(dissenting).
“ ‘When I use a word,’ Humpty Dumpty said, ‘it means just what I choose it to mean, neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master— that’s all.’ ” Lewis Carroll, Alice in Wonderland and Through the ■Loohing Glass (Grosset & Dunlap, 1946) pp. 239, 240.
My colleagues of the majority have outdone Humpty Dumpty. By a process of judicial legerdemain, they have caused words in L. 1959, c. 119 (N. J. S. 2A :171-5.8 et seq.) to disappear entirely. Having accomplished that feat, they then proceeded, by flicking a magical super-legislative wand, to repeal the basic Sunday Closing Law, N. J. S. 2A: 171-1, 2 and 6-12, whose existence, in substantially similar form, traces back in Hew Jersey to 1675. During the intervening years—almost 300—that legislation, although revised to some extent in more recent times, has survived many direct attacks and attempts at repeal. In the pursuit *238of what it conceived to be its public duty, the Legislature, to which the lawmaking power has been assigned under the Constitution, has always rejected those efforts. Now comes our court with a declaration that the Legislature did indirectly and by implication what it has refused to do directly over all those years. I do not have the slightest doubt that the decision constitutes a clear usurpation of the authority of that body. Nor do I doubt that of all the persons interested in this proceeding, the members of the Legislature will be the most astonished upon learning that they intended to repeal and did repeal the basic statute by supplementing it and by providing an additional remedy in aid of its enforcement.
But there is more than this. As the effect of the magic further diffuses itself, as Alice said in Wonderland, things get “curiouser and curiouser.” With the adjudged repeal of the basic statute, the new enactment, L. 1959, c. 119, which was expressly called a “Sunday Closing Law” by the Legislature, has been metamorphosed into a Sunday opening law. The old statute is now out of existence. Every phase of commercial and industrial activity may be engaged in on Sunday without legal restraint, excepting only the sale of the five items banned in the 1959 act, i. e., clothing or wearing apparel, building and lumber supply materials, furniture, household and office furnishings and appliances.And, in the counties where there was no referendum or the restriction was voted down, presumably the court’s intention is that no limitation at all exists any longer.
It may be useful at this point to note specifically that the 1959 measure does not cover the manufacturing and construction industries, in which 46.9% of the New Jersey labor force is employed. See, FlinJc and Others, The Economy of New Jersey, A Report Prepared for the Department of Conservation and Economic Development of the State of New Jersey (1958) 139. It does not include the 10.2% who work in the service industries; nor does it affect all of the 17.8% of New Jersey labor which is *239employed in wholesale and retail trade. It omits many kinds of retail stores engaged in the sale of a multitude of items now freed for Sunday disposition. The Statistical Abstract of the United States (1958), Bureau of the Census, Washington, D. 0., pp. 836, 837, reveals that in the entire United States less than half of those employed in retail establishments work in clothing, building materials, furniture, and appliance stores—the only ones within the statutory category. Thus, it may be estimated that only approximately 8.9% of the New Jersey labor force are subjected to the Sunday ban. And on recalling that the referendum as to whether the 1959 act should apply in a particular county appeared on the ballot in only 15 out of our 21 counties, and that it failed of adoption in three of them, it becomes obvious that the percentage of workers affected is even less than 8.9%. Consequently, the prescribed day of rest is provided for these relatively few workers because their employers cannot sell articles in the five categories specified. No one disputes that prior to 1959 there were violations of the long-existing Sunday Closing Law and that enforcement officials closed their eyes to them. Nor can it be denied that in the past few years there has been an upsurge in Sunday business activities. It is equally plain that the vast majority of citizens respected and observed the law and took advantage of the day as one of rest and relaxation. To open the floodgates for business activity as this court has done under the guise of enforcement of an implied legislative will reduces all conceptions of Sunday as a day of rest to a mere shadow.
The history of Sunday closing regulation appears in the Chief Justice’s opinion and need not be repeated in detail here. However, some additional comments seem necessary. As noted there, the first comprehensive legislation after the Bevolution was enacted in 1798. Paterson’s Laws (1800) 329, et seq. It expressly repealed all prior laws on the subject. Section 21. A few amendments were adopted thereafter down to 1919 when Justice Minturn of the former *240Supreme Court delivered an address suggesting changes. None was made. The 1926 Commission referred to in the opinion of the Chief Justice proposed changes, and bills were introduced to accomplish them. None passed. The revisors of the entire body of statutory law of the State in 1937 preserved the existing act with but a few changes in wording. The Legislature approved. B. S. 2:207-1 to 30. The Advisory Committee on Revision of Statutes created by the lawmakers in 1951 to revise Title 2 of the Revised Statutes, recommended that chapter 207 be deleted entirely, saying, “Repeal, obsolete.” Revision of Title 2, Tentative Draft, Part I. Again the Legislature declined. Chapter 207 was rewritten in much more concise form and incorporated as N. J. S. 2iL:171-l et seq. Section 1 said:
“No worldly employment or business, except works of necessity and charity, shall be performed or practiced by any person within this state on the Christian Sabbath, or first day of the week, commonly called and hereinafter designated as Sunday.”
The penalty clause was not re-enacted.
Subsequent efforts to bring about changes met with no success until the adoption of chapter 138, L. 1958. That enactment prohibited the very same categories of sales as does the act under consideration. Its application being limited to 18 of the 21 counties, it was declared unconstitutional. Sarner v. Union Tp., 55 N. J. Super. 523 (Law Div. 1959). The format of that statute was identical with the present one except for exclusion of the three counties and the addition in chapter 119, L. 1959, of the referendum provisions. It too was a “supplement” to the old act and it too was required to be “construed as an additional remedy.”
The, above historical material is admittedly somewhat repetitive of the majority opinion. But the emphasis is different. The purpose is to point to the profound reluctance on the part of the Legislature to wipe out the basic Sunday prohibition against worldly employment. It is also designed to bring to attention that no public problem could *241have been more in the consciousness of the lawmakers in recent years than this one. Elaborate hearings were held at Trenton and protagonists of a wide variety of views were heard. To say that in such an atmosphere in 1958 and 1959, if the Legislature had formulated an intent to repeal the old law, it would have left the matter to implication rather than express language, is unrealistic to say the least.
Let us consider then the startling conclusion of the majority. This must be done against a background of fundamental tenets of statutory construction. The sole constitutional function of the judicial branch of the government in this area is to interpret in accordance with the plain language of a statute and not some supposed unexpressed intention. There is no authority to legislate. Dacunzo v. Edgye, 19 N. J. 443, 451 (1955). We are required to assume that the Legislature knows the existing statutory law and the judicial decisions interpreting it. When new regulations are adopted, the Legislature is presumed to have envisioned the whole body of law and to have acted with regard to it. Consequently, a cardinal doctrine is that if repeal of an existing statute is intended, the lawmakers should expressly say so rather than leave that result to implication. Eor that reason, it has come to be traditional to refuse to recognize an implied repeal of an earlier law by a later one unless the intention of the Legislature to produce that result appears beyond a reasonable doubt. And it may be added that the rule has special application to public statutes of long standing. State v. Federanko, 26 N. J. 119 (1958) ; Swede v. City of Clifton, 22 N. J. 303 (1956); Asbury Park Press v. City of Asbury Park, 19 N. J. 183 (1955); Yarn v. City of Des Moines, 243 Iowa 991, 54 N. W. 2d 439 (1952); 1 Sutherland, Statutory Construction (3d ed. 1943), §§ 2012, 2015, 2033; 50 Am. Jur., Statutes, § 546.
After referring to the establishment of penalties for sale of the enumerated items, the title of chapter 119, L. 1959, specifically says “* * * and supplementing chapter 171 of Title 2A of the Neto Jersey Statutes." (Emphasis added.) *242A supplement to an act by its very character is a complement to its antecedent—the original act. Edwards v. Stein, 94 N. J. Eq. 251, 258 (Ch. 1922). As far back as 1892 this was recognized. According to Chief Justice Beasley:
“Supplements to laws, from tlieir very nature, must, either by expression or implication, refer to their antecedents, to whose scheme they are designed as complements; and all legislation, since the establishment of the amended constitution of the state, has been constructed on this theory.” Bradley & Currier Co. v. Loving, 54 N. J. L. 227, 228-229 (Sup. Ct. 1892).
It would be .idle to suggest that the legislators who voted for the law under discussion were not completely aware of the connotation of “supplement” when they used it. There is nothing in the language of the entire chapter to demonstrate beyond reasonable doubt that they used it as an incident of an intention to repeal the old Sunday law by implication.
If there is any lingering doubt on the subject, other provisions eradicate it. Section 4 (N. J. S. 2A: 171-5.11) says:
“This act shall be construed as an additional remedy to secure proper Sunday observance and the directors, officers, managers, agents or employees of corporations shall he personally liable for the penalties hereinabove provided.” (Emphasis added)
No one needs assistance as to the significance of “an additional remedy.” Note that the Legislature did not simply say: “This Act shall be an additional remedy.” It told the Judiciary, whose duty it would be under our tripartite system of government to interpret the act, to construe it as an additional remedy. But the effect of the majority opinion is to empty all those words of any significant content, and hold them to be consistent with a legislative intent to repeal the act to which they were to constitute an addition.
What did the Legislature intend to include as an addition or a complement? It was aware, of course, that the 1951 revision of the old act failed to include specific penalties *243in aid of enforcement. Putting aside for a moment the question whether absence of a penalty clause renders enforcement impossible, as the majority seem to suggest, the significance of the inclusion of “an additional remedy” in 1959 is brought into sharp focus. The lawmakers, for reasons with which the Judiciary cannot concern itself, intended to impose an additional specific penalty on merchants who sold any of the five designated items on Sunday. Such violators are declared to be disorderly persons and subject to a fine of $25 for the first offense; not less than $25 nor more than $100 for the second; not less than $100 nor more than $200 or, in the discretion of the court, 30 days in jail nor both, for the third; and for the fourth or each subsequent offense, not less than $200 nor more than $500 or, in the discretion of the court, not less than 30 days nor more than six months in jail or both. Each single sale to any one customer is constituted a separate and distinct violation. And “in addition” to the stated penalties upon any four convictions the premises upon which the violation occurred must be deemed a nuisance. N. J. S. 2A :171-5.8, 5.9. The opinion of the majority says that these penalties are not an additional remedy because the 1951 revision is a “toothless declaration” and so no remedy existed for violation of that act. Here again the court puts aside basic principles although the Legislature obviously was aware of them. Long prior to 1951 frequent violators of the Sunday Closing Law were indictable and punishable as operators of a disorderly house. Our former Supreme Court so held in State v. Reade, 98 N. J. L. 596 (Sup. Ct. 1923). Of particular interest is the statement of the court there that such a conviction may be had even though a single violation would not constitute that crime. Over 60 years earlier, the same ruling had been made. State v. Williams, 30 N. J. L. 102 (Sup. Ct. 1862). The Williams case was described in 1880 by the Court of Errors and Appeals as representing “the unchallenged law of this State.” See, Meyer v. State, 42 N. J. L. 145, 157 (E. & A. 1880). My research shows that the rule *244still occupies the same pristine status, unless the present statement in the Chief Justice’s opinion that “We cannot find a reasonable basis for the disorderly house approach,” is meant to impliedly overrule these old precedents. Apparently in earlier days no doubts were held on the subject at the enforcement level, witness Judge Depue’s charge to the Grand Jury of Essex County in 1887 in a situation involving the sale of liquor on Sunday. He said, among other things:
“A disorderly house is defined in law to be a place where illegal practices are habitually carried on. By force of Judicial decisions in this state, a place comes within the category of a disorderly house by reason of the habitual violations of law, although such habitual violations of the law are simply infractions of the laws regulating the sale of liquor, and although indictments will not lie for the specific acts of selling.” 10 N. J. L. J. 116, 118 (O. & T. 1887).
My colleagues suggest that the Legislature would be startled to learn that Sunday selling might be prosecuted by such an indictment with its possible statutory punishment of a maximum of three years imprisonment and $1,000 fine. I doubt it. Legislators are presumed to know the law and the availability of the remedy of disorderly house prosecution was specifically commented on in Justice Heher’s dissent in the recent Sunday closing ease in this court, Auto-Rite Supply Co. v. Woodbridge Twp., 25 N. J. 188, 201 (1957), decided just 14 months prior to the adoption of L. 1958, c. 138, the substantial prototype of the present 1959 Act. Further, upon conviction under this type of indictment, the sentencing judge is invested with even more discretion than he is given under the 1959 law. He may suspend sentence, place the offender on probation, or fine him from $1 to $1,000, or he may impose a jail term of one day to three years. On the other hand, the new supplement fixes a mandatory minimum fine graduating upward with repetition of the offense, although a jail sentence is discretionary.
Moreover, criminal proceedings are maintainable, against persistent Sunday sellers under N. J. S. 2A :130-1. Under *245that statute, “Every building or place where the law is habitually violated is a nuisance.” In State v. Berman, 120 N. J. L. 381 (Sup. Ct. 1938), the Williams case, supra, was cited as authority to support a conviction thereunder.
Again, the plain indication from Mayor, etc., of Alpine Borough v. Brewster, 7 N. J. 42 (1951), is that the civil remedy of injunction is also available to proper parties to halt repeated infractions of the basic 1951 act.
As the result of these cases and the statute referred to, it is inconceivable that when the expression “additional remedy” was written into the 1959 act, the Legislature did not mean it or that it was part of an unexpressed intention to repeal the 1951 act. It is likewise impossible to conceive of that term as being consistent with an implied intention to repeal the latter statute.
Additional persuasive proof against the finding of implied repeal is easily discoverable. Section 5, N. J. S. 2A :171-5.12 provides that the 1959 act shall not become operative in any county until the voters thereof adopt it by referendum. Thus, if the question does not go on a county ballot or if it is defeated by the people after being placed thereon, the specific mandate of the Legislature is that the statutory ban on Sunday sales of the five items is not operative. Section 8 (N. J. S. 2A:171-5.15) specifically ordains that “if a majority of all such votes shall be cast against the question, the provisions of this act shall remain inoperative in such county.” Can it possibly be said that a statute which, by the solemn and express order of the lawmakers, is not applicable at the present time in nine counties of the State was intended by them to impliedly repeal the underlying Sunday Closing Law?
It cannot be overlooked that the Legislature had strong reason to believe that additional sanctions for particular violations were proper, that the new act would not operate as an implied repealer of the old one, and that if repeal was desired, express language to that effect ought to be employed. The precise question was raised in West Orange v. *246Jordan Corp., 52 N. J. Super. 533 (Cty. Ct. 1958). There the argument was advanced that the 1958 act, which it must be remembered took effect immediately and was not contingent upon a favorable referendum result, was intended to impliedly repeal the basic Sunday law. The contention was rejected, the court saying:
“A comparison of the two statutes leads to the conclusion that this argument is without merit. Chapter 138 of the Laws of 1958 states specifically in its title that it is a supplement to chapter 171 of Title 2A of the New Jersey Statutes. It inserts in the latter statute an entirely new section, which bears the number 5.1. The prior statute had no section thus numbered. Further, the new act does not in any way limit or circumscribe the provisions of chapter 171 of Title 2A, but merely provides penalties if sales are made on Sunday of those items of merchandise specifically enumerated in the 1958 act. N. J. S. 2A :171-1 et seq., contains no penalty provisions and perhaps the Legislature, in dealing with the items enumerated in L. 1958, c. 138, believed that these items required special treatment and therefore imposed specific penalties for the sale of such items on Sunday. It has done this with respect to other items of merchandise; for example, the sale of new and used automobiles. See, N. J. S. 2A :171-1.1; Gundaker Central Motors v. Gassert, 23 N. J. 71 (1956), appeal denied 354 U. S. 933, 77 S. Ct. 1397, 1 L. Ed. 2d 1533. The most that can be said is that the Legislature decided specifically to interdict the sale of certain items of merchandise but not to change public policy with respect to the sale of other merchandise. The enumerating of specific items in the statute should not be construed as exempting from the provisions of the Sunday closing statute all other business, in the absence of some clear legislative expression to that effect. There is no such intent apparent in the statute.” 52 N. J. Super, at page 539.
True, the quotation is drawn from the opinion of the trial court from which no appeal was taken. It may not be amiss to say, however, that during the short tenure of that judge, he proved himself to be worthy of the bench. Shortly thereafter the same court again ruled against the claim of implied repeal. West Orange v. Carr’s Department Store, 53 N. J. Super. 237, 248 (Cty. Ct. 1958). These two cases were decided a month apart, the second one about six months prior to the adoption of chapter 119. It is extremely unlikely that the members of the Legislature were unaware *247of these holdings that the general Sunday sales ban was not abrogated by their latest enactment.
Eurther in this connection, when chapter 138 of the Laws of 1958 was signed by the Governor, he not only expressed some doubts as to its constitutionality (which subsequently proved to be well taken) but he also said:
“This bill was enacted without any indication what effect it shall have on existing laws on the same subject. In the course of amendment, it would be most desirable to clarify this phase of the matter.” Governor’s Press Release, Aug. 4, 1958, p. 4.
The judicial declaration of unconstitutionality followed (Sarner v. Union Tp., supra), and 40 days later c. 119, L. 1959 was enacted. In the face of the Governor’s comments, if the legislators had any intention of repealing the old Sunday law they certainly would have expressly said so in the new act and not have left the matter to implication.
All of the considerations expressed above inexorably lead to the conclusion that the implied repeal found by the majority was not intended by the Legislature. Surely it cannot be said that in spite of all of the evidence to the contrary, such a repeal is demonstrated beyond a reasonable doubt. In my judgment, therefore, the general Sunday closing regulation, N. J. S. 2A :171-1, revision of 1951, was not affected by the 1959 law and remains in full force and vigor. Quite apparently the legislators were not thinking in terms of repeal, because four days before adoption of chapter 119 they passed chapter 131. The latter act specifically amended the basic Sunday observance law, 2A :171-2, to remove sale of perishable agricultural and horticultural products from the ban. Both bills were submitted to the Governor for signature. Chapter 119 was signed by him on June 17 and chapter 131 on June 18, without further comment as to any possible irreconcilable conflict between chapter 119 and the long-standing Sunday statute. No one would suggest that if implied repeal of N. J. S. 2A :171~1 et seq., were in contemplation, there would *248have been any possible need to expressly authorize sale of the products mentioned. Adoption of chapter 119 would remove all obstacles to their sale.
In reaching for the conclusion announced, the majority argues that irreconcilable policy conflicts appear between 2A :171-1 et seq. and the 1959 legislative expression. Those conflicts are more chimerical than real. The policy of the old act was and is to provide a day of rest on Sunday and to inveigh against all invasions of it except works of necessity and charity, sale of perishable agricultural and horticultural products (by virtue of the 1959 amendment) and certain other articles, if approved by local referendum. The majority opinion strains itself to demonstrate such an utter repugnancy between that policy and the aim of chapter 119 as to leave but one result, i. e., that the Legislature intended repeal of the former by the latter. But their analysis in the ultimate led them to the conclusion that the purpose of chapter 119 in banning the sale of the five kinds of goods is to protect Sunday as a day of rest. Thus the statutes have a common, not a dissimilar, objective. It follows that the only difference is the addition of specific penalties which the Legislature felt should be imposed for the violations described.
As a closing word on this phase of the matter, mention must be made of another significant circumstance. The title page of the majority opinion lists the names of the numerous able counsel who appeared in various capacities in the proceedings. All of them furnished us with exhaustive briefs. Hot a single one contended that chapter 119 had impliedly repealed the long-standing Sunday statute. In fact, the attorneys who dealt with the question argued without qualification that no implied repeal existed.
If the 1951 basic Sunday law has not been impliedly repealed, what is the status of c. 119, L. 1959, under discussion? It is unconstitutional and the majority opinion required little space to express that conclusion. Such result had to be reached because to select just these five retailers *249and to subject them to penalties different from all other sellers of goods is clearly discriminatory and offends against the requirement of our organic charter for equal protection of the law. Unfortunately, my colleagues then turned their determination of unconstitutionality into a springboard for a declaration that the Legislature had an unexpressed intention to repeal the statute it was undertaking to complement. That result is bizarre because the proper explanation for the legislative difficulty and of the result that should follow, in my judgment, is very simple. The legislators just made a mistake. They believed it would be lawful to single out the dealers in question for additional and more specific penalties than those which, as has been indicated above, could be meted out to any other Sunday observance violator. But the cure for such a mistake is in the Legislature. That body alone has the constitutional power to correct it. The judicial branch of the government should not trespass in that area. It would be unsafe in our democratic society to permit the Judiciary, removed as it is from the electorate, to declare the repeal of a statute even though the judges might think it was unpopular, or not being enforced in some areas or because they might believe it to be unsuitable to existing economic conditions. 1 Sutherland, supra, § 2034. There is no tragedy in the present legislative error. Neither branch of government makes any pretense of infallibility and our co-equal should be allowed to decide upon the form the correction of its own errors should take.
II.
In view of the agreement by the entire court that if the basic statute is not impliedly repealed, chapter 119, L. 1959, is invalid because the classification is unconstitutional on its face, no purpose will be served in further discussion of that subject. At this juncture, therefore, the case should end; a declaration of unconstitutionality should be made and the judgment of the trial court should be reversed.
*250III.
The majority having validated an invalid statute by invalidating a valid one, it remains for the dissent to discuss whether the survivor of this alchemy, chapter 119 standing alone, is constitutional. The specific question that has emerged is: does chapter 119, considered in isolation, offend the equal protection clauses of the Federal and State Constitutions ?
The opinion of the members of the majority accepts the motivating factor of chapter 119 as a desire to protect Sunday as a day of rest. Of course, if the basic statute has been impliedly repealed, for the first time in almost 300 years, New Jersey no longer has any express general legislative provision in aid of Sunday withdrawal from worldly employment. A day of rest is ordered only for those who are in the business of selling, or who are employed to sell, the banned goods, and then only if the enterprise is limited to dealing in them. Thus, the idea that chapter 119 is supportable as designed to protect a day of rest when it only partly closes the places which sell the specified items but permits the sale of a multitude of other articles there, and when it opens up all other types of commercial activity, contains within itself its own negation. To say that people who are now released for mundane pursuits are going to ignore their new license and seek only rest, recreation and relaxation, is sheer speculation. And to find support for discrimination against the five classes of goods in the idea that it may serve to strike at the evil of interference with Sunday tranquility where the evil is felt most, is to use gossamer threads for the purpose.
Even at the risk of laboring the point, further elaboration seems advisable. Sale of five classes of articles is prohibited: (1) clothing and wearing apparel, (2) building and lumber supply materials, (3) furniture, (4) home or business furnishings, (5) household, business or office appliances. All of these may be manufactured or processed in factories and *251elsewhere on Sunday; only sale is banned. Likewise, all of the myriad other articles may be made, advertised and sold seven days a week. A few of them may be named: drugs, cosmetics, toiletries, perfumes, hair preparations, shaving equipment and supplies, automotive supplies and accessories, jewelry, clocks and watches, luggage and leather goods, optical supplies, school and stationery supplies, books, records, musical instruments, radios for automobiles but not for homes or offices, yard goods (to make clothing, drapes, etc., which in completed form cannot be sold), power and hand tools, fuses and power cords, garden tools, paint, power mowers, antiques, tobaccos, paper and paper products, machinery, metals, scrap and waste materials, magazines and newspapers, fuel, coal, oil, logs, ice, petroleum products, office machines, restaurant supplies, all varieties of food and food products, printing equipment, rope, medical and dental supplies, beauty and barber shop supplies, laundry supplies, upholstery supplies, seeds, farm and garden supplies, birds (but not bird cages), etc. All of the service businesses may be open, gasoline stations, repair shops, laundries, auto laundries, tailor shops, etc. Supermarkets in-town and on the perimeter highways are not required to close. Every form of worldly employment may be pursued except the sale of the condemned items. Houses, apartments, factory buildings may be constructed on Sunday so long as the materials do not have to be purchased on that day. Paint may be bought, however, and used on the buildings, of course, if paint brushes are available because the sale of them is outlawed. Affidavits of plaintiff, Two Guys from Harrison, Inc., assert that thousands of items are offered for sale in their various establishments and that the banned articles represent only a small percentage of those which may legitimately be disposed of on Sunday. The problem presented by chapter 119 cannot be looked at in a vacuum. It requires very little imagination to conjure up a picture of temporary picket fences around counters and sections of these large retail establishments, closing them *252off from the Sunday buying public, with signs on them saying: “Sorry these articles cannot be sold but look across the aisle or at the many other open counters around.”
To ban sale of the five classes of goods on Sunday is virtually to grant a public license to all other forms of commercial and industrial business to operate on that day. The statute lends community sanction and status, official recognition and actual financial advantage to the multiude of enterprises which are no longer restrained on the traditional day of rest and relaxation. The majority suggest that perhaps the individual municipalities will adopt their own Sunday ordinances and thus repair the breach now created. It is a matter of common knowledge that a delegation of unrestrained control, if taken advantage of at all by local governing bodies, would result in such heterogeneous ordinances, even within a single county, that only confusion and discrimination would result. At the very best (assuming the existence of the municipal authority), it would amount to the exchange of a hope for an established fact.
Considered in terms of constitutional doctrine, I believe that chapter 119 on its face is discriminatory and void. It is entirely inconsistent with our fundamental freedoms to single out the particular five classes of goods for Sunday prohibition and to select those who sell them for discipline and restraint, while at the same time releasing the overwhelming majority of other citizens to do as they please in the field of business on Sunday. The court expressed this basic thought through Justice Burling in Auto-Rite Supply Co. v. Woodbridge Twp., supra, 25 N. J. at page 196:
“Here the substance * * * makes a sham of the declared title and pui’pose to be served. The doors of the paint and wallpaper stores are closed but lumber supplies flow freely, all supposedly, in the interest of peace and quiet, rest and relaxation of all merchants and the purchasing public alike. The mere statement of the proposition demonstrates that the Woodbridge ordinance was not designed to serve the stated objective.”
*253Elliot v. State, 29 Ariz. 389, 242 P. 340, 46 A. L. R. 284 (Sup. Ct. 1926), and Gronlund v. Salt Lake City, 113 Utah 284, 194 P. 2d 464 (Sup. Ct. 1948), are cited as examples of discriminatory regulation. Although those cases deal with arbitrary exclusions from a Sunday sales prohibition, they are analogous in principle here. They reveal clearly that in the absence of inherent differences (which are apparent to judges as reasonable men) between sales permitted and sales prohibited, and business places closed and those permitted to remain open, the classification is arbitrary and runs counter to the Constitution.
In Gronlund [113 Utah 284, 194 P. 2d 465], the ordinance made unlawful the sale of “any commodity upon the first day of the week, commonly called Sunday; excepting that foods may be sold to be eaten on the premises where sold; fruits and vegetables sold by the producer on the premises where produced; and drugs, medicines, surgical appliances; fresh milk; ice cream and soda fountain dispensations; candy and confections; bottled soft drinks; bread and bakery products; ice; gasoline and oil; tobacco and cigars; dentifrices and toiletries; newspapers and magazines; sporting equipment (but not including sports clothing) ; beer; nursery products, such as trees, shrubs, flowers, plants, and bedding plants; and parts and equipment for automobiles and other vehicles which are necessary to be installed for repair purposes on Sunday, may be sold.”
The Supreme Court of Utah pointed out that the ordinance was not a general Sunday closing law but only a limitation on mercantile pursuits in terms of certain commodities. Thus, the effect was to allow such enterprises as banks, pawnshops and beauty parlors to function on Sunday, while closing many businesses devoted to the sale of commodities. Such a discrimination between services and commodities was held to be unreasonable. The court went on to say:
“Even bearing in mind the rule that the classification upon which a Sunday closing law is based is within the discretion of the legisla*254five branch and hence will be upheld unless clearly arbitrary, it is difficult to conceive of a fair reason for some of the items excepted. It is readily apparent that some of the exceptions are clearly based on necessity. But as to others, even considering the desirability of promoting recreational activity on Sunday, no fair reason suggests itself as to why their sale should be permitted on Sunday while the sale of other commodities is prohibited. Neither sporting equipment nor nursery products are such from the standpoint of the buyer or seller that they cannot be purchased on a week day, though it is the intention of the buyer to use the equipment and plant the tree or flowers on a Sunday. Neither is likely to deteriorate over Saturday night or be depleted during Sunday. Boxing gloves and baseball bats are at least as staple as butter and bananas. The same may be said of dentifrices and toiletries, tobacco and beer. The classification being on a commodity basis, it is arbitrary to permit the sale of a can of beer on Sunday and prohibit the sale of a can of orange juice or a can of coffee.” 194 P. 2d, at page 468.
In Elliot it was said that the Legislature “[in]ay not prohibit the exercise of businesses or occupations legitimate and lawful within themselves, which do not carry inherent reasons for special discrimination, while allowing general privileges to other similar occupations.” And:
“[w]e cannot see why it is a legitimate discrimination to close groceries, shoe stores, and hardware stores, while allowing jewelers, dealers in second-hand goods, and tailoring establishments to remain open without restriction; nor does it appear on any theory we can conceive that pawnbrokers and photographers are engaged in works of necessity and charity when butchers and dealers in fruit or vegetables are not.” 242 P., at p. 342.
See also, Deese v. City of Lodi, 21 Cal. App. 2d 631, 69 P. 2d 1005 (Dist. Ct. App. 1937); Chan Sing v. City of Astoria, 79 Or. 411, 155 P. 378 (Sup. Ct. 1916).
As has been said, the result of the majority’s decision is that the State no longer has a general law designed to set aside Sunday as a day of rest and relaxation. There is now no legislative recognition of any such day. No one is required to respect a citizen’s desire to rest except so far as the criminal laws may impose such requirement for every day of the week. Chapter 119, the only remaining legislative regulation, is simply a prohibition against the sale of *255certain commodities on that day. No place of business is required to close down, even the ones normally dealing in the-banned goods; everyone else may manufacture, sell and service at will. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities. Shelley v. Kraemer, 334 U. S. 1, 22, 68 S. Ct. 836, 92 L. Ed. 1161, 3 A. L. R. 2d 441 (1948). There is no issue present in this case which calls for trial. Chapter 119 is so palpably arbitrary and discriminatory that it must be condemned as unconstitutional on the record now before us.
IY.
To conclude, my view is that the basic Sunday closing statute, N. J. S. 2A:171-1 et seq., is the only valid law now existing. If that regulation is considered too harsh in some aspects of its present form, no insuperable obstacle exists to the drafting of another which would preserve underlying concepts of rest, relaxation and recreation, and at the same time give reasonable and fair recognition to the means of their achievement. See, e. g., Ex parte Sumida, 177 Cal. 388, 170 P. 823 (Sup. Ct. 1918); State v. Towery, 239 N. C. 274, 79 S. E. 2d 513 (Sup. Ct. 1954), appeal dismissed 347 U. S. 925, 74 S. Ct. 532, 98 L. Ed. 1079 (1954).
Accordingly, I would reverse the judgment of the Law Division and, until the Legislature acts again, leave the execution of the Sunday law in the hands of local and county enforcement officers. Mr Justice Schettino authorizes the statement that he joins in this dissent.
Burling, J., concurring in result.
For affirmance in part and reversal in part—Chief Justice Weintraub, and Justices Burling, Proctor and Hall—4.
For reversal—Justices Francis and Schettino—2.