State v. Fass

Weietkaub, C. J.

(dissenting). I agree the Federal and State constitutions do not require an exemption in favor of those who observe the seventh day. The Legislature may make a policy decision for or against an exclusion. Reasons exist for a decision either way. Our Legislature struck a balance and decided in favor of members of minority faiths when it enacted the Sunday Closing Act of 1798, Paterson’s Laws, ¶. 329. The provision now appears in N. J. S. 2A:171-4. It reads:

“If any person charged with having labored or worked on Sunday shall prove to the satisfaction of the court that he uniformly keeps the seventh day of the week as the Sabbath, habitually abstains on that day from following his usual occupation or business and from all recreation, and devotes the day to the exercise of religious worship, and if the work or labor for which such person is informed against was done and performed in his dwelling house or workshop, or on his premises, and has not disturbed other persons in the observance of the first day of the week as the Sabbath, then the defendant shall be discharged. This section shall not be construed to allow any such person to openly expose to sale on Sunday any goods, wares, merchandise or other article or thing in the line of his business or occupation.”

The exemption is tightly worded to avoid spurious claims of religious devotion on the seventh day. For one who meets that exacting test, the exemption is granted, subject to the proviso that he ffiias not disturbed other persons in the observance of the first day of the week as the Sabbath,” and to the provisions of the sentence which follows. That sen *123 tence, upon the meaning of which the decision in this case depends, reads:

“This section shall not be construed to allow any such person to openly expose to sale on Sunday any goods, wares, merchandise or other article or thing in the line of his business or occupation.” (Emphasis added)

The phrase “in the line of his business or occupation” serves merely to describe the individuals affected; that is, the sentence applies only to those who are engaged in the business or occupation of selling the article involved. It is a person so engaged who may not “openly expose to sale” the articles he vends in his regular, gainful pursuit. The key to the present case is “openly”; and the question is whether it means (1) in public places or (2) includes also any private place to which members of the public are invited as customers.

There appears to be no statute in any state using the expression “openly expose to sale” and hence decisions elsewhere are not helpful. Unfortunately the official records of the 1798 statute as well as other sources of light are meager. I gather from a fairly elaborate news account (State Gazette and New Jersey Advertiser, February 20, 1798) that the exemption was proposed as a matter of fairness to the seventh-day observer, and that the sole pertinent objection there reported was that the exemption as a whole “would much interrupt persons who went to church, and particularly if in businesses where forges, etc., are used near a place of worship.” The exemption, as adopted, guards against that type of interference in express terms, i. e., “has not disturbed other persons in the observance of the first day of the week as the Sabbath.” Whether that phrase and the sentence relating to exposure to sale were in the bill as originally introduced or were later added, we cannot know.

In any event, we can be satisfied that the exemption was made to avoid the obvious hardship upon the seventh-day observer who would be restrained by law from pursuing his *124 livelihood on one day and by his religious tenets on still another day. We know also that in 1798, as indeed today in a more limited way, wares were vended in public areas as well as upon private property. There were public market places and itinerant hawkers, the latter irritating their resident competitors then as they still do.- See Wright, Hawlcers and Wallcers in Early America 84 (1927). With this baekdrop, we must find what was meant -by “openly” in the phrase “openly expose to sale.”

It seems clear that if the Legislature intended to prohibit exposure to sale in all places, i. e., upon private property as well as in public ways and places, it would have achieved that aim by simply barring “exposure to sale * * * in the line of his business or occupation.” The word “openly” thus limits “exposure to sale * * * in the line of his business or occupation” to something less than all such exposures to sale. The majority opinion gives no effect to the word “openly.” It'is a cardinal rule that meaning must be given to all words in a statute if at all possible. Especially must that be true in this case, since the word “openly” cannot be deemed an inadvertent redundancy. The expression “openly expose to sale” is not a popular usage; it cannot be explained away as a commonplace verbal oddity. Indeed, no Sunday statute of another state uses the term. Hence we should conclude our Legislature used “openly” with deliberateness, to express an intended limitation upon “expose to sale.” This is fortified by the fact that elsewhere in the same statute the Legislature used “expose to sale” without the word “openly” in a provision reading “that no person shall cry, shew forth, or expose to sale, any wares, merchandise, etc.” The appearance of “openly” in the exemption to qualify “expose to sale” indicates the word was consciously used. Hence we should give effect to the word unless the sense of the situation makes it impossible or plainly absurd.

There is nothing in the context of the statute or in the external setting which compels us to find that “openly” *125 added nothing to the text. Sunday-closing is a touchy subject. It involves a nice adjustment among contending interests. It is plain the Legislature was concerned with the impact upon the seventh-day observer, and sought a formula which would fairly reconcile his needs with those of the Sunday observer. It concluded that all should be permitted to pursue their callings on a total of six days. It added a restraint against “disturbing” other persons “in the observance of the first day of the week as the Sabbath,” an expression which connotes interference with religious exercises. It added a restraint with respect to selling, an operation capable of such interference in different degrees in different places. It struck a balance by prohibiting exposure to sale “openly,” while permitting exposure to sale which falls beyond that description.

It seems to me that in the context of this statute, “openly” can have but one of two meanings. It may describe the manner in which the act is done, in which sense it would be the antonym of “furtive” or “concealed.” This view of the word does not seem appropriate. The merchant would hardly know what he could do if penal liability depended upon the degree of privacy or secrecy he achieved in his transactions. The standard would be unworkable. It would also be something less than a meaningful exemption for one whose livelihood depends upon sales.

On the other hand, “openly” may refer to the place of exposure to sale, meaning “in the open,” and thus differentiating the public ways and places from the private business premises. A line so drawn would make sense. We must remember the Legislature sought to relieve a member of a minority faith who because of his devotion to its demands would, but for an exemption, be injured in his livelihood. It was a matter of weighing the needs of the very limited number who could qualify for the exemption against the amount of disquiet they might generate by their selling activities. The statute itself, evidences a concern for disturbance of others in their observance of Sunday as the *126 Sabbath. As I hare said, interference of that character varies in degree with the places of activity. A decision to bar selling only from public ways and places surely cannot be said to be absurd. Indeed, I think “openly” was intended to draw precisely that line.

Even if “openly” could refer to the manner of selling as readily as it does to the place of sale, I would take the latter view. A statute which has an impact, albeit indirect, upon religious faiths should be strictly construed. When I say “strictly,” I do not mean a court should obstruct the legislative purpose with private notions of its own. Rather I mean that since respect for the faiths of others is so high in our social conscience, we should assume the Legislature intended no impingement beyond the inevitable meaning of its words, and hence that if a statute is so phrased as to invite the hazard of judicial misconception, it is better to hold the statute to the minimum restraint consistent with its terms. In this delicate area a court should be certain that it is not attributing to the Legislature a burden upon minority groups which that branch of government did not intend.

Since the facts disclose that individuals other than Eass were engaged in Sunday selling at his place of business, I should note that only Eass was here charged. We do not know the religious views and habits of the others, and their amenability to the statutory prohibition is not here involved.

I would reverse the conviction.