(dissenting). Plaintiffs have judgment vacating the local Sunday Observance ordinance under a complaint in lieu of certiorari alleging that the plaintiff Auto-Eite Supply Co. is a taxpayer and the operator in Woodbridge of “an automotive and automotive parts business,” and “It has been conducting sales of automotive parts at such place on Sundays and is at the present time conducting such sales on that day and in the future intends and desires to conduct such sales on such days,” and the co-plaintiffs “are merchants selling categories of merchandise other than automotive parts,” and “They have been and are now conducting, and in the future intend and desire to continue to conduct, sales of their merchandise on Sundays,” and that the ordinance is “an invalid and unreasonable exercise of the police power,” and “discriminatory” against Auto-Eite “in favor of gasoline stations, with reference to the sale of automotive parts on Sundays,” and against all plaintiffs “in favor of all merchants who sell merchandise on Sundays other than the categories enumerated in section 1 of the ordinance.”
This, notwithstanding N. J. S. 2A :171-1, ordaining that “No worldly employment or business, except works of neces*198sity and charity,” shall be “performed or practiced” by any person within the State on Sunday.
The holding of the Superior Court, 41 N. J. Super. 303 (Law Div. 1956), was that State v. Fair Lawn Service Center, Inc., 20 N. J. 468 (1956) “destroys the basis upon which such Sunday closing ordinances were sustained in Sherman v. City of Paterson, 82 N. J. L. 345 (Sup. Ct. 1912); Schumacker v. Little Falls Township, 92 N. J. L. 106 (Sup. Ct. 1918); and Mazzarelli v. City of Elizabeth, 11 N. J. Misc. 150 (Sup. Ct. 1933)”; that “a criminal statute without a penalty clause [N. J. S. 2A :171 — 1] is of no force and effect” and “presently we have in this State no effective statute prohibiting the carrying on of general business on the Sabbath.” And undue discrimination was found, in that the ordinance “attempts to prohibit on the Sabbath the operation of particular types of business * * * while leaving many other commercial enterprises free to carry on their business on the Sabbath as they had been doing prior to the adoption of the ordinance,” and “there is no reasonable or logical basis for singling out the particular businesses named in the ordinance while leaving many other businesses free to operate on the Sabbath * * *”; the ordinance “can hardly be said to attempt to make classifications of prohibited businesses, let alone the consideration for justification of such classification * *
The contention here is that the ordinance (a) denies the equal protection of the laws guaranteed by the Federal Constitution, and (b) the “provisions of N. J. S. 2A :171 — 1 are unenforceable against anyone, and cannot operate to prevent the invalidation of the ordinance for unconstitutional discrimination,” in that under Fair Lawn “no person may be prosecuted for violation of N. J. S. 2A:171-1, whether a proceeding to such end be brought by a municipality, a county, or the State,” and so “It follows that none of the persons selling commodities on Sunday in Woodbridge, other than the commodities prohibited by the ordinance, can be prevented from doing so by reason of the State Sunday Law”; under Fair Lawn, it is insisted, such person “cannot be *199prosecuted criminally therefor,” “nor can he be enjoined in equity or subjected to summary abatement by the local authorities, unless his sale of his commodities constitutes a nuisance or offends some other enforceable penal law or ordinance, neither of which situations has been shown to obtain in this case”; and the ordinance is void against Auto-Rite, particularly, because it is “vague and uncertain,” and if the provision concerning automotive parts means that such parts “may be sold only by gasoline stations,” it is “unconstitutionally discriminating” and “violates the equal protection clause.”
My colleagues have concluded that N. J. S. 2A :171 — 1 et seq. “stands as a declaration of state policy,” citing Gundaker Central Motors v. Gassert, 23 N. J. 71, 83 (1956), and “Within this framework municipalities may control and regulate Sunday activity,” yet the local power cannot be directed to “piecemeal prohibition and consequent subversion of basic purpose”; “Hence, although the local power is competent to deal with the measure of penalty, as well as defining works of ‘necessity and charity’ within the statutory contemplation, it is inconsistent with the statutory policy (“worldly employment or business”) to single out particular business enterprises for sanction”; the “state legislative power has declared the incidence of the prohibition and the local power may not transgress, but must conform to the superior authority.”
But I submit that the reasoning proceeds on mistaken hypotheses of law and fact.
The ordinance forbids the sale or delivery on Sunday of “any item or items of merchandise commonly known as general household electrical appliances (including, but without'in any way limiting the generality of the foregoing, television sets, radios, phonographs, refrigerators, washing machines, home electrical fixtures and appliances, and component parts of any of the foregoing); furniture, home furnishings and bedding, floor coverings, hardware, paint and wallpaper, men’s and women’s wear, shoes, automotive services and parts except as sold by gasoline stations, licensed *200by the Township of Woodbridge, within the limits of the Township of Woodbridge”; and a transgressor is rendered “liable to a fine of not more than $100 fox each offense ox imprisonment for a term not exceeding 30 days, or both such fine and imprisonment.”
In Fair Lawn the defendant operator of an automobile service station was convicted of washing an automobile on Sunday for hire in violation of N. J. S. 2A .171-1, and fined under N. J. S. 2A :169-4, providing for the punishment of one adjudged a disorderly person; and the holding was that, there being no penalty prescribed by N. J. S. 2A: 171-1 for a violation of its mandate, such transgressor “cannot [for that offense] be convicted as a disorderly person and fined as such * * *.”
N. J. S. 2A :171-1 declares in peremptory terms that there shall be no “worldly employment or business” on Sunday, save “works of necessity and charity”; and this constitutes a general affirmation of State policy wholly beyond the province of the local sxxbdivisions of government to set at naught or vary or modify. The Legislature has not prescribed sanctions for the enforcement of the policy on the state level; it has left that to the judgment and discretion of the municipalities in the exercise of the police power pursuaxxt to R. S. 40:48-3, to serve the local need and the general welfare according to the particular circumstances. It could not have meant otherwise; it is not to be presumed that the lawgivers designed to make a mere declaration of unenforceable policjq and thus to do an utterly vain and futile thing. No doubt, it had in view that a general penalty to ensure obedience might not be adequate to meet particular local exigencies. But whatever the reason, this view of the intent and purpose of the statute is clear and compelling; there is no discernible reason contra. Indeed, we have this revealing note by Judge Clapp, the chairman of the Advisory Committee on the Revision of Statutes, which drafted Title 2A, found in the foreword to the Title, adverted to by Mr. Justice Oliphant in Fair Lawn:
*201“The general object of the Revision of the Sunday laws (N. J. S. 2A:171-1 to 2A:171-12) was not to make broad changes in substance, but rather to eliminate obsolete provisions. It was intended to leave municipalities with the power, they therefore had, to control and regulate Sunday activity.”
And such was the holding of Chief Justice Vanderbilt for this Court in Gundaker Central Motors v. Gassert, cited supra.
The absence of specific penalties does not render the Sunday observance mandate of the statute nugatory and meaningless. Any place in which “illegal practices are habitually carried on is a disorderly house,” and punishable as a crime. State v. Martin, 77 N. J. L. 652 (E. & A. 1909), where the illegal practice was usury for which there was no penalty save the deprivation of the money which the statute prohibited the lender from taking; Haring v. State, 51 N. J. L. 386 (Sup. Ct. 1889), affirmed 53 N. J. L. 664 (E. & A. 1891), where the practice was betting on horse races, no longer indictable and punishable as a crime, but “was still unlawful and against the declared policy of the law”; State v. Reade, 98 N. J. L. 596 (Sup. Ct. 1923), where Sunday motion pictures and vaudeville constituted the illegal practice.
R. S. 40:48-2 empowers the municipalities to take such action as may be deemed “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,” the power of internal police regulation ample to sustain the action comprehended in the ordinance under review, and there is no occasion to resort to the power to license and regulate local businesses embodied in N. J. S. A. 40:52-1(g).
Nor is it essential to the “equal protection of the laws” that the sanctions laid down in the ordinance reach all worldly activities forbidden by the State Sunday Observance Act. A police ordinance of this class is required to be fair and reasonable and factually well founded and is presumed *202to be such until the contrary is shown; barring a showing contra, the assumption is that the measure has a rational basis within the knowledge and experience of the local lawmakers; judicial interposition is justifiable only where the action taken is patently unreasonable and oppressive, and thus an arbitrary use of the power; and the exercise of the essentially discretionary function of classification is unimpeachable if free from invidious distinctions and discriminations. It suffices if the classification have a rational and just relation either to the fulfillment of the essential legislative design or to some substantial consideration of policy or convenience bearing upon the common good; and the constitutional standard is satisfied if there be any reasonable state of facts affording just ground for the action taken, a difference of degree having material relevancy to the police regulation in view. Guill v. Mayor and Council of the City of Hoboken, 21 N. J. 574 (1956).
The principle of equality of treatment is not violated by classification which rests upon substantial differences fairly related to the public purpose to be fulfilled. Where the end is one to which legislative power may properly be addressed, it is enough “if it can be seen that in any degree, or under any reasonably conceivable circumstances, there is an actual relation between the means and the end”; when the “subject lies within the police power of the State, debatable questions as to reasonableness are not for the courts but for the legislature, which is entitled to form its own judgment, and its action within its range of discretion cannot be set aside because compliance is burdensome.” Stephenson v. Binford, 287 U. S. 251, 53 S. Ct. 181, 77 L. Ed. 288 (1932). A “wide scope of legislative discretion may be exerted in classifying without conflicting with” the equality clause of the Fourteenth Amendment; the equal protection clause “does not restrain the normal exercise of governmental power, but only abuse in the exertion of such authority, * * Louisville & N. R. Co. v. Melton, 218 U. S. 36, 30 S. Ct. 676, 54 L. Ed. 921 (1910). See also Kotch v. Board of River Port Pilot Commissioners, *203330 U. S. 552, 67 S. Ct. 910, 91 L. Ed. 1093 (1947); Jamouneau v. Harner, 16 N. J. 500 (1954). The legislative authority “is not bound to extend its regulation to all cases which it might possibly reach. The Legislature ‘is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be clearest.’ If ‘the law presumably hits the evil where it' is most felt, it is not to be overthrown because there are other instances to which it might have been applied.’ ” West Coast Hotel Co. v. Parrish, 300 U. S. 379, 57 S. Ct. 578, 81 L. Ed. 703 (1937). See Washington National Insurance Co. v. Board of Review, 1 N. J. 545 (1949); Board of Health of Weehawken Township in Hudson County v. New York Central R. Co., 4 N. J. 293 (1950).
This presumption of a substantial difference of degree related to the public exigency to be met, a blow at “the evil where it is most felt,” has not been overcome here. The ordinance has in view the maintenance of the “public peace and order” and the promotion of the “public health by repose and quiet on the day assigned for rest”; and the sale, disposition and delivery of the enumerated articles of merchandise and wearing apparel are forbidden to all alike, a measure presumably shown by experience to be most needed to serve the public object in mind; and there is no conceivable ground for the suggestion that the action is unreasonable and arbitrary, to serve purely private aims and not a public interest within the range of the police power.
A local ordinance forbidding the sale on Sunday in any store, shop or other place, of clothing, shoes, leather and findings, hats or hardware, adopted during the subsistence of the essentially similar predecessor statute, R. S. 2:207-l, was sustained as a proper exercise of local discretion “to single out certain occupations, the prosecution of business in which upon Sunday may be particularly objectionable and offensive, * * Sherman v. City of Paterson, supra. There, the ordinance enlarged the statutory fine of $2 and provided also for imprisonment; and this was sustained as a measure “to effectuate compliance with the law,” where the *204statutory fine was not deemed a “sufficient deterrent in the locality to prevent the violations of the law.” And it was said that the claim of discrimination was more fanciful than real, since “those specially prohibited by ordinance from exercising their calling upon Sunday, are also forbidden by the general law of the state from performing the same act upon that day,” and “it must be assumed that they will obey the clear mandate of the law, and not violate it, and hence, they possess no privilege, right or immunity which, under our constitutional guarantee, can be abrogated or infringed by the enforcement of a local law whose sole and only distinctive characteristic is the imposition of penalties not contained in the general act.”
See also Fennan v. Atlantic City, 88 N. J. L. 435 (Sup. Ct. 1916), affirmed 90 N. J. L. 675 (E. & A. 1917), where the ordinance forbade certain specified amusements on Sunday but excepted others; Schachter v. Hauenstein, 92 N. J. L. 104 (Sup. Ct. 1918), involving an ordinance barring Sunday store-sales of enumerated goods; and Mazzarelli v. City of Elizabeth, supra, where the ordinance imposed an added penalty for local infringement.
But it is affirmed in the opinion of this Court that these cases beginning with Sherman v. City of Paterson “all occurred at a time when the State statute contained a penalty provision, and the rationale of decision was that the municipalities could legislate in aid of the State enactment, in that the municipal power was capable of imposing more severe deterrents upon persons who chose to violate the statute with impunity for the price of a dollar,” and “the enhanced penalty for particular violations was not considered to create invidious distinctions because those not affected were presumed to be adherents to the state policy until shown otherwise”; “Today the state statute contains no penalty, and the undisputed facts in the record before us demonstrate that the statutory declaration alone has no deterrent influence upon merchants who seek Sunday trade”; “Acknowledgment of the fact necessarily requires that local enactments, to conform with state policy, must reflect an *205enforcement as broad as the purpose of the Sunday law,” and it is “no answer to suggest that in the absence of statutory enactment the local legislative power delegated under Home Rule might deal with the evil in degrees and attack it where the most pressing need is felt.”
But if under the predecessor state statute, R. S. 2:207-l, prescribing specific penalties for violations of the declared Sunday observance policy, in terms much the same as in N. J. S. 2A :171-1 et seqit was a local police function, R. S. 40:48-2, to lay down greater sanctions by ordinance in aid of the enforcement of the State policy related to particular local needs, and this was a long-established practice of legislative origin, rendered crystal clear by acceptance of this judicial interpretation of these statutes, does not the selfsame policy a fortiori obtain when the state-ordained penalties have been abrogated and enforcement of the policy relegated to the local subdivisions of government? It is the undoubted province of the Legislature so to provide; and there can be no doubt that it has done so here.
The statutory “work of necessity” is not an absolute; it varies with local conditions and circumstances, and it may vary from time to time in accordance with changing local needs; and this definitive power is given to the local legislative agency, to be exercised according to reason and discretion, free of the arbitrary action that is alien to the essential policy of the statute.
In a word, plaintiffs are seeking, not the equal protection of the laws, but rather protection against local interference with pursuits in violation of the Sunday Observance statute; and it would seem to be axiomatic that the judicial power may not be invoked in aid of plaintiffs’ avowed objective to flout the state law. “Equal protection” is not a rigid formalism, but rather a pragmatic application of the principle of equality of treatment and burden and differentiation in reasonable conformity with the public policy to be served.
This was the issue raised in Gundaker, supra, and the Eederal Supreme Court dismissed the appeal for want of a substantial federal question, 354 U. S. 933, 77 S. Ct. 1397, *2061 L. Ed. 2d 1533 (1957). There, the statute, L. 1955, c. 254, N. J. S. 2A :171-1.1, prohibited dealing in new or used ears on Sunday, on pain of specific penalties, fine or imprisonment, either or both.
But the ordinance also forbids the supplying on Sunday of “automotive services and parts except as sold by gasoline stations”; and this seeming sanction of Sunday sales of automotive parts by the operators of gasoline stations is ultra vires and void in contravention of the State statute, unless automotive parts be deemed a necessity in the same category as gasoline. On the contrary hypothesis, the provision would be severable and the remainder of the regulation would stand unaffected. Independent Warehouses, Inc. v. Scheele, 134 N. J. L. 133 (E. & A. 1946), affirmed 331 U. S. 70, 67 S. Ct. 1062, 91 L. Ed. 1346 (1947).
The ordinance is not in “conflict” with State law; it does not “impliedly grant [to “some existing business endeavors”] permission to operate in violation of the State statute.”
I would reverse the judgment.
Wacheneeld, J., concurring in result.
For affirmance — Justices Oliphant, Wacheneeld, Bub-ling and Peancis — 4.
For reversal — Justice Heheb — 1.