant Wood] was no longer responsible for any purchases of merchandise that was delivered or to be delivered to Brookwood Television, Inc.” Defendant further alleges that plaintiff’s representatives subsequently met with Casóle and “he thereby agreed to the terms as aforestated.” Defendant’s affidavit therefore indicates that he be afforded the opportunity to attempt by competent proof to establish a novation. It should be noted that an intention to discharge the former debtor (or contingent debtor) in the course of the novation need not be shown by express words to that effect but may be implied from the facts and circumstances. Mayfair Farms Holding Corp. v. Kruvant Enterprises Co., 64 N. J. Super. 465 (App. Div. 1960). Furthermore, the question of whether a debt has been novated is ordinarily one of fact. Morecraft v. Allen, 78 N. J. L. 729 (E. & A. 1910); Alexander v. Manza, 22 N. J. Misc. 88, 36 A. 2d 143 (Sup. Ct. 1944).

There appears to be no New Jersey case dealing with the question of whether an oral novation is effective under these circumstances. The court is of the opinion that proof of the oral novation should be allowed. 37 C. J. S. Statute of Frauds § 25 at 533 (1943), contains the following relevant discussion of novations:

The statute of frauds does not apply to a novation or a transaction in the nature of a novation whereby one person promises to assume the debt of another in consideration that the original debtor be discharged therefrom, and the creditor substitutes the promisor in place of the original debtor and extinguishes his debt.

And then:

•! * * The discharge of the debtor must be full and complete, operating as an extinguishment of the debt at the time the new promise is made, and as a consideration therefor; but an agreement whereby one guarantor or surety is substituted for another is not within the statute of frauds, although the obligation of the original debtor is not extinguished, [at 534; emphasis added]

One case in which this rule is applied to facts similar to the facts in the instant case is Holt v. Empire Tire & Rubber Co., 33 Ga. App. 723, 127 S. E. 803 (Ct. App. 1925). Such a rule does not tend to subvert the purposes of the statute of frauds. The written evidence of the original guaranty establishes the existence of that type of an obligation initially, and testimony as to the oral arrangement tends merely to establish a substitution of obligors.

This case must therefore proceed to trial and defendant Wood will have the burden of establishing the novation. Mayfair Farms Holding Corp. v. Kruvant Enterprises Co., supra. To be resolved at that time is a further issue raised by an affidavit of Francis M. Wood, vice-president of Brookwood, stating that two cheeks drawn by Brook-wood in favor of plaintiff, although initially dishonored, were the subject of a subsequent amicable settlement. Plaintiff’s motion for summary judgment is accordingly denied.


author: Doan, J. C. C.,

text:
    DIMOR, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, AND PASSAIC CINEMA, INC., A CORPORATION OF THE STATE OF NEW JERSEY, AND S.M.H. AMUSEMENT CO., A CORPORATION OF THE STATE OF NEW JERSEY, INTERVENORS, v. CITY OF PASSAIC, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Argued January 19, 1973
    Decided January 22, 1973.

      Mr. Richard K. Rosenberg argued the cause for plaintiff (Messrs. Heller & Laiks, attorneys).

      Mr. H. Ronald Levine argued the cause for intervenor Passaic Cinema, Inc. (Mr. Robert M. Kronman, attorney).

      Mr. Hymen Siegendorf argued the cause for intervenor S. M. H. Amusement Co. (Messrs. Siegendorf, Michaelis & Miller, attorneys).

      Mr. Otto F. Blazsek argued the cause for defendant (Mr. Joseph Scancarella, City Attorney).
   Doan, J. C. C.,

Temporarily Assigned. On January 6, 1972 defendant City of Passaic through its mayor and council, adopted ordinance No. 135-72 which set forth certain licensing requirements with respect to motion picture theatres. Its effective date was January 26, 1972. Paragraph 4 of the ordinance provides:

It shall be unlawful for any person conducting a theatre or moving picture show to exhibit immoral pictures or shows of any character, whose dominant theme appeals to the prurient interest, is patently offensive, affronts contemporary community standards relating to sexual matters and is without redeeming social value.

The ordinance provides for a penalty of up to a $200 fine a day for each day that such a motion picture is shown.

Plaintiff Dimor, Inc., and intervenors Passaic Cinema, Inc. and S. M. H. Amusement Co., are owners respectively of the Montauk, Capital and Central Theatres, establishments regularly in the business of showing motion pictures in the City of Passaic. This action was instituted under the Declaratory Judgment Act (N. J. S. A. 2A:16-52) whereby plaintiff and intervenors seek to have said paragraph 4 declared illegal and void as being preempted by the statute dealing with obscenity, N. J. S. A. 2A :115 — 1.1 et seq., which was extant at the time the ordinance was adopted. That statute defined the term “obscene” as follows:

(a) The word “obscene” wherever it appears in the chapter to which this act is a supplement shall mean that which to the average person, applying contemporary community standards, when considered as a whole, has as its dominant theme or purpose an appeal to prurient interest.
(b) Any book, publication, picture, writing, record or other mechanical or electronic audio or visual reproduction or other material shall be obscene within the meaning of subsection (a) hereof if it is established that:
(1) The dominant theme of the material taken as a whole appeals to a prurient interest;
(2) The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters ; and
(3) The material is utterly without redeeming social value.

The penalty for uttering or exposing obscene literature or pictures was made a misdemeanor by N. J. S. A. 2A :115-2.

The issue presented here for consideration is essentially whether N. J. S. A. 2A :115 — 1.1 et seq. declares a state policy which preempts any competing municipal action under the Home Rule Act, N. J. S. A. 40:48-l et seq.; whether the statute at the time of the enactment of this ordinance was so pervasive so as to clearly preempt the field and thus render the attacked, portion of the ordinance ultra vires and void.

Whether a given field has been preempted by the Legislature is strictly a question of fact. State v. Pinkos, 117 N. J. Super. 104, 106 (App. Div. 1971).

It should be noted that the above-cited statutory definition of “obscene” was amended by L. 1971, c. 449, § 3, effective February 16, 1972, whereby the requirement that the material be “utterly without redeeming social value” was eliminated. This amended statute (N. J. S. A. 2A :115-1.1) was subsequently declared unconstitutional in Cine-Com Theatres Eastern States, Inc. v. Lordi, 351 F. Supp. 42 (D. N. J. filed November 20, 1972). This decision of the U. S. District Court is not binding on us, and it is one with which I do not agree. State v. Speciale, 96 N. J. Super. 1, 7 (App. Div. 1967). Even if it were, it would íeavé undisturbed the remaining provisions of N. J. S. A. 2A:115 —N. J. S. A. 2A:115-1.11. Without regard to the determination made by the Federal District Court with respect to the amended statute, consideration must initially be given, in this proceeding, to the relation of the ordinance to the statutory authority existing at the time of its enactment in deciding whether a preemption had occurred. This must be before any constitutional question may be reached.

The basic statutory authority for a municipality to enact an ordinance such as in this case, is found in the omnibus police powers provisions, N. J. S. A. 40:48-2 which provides:

Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the' United States, as it may deem necessary 'and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law.

This power, however, is a limited delegated power. Its exercise is, of course, subject to the control of the state statutes. As noted by Chief Justice Weintraub in Kennedy v. Newark, 29 N. J. 178 (1959) :

It is fundamental that in the exercise of delegated power a municipality may not legislate in conflict with state statutes. [Citations omitted] [At 186]

and,

[However,] before it can be said that the police power delegated to local government must remain inert, it must be clear that the Legislature intended to occupy the field or declared a policy at war with the decision made by local government. The delegated power may not be restrained upon the basis of speculation or dubious inference. [At 186-187]

In a more expansive discussion of this area of conflict and preemption, Chief Justice Weintraub, in the case of Summer v. Teaneck, 53 N. J. 548 (1969), stated:

A municipality may not contradict a policy the Legislature establishes. * * :i" Hence an ordinance will fall if it permits what a statute expressly forbids or forbids what a statute expressly authorizes. Viven absent such evident conflict, a municipality may be unable to exercise a power it would otherwise have if the Legislature has preempted the field. * * * It is not enough that the Legislature has legislated upon the subject, for the question is whether the Legislature i?itended its action to prechide the exercise of the delegated police power. Masters-Jersey, Inc. v. Mayor and General Council of Borough of Paramus, 32 N. J. 296 (1960). * * * The ultimate question is whether, upon a survey of all the interests involved in the subject, it can be said with confidence that the Legislature intended to immobilize the municipalities from dealing with local aspects otherwise within their power to act. [At 554-555; italics provided]

See also, Ringlieb v. Parsippany-Troy Hills Tp. 59 N. J. 348 (1971); State v. Ulesky, 54 N. J. 26 (1969), and Chester Tp. v. Panicucci, 116 N. J. Super. 229 (App. Div. 1971).

It is, therefore, plain that even if there is no apparent conflict the court must still decide whether the State has preempted the field. If, upon an examination of the totality of the subject matter, it is concluded that the Legislature intended to solely occupy the field, it would then have preempted the same and the ordinance of necessity would be ultra vires and invalid. As noted in the recent case of Coast Cigarettes Sales, Inc. v. Mayor, etc., Long Branch, 121 N. J. Super. 439 (Law Div., 1972), the municipality’s powers:

* * * relate to matters of local concern which may be determined to be necessary and proper for the good and welfare of local inhabitants. They do not extend to matters involving state policy or in the realm of affairs of general public interest and applicability. The needs of such matters inherently in need of uniform treatment do not vary locally and municipal regulation thereof would not be useful and might, by diverse treatment, cause substantial harm. [At 445: citations omitted]

It is clear that the matter of obscenity must be governed by a uniform mode of treatment. The affront against public morals, although of necessity a matter of local concern, is predominantly within the domain of the State. It must be so. State v. Hudson County News Co., 41 N. J. 247, 265-266 (1963). This philosophy is evidenced by an examination of the Legislative findings of the amended statute, L. 1971, c. 449, § 2, effective February 16, 1972, and L. 1971, c. 446, § 1, effective February 16, 1972, which refer, among other things, to the “effective legal action against obscene matter” and the availability of obscene material to “State residents.” Although both of these references are to the amended act, they quite clearly demonstrate that the Legislature intended even in its prior legislation, under consideration here, that the statutory manner of treatment of obscene matter was to be the sole uniform mode of treatment. Paragraph 4 of the Passaic ordinance and the state statute concededly are substantially identical in their definition of “obscene” material. While the ordinance is specifically limited to the exhibition of moving pictures, the statute is broader in its treatment of prohibited acts. But there is little doubt, and the court finds, that the statute does encompass the ordinance and that the State has preempted the field. To permit each municipality to enact its own laws and regulations in this area would be in direct opposition to the legislative mandate.

The subject of obscenity is one of “general public interest and applicability” which necessitated “uniform treatment.” Coast Cigarettes Sales, Inc. v. Mayor, etc., Long Branch, supra. Surveying all the interests involved it is quite clear that “the Legislature intended to immobilize the municipalities from dealing with local aspects” of the subject matter of obscenitjc Summer v. Teaneck, supra.

In Whitney v. Municipal Court, 58 Cal. 2d 907, 27 Cal. Rptr. 16, 377 P. 2d 80 (Sup. Ct. 1962), where it was evident that the Legislature had demonstrated an intent to occupy the field, the obscenity ordinance was struck down. Cf. In re Lane, Cal., 18 Cal. Rptr. 33, 367 P. 2d 673 (1961) ; People v. Marler, 199 Cal. App. 2d Supp. 889, 18 Cal. Rptr. 923 (App. Div. 1962).

Paragraph 4 of ordinance No. 135-72 of the City of Passaic is adjudged ultra vires and void.


author: Pashman, A. J. S. C.

text:
    JOHN FASINO AND CHERYL FASINO, tr/a SEVEN ELEVEN STORE NO. 11461, PLAINTIFFS, v. MAYOR AND MEMBERS OF THE BOROUGH COUNCIL OF THE BOROUGH OF MONTVALE, A MUNICIPAL BODY CORPORATE OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 29, 1973.

      Mr. William, Sellinger for plaintiffs John Fasino and Cheryl Fasino, etc.

      Mr. Robert E. McGuire for defendants Mayor and Council of the Borough of Montvale (Messrs. Randall, Randall and McGuire, attorneys; Mr. Robert E. McGuire on the brief).
   Pashman, A. J. S. C.

The question for decision is the constitutionality of an ordinance approved by Montvale.

The parties present this simple and undecided question: Is the ordinance of Montvale regulating opening and closing hours of retail business establishments valid?

My answer is no. This is not a constitutional exercise of the police power.

Plaintiffs are the owners and operators of a Seven-Eleven grocery store located within the Borough of Montvale. Their store is not a large supermarket but rather a small convenience store where customers can pick up last-minute items such as milk, eggs, orange juice, snacks, etc. Such stores have in effect taken the place of the local corner store. Plaintiffs, in order to meet the needs and desires of their customers, have recently decided to keep their store open 24 hours per day. They say that in remaining open plaintiffs are providing a needed service to the community.

The Borough of Montvale is a small community of 7500 primarily residential in character. In order to protect the peace and quiet of their community, to eliminate traffic noises during the night hours, and to lessen the hazards of nighttime crime, defendants have adopted the following ordinance:

AN ORDINANCE TO ESTABLISH HOURS OF OPENING AND CLOSING FOR RETAIL ESTABLISHMENTS IN THE MUNICIPALITY.
ARTICLE 1. Retail Businesses. Declaration of Purpose.
It is hereby declared to be the purpose of this Article to regulate the closing hours of various retail businesses within the Borough of Montvale in order to avoid the noise, inconvenience and disturbance to residential areas within the Borough which are caused when retail establishments remain open during the late evening hours. It is hereby declared and determined to be in the best interests of the health, safety and welfare of the residents of the Borough of Mont-vale that the retail businesses regulated by this article cease the conduct of their business at a reasonable hour.
ARTICLE 2. Definitions. As used in this Article.
Retail Business means and includes any business which holds itself out to the general public for the sale at retail of goods and services.
ARTICLE 3. Closing Hours.
Every retail business within the Borough of Montvale shall be closed to the public, and business with the public therein shall be and is hereby prohibited after the hour of 11:00 p.m. and before the hour of 6:30 A.M. of any day. The provisions of this Section shall not apply to the sale of food and/or beverages sold exclusively for on premises consumption.
ARTICLE 4. All ordinances or parts of ordinances inconsistent with the provisions of this ordinance are hereby repealed to such inconsistencies.
ARTICLE 5. This ordinance shall take effect immediately upon publication after final passage and approval as required by law.

Plaintiffs challenge the validity of the ordinance on the grounds that:

(1) It is an arbitrary exercise of the zoning power;

(2) It is unreasonable and discriminatory as it applies to their business;

(3) There is no substantial relation to the public health, safety or welfare to justify the restrictions imposed on a legitimate business.

Montvale claims the ordinance is valid as a reasonable exercise of the police power to regulate businesses in order to protect the slumber of its residents by eliminating the noise, light and traffic that accompanies all-night retail operations. Defendants also contend that they are unable to provide adequate police protection to all-night establishments since Montvale has only two policemen on duty during the hours of 11 p.m. until 7 a.m.

N. J. S. A. 40:52-l (g) gives municipalities the power to license and regulate all businesses within its boundaries. It is perfectly clear that private business may be regulated for the common good and welfare. Nebbia v. New York, 291 U. S. 502, 54 S. Ct. 505, 78 L. Ed. 940 (1934); Barbier v. Connolly, 113 U. 8. 27, 5 S. Ct. 357, 28 L. Ed. 923 (1885); Jones v. Haridor Realty Corp., 37 N. J. 384 (1962); Two Guys from Harrison, Inc. v. Furman, 32 N. J. 199 (1960); Masters-Jersey, Inc. v. Paramus, 32 N. J. 296 (1960). However, it is equally clear that the particular regulation must bear a substantial relation to the public health, safety or welfare; otherwise there would be an unwarranted intrusion on the basic right of private property. Brandon v. Montclair, 124 N. J. L. 135, 142 (Sup. Ct. 1940), aff'd 125 N. J. L. 367 (E. & A. 1940); Delawanna Iron & Metal Co. v. Albrecht, 9 N. J. 424, 429 (1952). “It is requisite that the common welfare be advantaged to a substantial degree to justify the exercise of the police power.” N. J. Good Humor, Inc. v. Bradley Beach, 124 N. J. L. 162, 168 (E. & A. 1940). As Justice Eoberts, speaking for the United States Supreme Court, stated in Nebbia v. New York, supra:

The Fifth Amendment, in the field of federal activity and the Fourteenth, as respects state action, do not prohibit governmental regulation for the public welfare. They merely condition the exertion of the admitted power, by securing that the end shall be accomplished by methods consistent with due process. And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. It results that a regulation valid for one sort of business, or in given circumstances, mag be invalid for another sort, or for the same business under other circumstances, because the reasonableness of each regulation depends upon the relevant facts. [291 U. S. at 525, 54 S. Ct. at 510, 511; emphasis added].

Justice Hall of our own Supreme Court has phrased this requirement as follows:

Where the police power has been granted to a municipal corporation, it is elementary that it can be exercised only in those areas where regulation is needful for the common good, i. e., public health, safety, morals or general welfare, and then only by reasonable means substantially connected with the public interest designed to be advanced. [Moyant v. Paramus, 30 N. J. 528, 544 (1959)]

See also Mogelefsky v. Schoem, 90 N. J. Super. 49 (App. Div. 1966), mod. 50 N. J. 588; Schmidt v. Board of Adjustment, Newark, 9 N. J. 405 (1952).

Thus, it is our duty to determine whether this particular regulation is needful for the common good and that the means selected has a substantial relationship to the public interest to be advanced.

Defendants argue that New Jersey has taken the lead in approving ordinances designed to restrict the hours of operation of particular businesses. Falco v. Atlantic City, 99 N. J. L. 19 (Sup. Ct. 1923) (barber shops); Wagman v. Trenton, 102 N. J. L. 492 (Sup. Ct. 1926) (jewelry auctions) ; Spiro Drug Service v. Union City, 130 N. J. L. 1 (Sup. Ct. 1943), aff’d 130 N. J. L. 496 (E. & A. 1943) (drug stores); Starkey v. Atlantic City, 132 N. J. L. 27 (Sup. Ct. 1944) (drug stores); Amodio v. West New York, 133 N. J. L. 220 (Sup. Ct. 1945) (barber shops); Tonsorial Inc. v. Union City, 115 N. J. Super. 33 (Law Div. 1971) (barber shops).

Likewise, the highest courts of other jurisdictions have upheld closing hours for certain types of businesses. Barbier v. Connolly, 113 U. S. 27, 5 S. Ct. 357, 28 L. Ed. 923 (1884) (laundries); Soon Hing v. Crowley, 113 U. S. 703, 5 S. Ct. 730, 28 L. Ed. 1145 (1885) (laundries); Ratliff v. Hill, 293 Ky. 36, 168 S. W. 2d 336 (Ct. App. 1943) (road house); People v. Raub, 9 Mich. App. 114, 155 N. W. 2d 878 (App. Ct. 1968) (car wash); State v. Grant, 107 N. H. 1, 216 A. 2d 790 (Sup. Ct. 1966) (eating places); Gibbons v. Chicago, 34 Ill. 2d 102, 214 N. E. 2d 740 (Sup. Ct. 1966), cert. den. 385 U. S. 829, 87 S. Ct. 63, 17 L. Ed. 2d 65 (1966) (coin operated laundries).

However, an even greater number of courts have held specific regulations invalid. Yee Gee v. San Francisco, 235 F. 757 (N. D. Cal. 1916) (laundries); Perry Trading Co. v. Tallahassee, 128 Fla. 424, 174 So. 854 (Sup. Ct. 1937); Ex Parte Harrell, 76 Fla. 4, 79 So. 166 (Sup. Ct. 1918) (all places of business); Olds v. Klotz, 131 Ohio St. 447, 3 N. E. 2d 371 (Sup. Ct. 1936) (groceries); Dave Abrams Inc. v. City of Buffalo, 276 N. Y. 494, 12 N. E. 2d 174 (Ct. App. 1937), aff'g 250 App. Div. 820, 296 N. Y. S. 446 (App. Div. 1937) (shoe stores); Town of McCool v. Blaine, 194 Miss. 221, 11 So. 2d 801 (Sup. Ct. 1943) (grocery stores) ; Justesen’s Food Stores, Inc. v. Tulare, 12 Cal. 2d 324, 84 P. 2d 140 (Sup. Ct. 1938) (food stores); Coaticook v. Lathrop, 22 Quebec C. S. 225 (Quebec 1902) (all shops); Saville v. Corless, 46 Utah 495, 151 P. 51 (Sup. Ct. 1915) (all commercial establishments); Good Humor Corp. v. Long Beach, 22 N. Y. S. 2d 382 (Sup. Ct. 1940) (ice cream vendors); People v. Kuc, 272 N. Y. 72, 4 N. E. 2d 939 (Ct. App. 1936) (newspaper hawking); Goodin v. Philadelphia, 222 Miss. 77, 75 So. 2d 279 (Sup. Ct. 1954) (all places of business); Town of Dyess v. Williams, 247 Ark. 155, 444 S. W. 2d 701 (Sup. Ct. 1969) (all places of business).

The foregoing is not intended to be exhaustive of the subject, but it appears that the majority view is that ordinances which restrict hours of business operation are invalid. Further, a close examination of the cases both in our State and in other jurisdictions which have upheld such ordinances will reveal that those specific businesses that were regulated presented a clear danger to the public health or safety or both. Thus, in the first case in our State upholding such regulation, Falco v. Atlantic City, supra, it was stated:

The fruitfulness of many barber shops as spreaders of certain forms of contagious disease is a matter of common knowledge, and the power of the state and its subordinate agents to provide for licensing, regulation, and inspection of such places in the interest of the public health cannot be doubted. * * *
Barber shops are public places, frequented by all classes. Sanitary supervision thereof is very generally regarded as necessary * * *.

That court in 1923 found that the health hazards inherent in barber shops necessitated regulation of their hours of operation to protect the public health. And when the validity of barber shop closing legislation was again attacked in Amodio v. West New York, 133 N. J. L. 220 (Sup. Ct. 1945), it was held that such regulation is “necessary in order to protect the general welfare and health of persons working in barber shops.” (at 222). After pointing out the hazards of communicable diseases, our former Supreme Court went on to say:

[Barbering] is an occupation intimately identified with the public health; and consequently it is subject to regulation in the common interest. * * *'
Wednesday afternoon and holiday closings compensate for the long hours of service on the other work days; and it is therefore a measure aimed to foster the health of the workers, and thus to advance the essential public interest, [at 224]

In Amodio there was no challenge to the constitutionality of N. J. S. A. 40:52-l(k) which specifically empowered municipalities to regulate “the hours of opening and closing on weekdays” of barber shops. 133 N. J. L. at 223. These reasons were recently reiterated in Tonsorial Inc. v. Union City, 115 N. J. Super. 33 (Law Div. 1971).

The two cases dealing with regulation of drug store hours in our State were specifically decided on the grounds that wartime emergencies and the shortage of pharmacists due to the draft necessitated mandatory closing hours to provide respite for druggists and to protect the public from mistakes in filling prescriptions by overworked pharmacists. Spiro Drug Service Inc. v. Union City, 130 N. J. L. 496 (E. & A. 1943), aff'g 130 N. J. L. 1 (Sup. Ct.), and Starkey v. Atlantic City, 132 N. J. L. 27 (Sup. Ct. 1944).

In Wagman v. Trenton, 102 N. J. L. 492 (Sup. Ct. 1926), an ordinance forbidding auction sales of jewelry between the hours of 6 p.m. and 8 a.m. was upheld as necessary to protect the public from fraud by the use of artificial lights at night and to protect against the previous experience by customers carrying away their purchases of being robbed. At 494.

Other cases have also turned on a finding of some specific, direct relationship to the public health or safety as required by the cases cited earlier, such as Nebbia v. New York, supra, and Moyant v. Paramus, supra, etc. The validity of an ordinance regulating the hours of operation of street vendors was upheld as necessary for “the welfare of the vendors themselves, the protection of the peace and comfort of the community during the night, and that at night pedestrians are more difficult to see. People going to and from the vehicles of [ice cream] vendors stopped on the public roadways are endangered by this lack of visibility.” Mister Softee v. Hoboken, 77 N. J. Super. 354, at 374 (Law Div. 1962).

An examination of the cases cited above from other jurisdictions will similarly reveal direct and specific relation to the public health or safetj7. Thus, the United States Supreme Court in Barbier v. Connolly, supra, and Soon Hing v. Crowley, supra, upheld ordinances of the City of San Francisco closing laundries located in certain districts at night because of the danger to the closely compacted wooden buildings of those districts from the open fires used at that time in the laundry business. However, when the same restrictions imposed by the ordinance were extended to the entire San Francisco peninsula, they were held invalid since the open spaces of the county did not require the same protection as the compacted wooden buildings of the city. Yee Gee v. San Francisco, supra:

The question here presented is whether, without regard to the existence oí such conditions [fire or health hazards], a municipality may impose a general limitation or restriction upon the citizen as to the hours within which he may prosecute his chosen industry — a respect to which independently of particular conditions, there is obviously no natural or inherent menace to the public — without trenching upon that degree of freedom and liberty of action guaranteed him by the Constitution. [235 F. at 763]

That court went on to answer this question resoundingly in the negative:

For that neither a municipality nor the Legislature of a state may competently interfere under the guise of a police regulation with the liberty of the citizen in the conduct of his business — legitimate and harmless in its essential character — beyond a point reasonably required for the protection of the public, is too thoroughly settled to call for any extended citation of authority in its support, [at 763]

It appears that substantially all the closing hour regulations point up the relationship between dangers to the public and the business regulated. In Ratliff v. Hill, supra, the Kentucky Court of Appeals based its holding on the inherent danger to public morals from unregulated road houses and bars located in districts outside of city limits and therefore not under the regular police supervision of any community. In State v. Grant, supra, the New Hampshire Supreme Court upheld an ordinance closing all eating places from midnight to 6 a.m. since it was nondiseriminatory (citing Hart v. Teaneck, 135 N. J. L. 174 (E. & A. 1947)) and the obvious connection of public eating places to the public health (food contamination, for example) and to protect the public peace and order (drunks and rowdies were congregating at all-night eateries resulting in complaints of fights, noise and trouble-making).

People v. Raub, supra, involved a mechanical car wash which in the ordinary course of operation produced large amounts of noise which disturbed the surrounding residents. And Gibbons v. Chicago, supra, upheld closing of coin-operated laundries after 11 p.m. because of the inherent danger of fire from overloaded dryers or washers during the late night and early morning hours when such places were usually left unattended, the danger of spread of contagious disease if the machines were not operating at a high enough temperature, the risk of injury to unsupervised customers, and the high incidence of crime at such unattended establishments.

In the present case we are asked to invalidate an ordinance restricting the hours of every business in the community with the minor exception of establishments where there is consumption of food and drink on the premises. The hours of service of most of the latter are regulated under the Alcohol Beverage Law, N. J. 8. A. 33 :l-39 and 33 :l-40. In effect, therefore, the ordinance adopted by defendants is a general closing law. Despite briefing by the parties and extensive research by the court, we have not found any case which has upheld a general closing law. On the contrary, numerous authorities have flatly stated that such regulation is invalid.

[L]aws requiring businesses of a purely mercantile and commercial nature to close at a specified time have been held to be unconstitutional under the principle that a regulation of the hours during which a business may be operated cannot be justified on the theory that it was passed under the police power, where the regulation does not directly or remotely tend to benefit the public health, morals, safety, or general welfare. A particular lawful business in no wise noxious cannot be regulated as to closing hours while other lawful businesses are left unregulated. [16 Am. Jur. 2d Constitutional Law § 325; citations omitted].
[A] municipality has no authority, under its police power, to regulate arbitrarily and unreasonably the hours of private business, conducted in a reasonable manner, under the guise of promoting the public health or general welfare of the community. Laws which regulate closing hours and do not in any manner directly or remotely tend to promote public health, safety, good order and peace of the community cannot be justified as an exercise of municipal police power. [56 Am. Jur. 2d, Municipal Corporations § 474; citations omitted]. See also 55 A. L. R. 242 et seq. and 98 A. L. R. 1088 et seq.

And MeQuillm, in his multi-volume treatise on municipal corporations, states:

YCithout doubt, an ordinance regulating the hours during which a business may be operated which does not tend to benefit the public health, morals, safety or general welfare, cannot be justified on the theory that it was passed under the police power. Yee Gee v. San Francisco, 235 F. 757 (N. D. Cal. 1915) ; Jackson v. Murray-Reed-Sloane & Co., 297 Ky. 1, 178 S. W. 2d 847 (1944). [McQuillin, Municipal Corporations (3d ed.) § 24.328.]
No police regulation should be allowed to interfere with the enjoyment of individual rights beyond the necessities of the case. [McQuillin, op. cit., § 18.17]

Numerous courts have agreed with these general principles as discussed.

In a more recent case the Supreme Court of Mississippi held that a city ordinance making it a crime to operate any business establishment after 10 p.m., in absence of a showing that the ordinance was necessary for preservation of good order and peace of the municipality, was invalid since a municipality cannot arbitrarily and unreasonably regulate hours of private business under the guise of promoting the public health or general welfare. Goodin v. City of Philadelphia, 222 Miss. 77, 75 So. 2d 279 (Sup. Ct. 1954).

Montvale’s ordinance is very similar in that it restricts substantially every business without regard to its individual effect on the public health, safety, morals, or general welfare.

The case of Olds v. Klotz, 131 Ohio St. 447, 3 N. E. 2d 371 (Sup. Ct. 1936), like the one under consideration, involved an attempt to regulate the hours of operation of retail food and grocery stores. Ohio, like New Jersey, had previously upheld such regulation of barber shops because of consideration of morals and safety. Wilson v. City of Zanesville, 130 Ohio St. 286, 199 N. E. 187 (1935). In a long discourse, the Supreme Court of Ohio distinguished the businesses involved and said:

It is important to keep in mind certain fundamental differences between a barbershop and a retail grocery store. The barbershop is a place where services rendered are of a personal nature. The cutting and shampooing of the hair and the shaving and massage of the face are the most common. All of these are performed in the home, some measurably, others extensively. They are not absolute essentials. On the contrary, places for distribution of foodstuffs are wholly necessary in order to furnish daily nourishment to the masses of our people. Wisely, laws have been enacted to assure the purity and wholesomeness of food; but the limitation of hours that products of that kind may be sold by retail to the public seems to be of minor consideration in relation to the public health in comparison with the necessity of having food available at the time it may be required to supply pressing human want. Food is vital to health, and even to life itself. Its need for nourishment to sick and well, to adult and child, is quite as pressing a consideration from a health standpoint, as that which requires that food be retailed in stores under conditions which are consonant with proper requirements of sanitation. All the authorities seem to be in accord with the proposition that the police power does not ewtend to the limitation of hours ivithin ivhieh retail stores, selling either groceries or other commodities or both, may be kept open to customers. Every business has some relation to the general welfare, because there is none which is operated to supply consumers generally that does not have some public aspect; but the regulation thereof is not within the police power unless the relation to the public interest and the common good is substantial and the terms of the law or ordinance are reasonable and not arbitrary in character. The exercise of the police power is inherent in government and essential to its existence and inevitably comes into conflict with the constitutional guaranties of the right of property and liberty of contract. In each case presented the court must draw the line of demarcation. Courts do not attempt to define police power with exactness, and inevitably the individual case must stand upon its own footing. [3 N. E. 2d at 373; emphasis added]

Defendants have basically urged two grounds for sustaining the police power in this instance, first, that Montvale’s ordinance is necessary to protect the peace and quiet of their community; that traffic going to and from the plaintiffs place of business during the early morning hours will disturb the slumber of residents adjacent to the property of plaintiff; that business results in loud voices which carry at night, and that glare radiates from electric signs and parking lot lights.

Municipalities may lawfully regulate the erection of signs and lights or buildings. Likewise, they have wide discretion in regulating traffic on their streets. However, there is no necessity to correct these problems by a general ordinance regulating business hours. Neither can a general ordinance be justified by these problems at one location. Such regulation is void as overbroad in its sweep. More appropriate legislation would have been directly aimed at the detriment perceived by the defendants, i. direct regulation of traffic speed on local streets, direct prohibition of glaring lights, or prohibition of raucus noises. With regard to the last-mentioned item, see Kovacs v. Cooper, 366 U. S. 77, 69 S. Ct. 448, 93 L. Ed. 513 (1949), and Gundaker Central Motors v. Gassert, 23 N. J. 71 (1956), where ordinances restricting disturbing noises were upheld.

In any event, the reasons advanced by Montvale to sustain the ordinance in question were specifically rejected by the Supreme Court of Arkansas in Town of Dyess v. Williams, 247 Ark. 155, 444 S. W. 2d 701 (1969). In that case an ordinance closing all places of business from midnight to 4 a.m. was passed and justified because of teenage patronage, horn blowing and traffic noises. The Supreme Court stated:

It is evident that the town’s purpose could readily be accomplished by the enactment of an ordinance directly prohibiting the objectionable conduct. There is no need for the town to attain its objective indirectly by closing all places engaged in lawful business after midnight. s; * * Here, too, the sweep of the ordinance goes too far beyond the necessities of the situation. [Discussion by the court of Goodin v. Philadelphia, supra, is omitted].

The second basis urged by defendants to sustain the subject ordinance is the inability of the municipality to provide adequate police coverage for plaintiffs’ store during the late night and early morning hours. Defendants assert that the incidence of crime is greatest during such hours when the majority of people are not up and about. They claim that their police force has only two members on duty during such hours. Consequently, it is unable to adequately cope with the problem of crime and adequately provide coverage for the shopkeeper, customer and homeowner.

This reasoning must be rejected as fallacious. One of the prime motivations for individuals to coalesce and subject themselves to governmental control is protection from the criminal element. It is one of the prime duties of governments to provide police protection. There is no justification for closing otherwise harmless businesses because the community otherwise may be forced to expend additional resources to provide adequate protection.

When this precise argument, inability to provide police protection, was raised to justify an ordinance of a small town having only two policemen which attempted to close all places of business between the hours of midnight and 4 a.m., the highest court of Kentucky rejected it.

The business of the restaurant involved in the instant case has no potential influences detrimental to public morals, but it is a useful and necessary business properly operated and we are unable to see how the closing of it between midnight and 4 A.M. would affect the health, morals, safety or welfare of the citizens of Jackson. Therefore we conclude that the ordinance is arbitrary and unreasonable and violates §§ 1 and 2 of our Bill of Rights.
The fact that the city may have to go to more expense in policing the toion at night should business be transacted at late hours is no reason for sustaining the ordinance. It might as well be said that an ordinance closing a respectable mercantile establishment during the afternoon hours would be constitutional because such a business attracts crowds into the town which require more policemen to handle when such a house is operating than when it is closed. [Jackson v. Murray-Reed-Sloane & Co., 297 Ky. 1, 178 S. W. 2d 847, 848 (Ct. App. 1944) ; emphasis added]

Brief further observations as to the foregoing objections to the ordinance may be in order. The issues seem to be (1) the relation between business health and public health, and (2) crime prevention. There is a third issue which I hold to be irrelevant, namely, aesthetics (or theologies).

(1) The relation between business health and public health is particularly strong in the climate of unemployment. It is surely in the public interest to encourage any opportunity for increased employment. Supermarkets, especially, since they generally employ the lower income groups, can serve a key function in the economic rehabilitation of this sector.

In a deeper sense, the philosophically relevant issue is the tradition of capitalism founded on an enlightened laissez faire concept, i. e., let business alone, free it to expand provided its expansion does not limit or encroach upon the legal rights, the freedom and happiness of others. It seems clear that lengthening hours can only increase freedom and happiness, first of employees of the store and second of customers, making it more convenient to make needed purchases.

(2) The only ground on which freedom and happiness might be infringed is if late hours led to increased crime. My feeling is that the opposite is probably the case. Crime is less likely in well-lighted and active busy areas, and so late closing should reduce the period in which crime is most likely to occur. If this is so, there seems to be no justification on this score for the municipal regulation of closing hours.

(3) Finally, aesthetics (public artistic taste) and theologies (public religious tastes, e. g., Sunday blue laws) are irrelevant. If aesthetic taste allows a supermarket to be built in a given area, then it is no more distasteful at one time than at another. Religious reasons are irrelevant at this time on the general principle that the highest courts have settled the Sunday closing controversy. That is no longer subject to further argument.

Ueither the Constitution nor the police power secures the right to conduct a business which injures the public at large. If any lawful business does become harmful to that public because of the manner in which it is conducted, a governmental entity has a right to provide safeguards. But government may not, under the guise of protecting the public, arbitrarily interfere with private business or impose unreasonable restrictions. If the regulation does not directly or even remotely benefit the public health, safety or general welfare, it cannot be justified.

From all of the above it is clear that the ordinance of the Borough of Montvale requiring all businesses to close from 11 p.m. to 6:30 a.m. is an invalid exercise of the police power. There is no substantial relationship to the public health, safety, morals, or general welfare. The ordinance violates the due process clause of the Fourteenth Amendment of the United States Constitution.