(concurring). I concur in the view expressed by Mr. Justice Burling that the ordinance under attack in this case is invalid. However, for purposes of emphasizing the fundamental problem facing us, I desire to reiterate the thesis put forward, namely, that the local action is condemned because it conflicts with the age-old policy of our State as set forth in N. J. S. 2A :171-1 to 6, inclusive, governing Sunday observance.
The controlling legislative declaration is clear.
“No worldly employment or business, except works of necessity and charity .shall be performed or practiced Tjy miy person within this state on * * * Sunday.” N. J. S. 24:171-1. (Emphasis added)
A more positive or more pervasive mandate would be difficult to devise. But certain activities were removed from its broad compass and authorized:
“[T]he preparation and sale of drugs, meals, prepared food and non-alcoholic beverages * * * [and] sales of alcoholic beverages *211which are otherwise subject to regulation under Title 33 of the Revised Statutes.” N. J. 8. 2A :171-2.
And it was made possible to
“(a) print, publish and sell newspapers, (b) sell and deliver milk, (c) walk, ride or drive for recreation, (d) hire conveyances for riding and driving, or (e) engage or take part in any form of recreation, sport or amusement that is not unlawful on other days of the week, if in so doing such person does not disturb others in their observance of Sunday,” N. J. S. 2A :171-6,
providing the electorate of a particular municipality approves such conduct by popular vote on the question at a primary or general election. N. J. S. 2A :171 — 6. Except for certain other businesses which are specifically proscribed on Sunday by separate enactments (referred to in Gundaker Central Motors v. Gassert, 23 N. J. 71 (1956)), this outline represents the pattern of the legislative will with respect to Sunday work activities.
I quite agree that it is within the competence of municipal governments to adopt ordinances on the subject as an exercise of its authority under R. S. 40:48-2 to legislate in the interest of the public health, welfare and safety. But such governments are creatures of statutory origin and the boundaries of permissible action by them are those expressly delegated by the State or reasonably necessary to effectuate the delegation. They are impotent to act in opposition to general regulations established by the Legislature for purposes of state-wide control. They can never rise above the source of their power.
It cannot be said reasonably even in the broad field of police power that a municipal governing body may enact ordinances sanctioning practices, either expressly or impliedly, which the State has forbidden, or banning practices which the State has expressly or impliedly validated. So the scope of municipal authority relating to Sunday observance must be appraised in the light of any preemption of the field by the paramount sovereignty.
The State has issued its manifesto against all worldly employment or business not identifiable as works of necessity *212and charity, except those endeavors described above and except those which are placed specifically within the control of the electorate. Enumeration of the exclusions, in my judgment, is conclusive against the existence of any others. The statute and the exceptions constitute an affirmation of state policy wholly beyond the province of the local agencies of government to set at naught or vary or modify in its essential attributes.
The record in this case shows beyond question that there were and are non-charity and non-necessity businesses being conducted in the village on Sunday other than the ones outlawed by the ordinance. Equally plain is the fact that the board of trustees was aware of their existence and that the majority of the trustees intended to approve and permit their continuance. The validity of such local fiats cannot be gauged in a vacuum. A just determination can be arrived at only through a knowledge and an understanding of the realities with which they are surrounded. Thus, in situations like the persent one, even though some existing business endeavors are not proscribed expressly in the ordinance, the effect, so far as the local authority is concerned, is impliedly to grant them permission to operate in violation of the state statute. And the imprimatur thus implied is of more profound significance now than in earlier times because of the failure of the state statute to specify any penalty or sanction to be imposed in the event of its violation.
The Legislature has established the public policy with respect to Sunday closing and has defined the permissible departures therefrom. The municipalities have no alternative but to conform. They cannot create other exceptions either expressly or by implication.
In the present state of affairs, to me the view is inescapable that the function of the judicial branch of the government is to enforce the legislative will and to invalidate the village ordinance.
Much stress is laid by the village on Sherman v. City of Paterson, 82 N. J. L. 345 (Sup. Ct. 1912), and like cases, as support for this ordinance. To the extent that such *213cases may be said to approve municipal action in singling ont some business for closing on Sunday and of allowing others (not works of necessity or charity or within some other exception for which provision is made) to remain open, either by express language or by implication, as by the adoption of a laissez faire attitude toward them, in my judgment they, too, fly in the face of the controlling legislative will and should be overruled.
In our own discussion of the matter, the argument was advanced that even in the absence of a local general Sunday closing ordinance, and without regard to the state statute on the subject, a municipality may in the exercise of its general police power ban the operation of a single business on Sunday. For example, the suggestion was made that if an individual enterprise created a particular and unique disturbance or traffic hazard on Sunday, it might be made the object of a formal prohibitory edict on that day. Cf. Gundaker Central Motors v. Gassert, supra. Whatever may be the legal merit of such a contention (and it is not necessary to discuss it at this time), the record here fails to bring to our attention any such factual setting associated with plaintiff’s business. No such proof was adduced at the hearing in the Law Division. Mere general reference to complaints, without more, is not sufficient. Moreover, the opinion of Judge (now Chief Justice) Weintraub in the Law Division says:
“Defendant through its counsel disclaims any purpose other than the assurance of a compulsory day of rest * *
And:
“It should be noted that no effort is made to sustain the ordinance as to the plaintiff on the theory that its operations constitute a nuisance * *
Further, in this court no contention is offered by the village that the ordinance should be sustained against plaintiff’s washmobile business alone on the ground that it constitutes such a particular or unique nuisance or hazard, traffic or otherwise, as to warrant isolated treatment.
*214Under the circumstances, consideration of the proposed issue is purely hypothetical; it is not ripe for determination at this time.