Clark's Charlotte, Inc. v. Hunter

134 S.E.2d 364, 261 N.C. 222, 1964 N.C. LEXIS 450

• Court: Supreme Court of North Carolina
• Decided: January 31, 1964
• Docket: 252
• Status: Published

Opinion

Parker, J.

Plaintiffs have not excepted to any of the findings of fact made by Judge Brock, and they have not excepted to his first conclusion of law. They except to his second, third and fourth conclusions of law and to the judgment and assign them as error.

The challenged ordinance as amended has a general provision stating that it shall be unlawful to operate or carry on any business on Sunday in the city of Charlotte, with a second provision exempting certain specified types of business from the operation of the first provision and permitting them to remain open on Sunday, with a proviso that sporting events, etc., before 1:00 p.m. on Sunday where a fee is charged for admission are not exempt. Judge Brock’s first conclusion of law, to which there is no exception in the record, is correct. This is one of the three principal types of Sunday closing legislation or ordinances. Humphrey Chevrolet v. Evanston, 7 Ill. 2d 402, 131 N.E. 2d 70, 57 A.L.R. 2d 969.

Plaintiffs here, like the defendant in S. v. McGee, 237 N.C. 633, 75 S.E. 2d 783, and like the defendant in S. v. Towery, 239 N.C. 274, 79 S.E. 2d 513, appeal dismissed 347 U.S. 925, 98 L. Ed. 1079, do not contend that the challenged ordinance as amended discriminates against them insofar as it applies to any other person or persons engaged in the operation of a similar department store or stores or similarly situated. One of their principal grounds of attack upon the ordinance as amended is that it is discriminatory, arbitrary and unreasonable, denies them the equal protection of the law, and deprives them of their property without due process of law, all in violation of their rights under the Fourteenth Amendment to the United States Constitution and under Article I, section 17, of the North Carolina Constitution, because it permits drug stores, food stores, restaurants, and other enumerated businesses to stay open and sell on Sunday some of the same goods that they as operators of large department stores sell, and denies them the privilege of opening their department stores and selling goods on Sunday. They rely upon Elliott v. State, 29 Ariz. 389, 242 P. 340, 46 A.L.R. 284; Mt. Vernon v. Julian, 369 Ill. 447, 17 N.E. 2d 52, 119 A.L.R. 747, and similar cases.

As long ago as A.D. 321 Constantine the Great passed an edict commanding all judges and inhabitants of cities to rest on the venerable day of the sun. At an early date Sunday statutes were enacted in England, and 29 Charles II c. 7 has been made the basis of similar legislation in many of the states. A few such statutes were enacted in what is now the United States during colonial days. The observance of Sunday is recognized by constitutions and legislative enactments, both state and federal, and it is said Sunday prohibitory laws have been enacted in all the states. 83 C.J.S., Sunday, sec. 3.

The general rule is that the enactment of Sunday regulations is a legitimate exercise of the police power, and that the classification on which a Sunday law is based is within the discretion of the legislative branch of the government or within the discretion of the governing body of a municipality clothed with power to enact and enforce ordinances for the observance of Sunday, and will be upheld, provided the classification is founded upon reasonable distinctions, affects all persons similarly situated or engaged in the same business without discrimination, and has some reasonable relation to the public peace, welfare and safety. S. v. McGee, supra; S. v. Trantham, 230 N.C. 641, 55 S.E. 2d 198; 83 C.J.S., Sunday, sec. 3, c and d; Anno. 119 A.L.R. p. 752.

“While the statute [a statute prohibiting public selling on Sunday except in enumerated cases] may not be perfectly symmetrical in'its pattern of exclusions and inclusions, the equal protection of the laws does not require a Legislature to achieve ‘abstract symmetry,’ Patsone v. Commonwealth of Pennsylvania, 232 U.S. 138, 144, 34 S. Ct. 281, 58 L. Ed. 539, or to classify with ‘mathematical nicety.’ ” People v. Friedman, 302 N.Y. 75, 96 N.E. 2d 184. This principle of law also is applicable to a municipal ordinance prohibiting public selling on Sunday, except in enumerated cases, when the governing body of the municipality is clothed with the power to enact and enforce ordinances for the observance of Sunday.

In McGowan v. Maryland, 366 U.S. 420, 6 L. Ed. 2d 393, which was a case concerning the constitutional validity of certain Maryland criminal statutes commonly known as Sunday Closing Laws or Sunday Blue Laws, the Court said:

“Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”

There are a line of cases, such as Mt. Vernon v. Julian (Ill.), supra, which is reported and annotated in 119 A.L.R. 747 and which is cited in the annotation in 57 A.L.R. 2d 987, upon which plaintiffs rely, that take the position because a drug store might sell some of these things that the grocers or these others sell then the Act is discriminatory and unconstitutional. This Court by the present Chief Justice has answered the arguments of the Mt. Vernon v. Julian (III.) case, and others that hold to the same effect, in S. v. Towery, supra.

In this case Towery was tried and convicted in the superior court, on appeal from the municipal court of the city of High Point, on a warrant charging him, the operator of a curb market, with keeping his curb market open on Sunday for the purpose of selling his goods, and with selling on Sunday tomatoes, peaches and toilet paper, in violation of a city ordinance. The city ordinance prohibited the operation of businesses on Sunday and exempted from its operation hotels, restaurants, delicatessen and sandwich shops, and the like “furnishing meals and selling bread, cooked or prepared meats incidental to the operation of such business”; ice cream or confectionery stores “furnishing ice cream, cigars, tobacco, nuts and soft drinks only”; cigar stands and newstands “furnishing cigars, tobacco, candies, nuts, newspapers, magazines and soft drinks only”; drug stores “furnishing medical or surgical supplies, cigars, tobacco, ice cream, candies, nuts, soft drinks, newspapers and magazines”; and certain others. (Italics ours.) Defendant operated a curb market and, according to his own testimony, sold “practically everything that is sold in a general grocery store or a super market.”

The present Chief Justice writing for the Court the opinion in the Towery case said:

“It would seem that the reasoning of the Illinois Court [Mt. Vernon v. Julian] ignores the right of a municipality in adopting a Sunday closing ordinance to discriminate as between classes, S. v. Trantham, 230 N.C. 641, 55 S.E. 2d 198, but instead makes the question of competition or the right generally to conduct a business the determinative factor.

* # *

“The defendant here, like the defendant in S. v. McGee, supra [237 N.C. 633, 75 S.E. 2d 783], does not claim that the ordinance discriminates against him in so far as it applies to any other person or persons similarly situated. He simply claims that the business establishments permitted to remain open on Sunday sell certain articles of merchandise similar to those which he sells, therefore, he says they are his competitors. He falls into error in undertaking to make competition as between classes the test rather than discrimination within a class.

“Moreover, it will be noted that in the ordinance under consideration, the exemption as to cafes, delicatessens and sandwich shops is limited to those furnishing meals and selling bread, cooked or prepared meats incidental to the operation of such business. Likewise, the exemption extends to (1) ‘ice cream or confectionery stores, furnishing icq cream, cigars, tobacco, nuts and soft drinks only;’ and (2) ‘cigar stands and newsstands furnishing cigars, tobacco, candies, nuts, newspapers, magazines and soft drinks only.’ (Italics ours.)

“The defendant, according to his own testimony, operates a curb market and sells ‘practically everything that is sold in a general grocery store or super market.’ Therefore, he has shown no arbitrary or unreasonable exercise of the police power in the classification and selection of businesses to be closed on Sunday.

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“After a careful consideration of the question raised on this record, and the authorities bearing thereon, we are of the opinion that the ordinance in so far as it has been challenged on this appeal, is constitutional and, therefore, the verdict below must be upheld.”

The Court in the Towery case relies upon S. v. Medlin, 170 N.C. 682, 86 S.E. 597, in which case the Court said: “This ordinance, which prohibits keeping open stores and other places of business for the purpose of buying or selling, except ice, drugs and medicines, and permits the drug stores to sell soft drinks and tobacco for a limited time in the morning and afternoon, as a convenience to public customs, is not an unreasonable exercise of the police power.” In the Towery case it is stated: “This decision has been followed and cited with approval in S. v. Davis, 171 N.C. 809, 89 S.E. 40; S. v. Burbage, 172 N.C. 876, 89 S.E. 795; Lawrence v. Nissen, 173 N.C. 359, 91 S.E. 1036; S. v. Kirkpatrick, 179 N.C. 747, 103 S.E. 65; S. v. Weddington, 188 N.C. 643, 125 S.E. 257, 37 A.L.R. 573, and S. v. McGee, supra [237 N.C. 633, 75 S.E. 2d 783].”

In Kirk v. Olgiati, 203 Tenn. 1, 308 S.W. 2d 471 (6 Dec. 1957), the Court held that an ordinance of the city of Chattanooga requiring Sunday closing of general merchandise, department, hardware, jewelry, furniture and grocery stores, super markets, meat markets and similar establishments is not discriminatory, arbitrary and an unreasonable exercise of the police power on any theory that drug stores, curb markets, 'filling stations and similar establishments selling same goods as grocery stores are permitted to stay open. The Supreme Court of Tennessee in this case relies upon our case of S. v. Towery, supra, as a principal authority for its decision.

According to the unchallenged findings of fact, this appears as to the business of the plaintiffs here: They operate large department stores, and the sale of “soft goods” accounts for a major portion of their sales volume. The term “soft goods” means clothing of all sorts, towels, sheets, pillowcases, fabrics, and other products made from fabrics of various kinds. One or both have a department which sells medical and surgical supplies, but which does not have a pharmacist and does not fill prescriptions or sell so-called ethical drugs. One or both have a department or departments which sell cookies, candies, chewing gum, beverages, tobacco products, books, newspapers, dairy products, and bakery products. Each operates in its store a restaurant. One or both have in their store coin-operated vending machines. In our opinion, and we so hold, the operation of large department stores by plaintiffs here, the major portion of whose sales volume comes from the sale of “soft goods,” although they sell many other goods as specified in the findings of fact, is an entirely different business from “drug stores furnishing medical or surgical supplies, foodstuffs, beverages, tobacco products, books, newspapers and magazines pn^y”; and from “food stores furnishing foodstuffs, beverages, tobacco products, books, newspapers and magazines only”; (Italics ours.) and from restaurants; and from any of the other businesses enumerated in the challenged ordinance as amended, and may be placed in a different classification, and the business of the plaintiffs as the operators of large department stores reasonably justifies their being placed in a different classification from the businesses permitted to be open and to sell goods on Sunday in the challenged ordinance as amended. In consequence, plaintiffs have shown no discriminatory, arbitrary, or unreasonable exercise of the police power by the governing body of the city of Charlotte in the classification and selection of businesses, in the ordinance as amended here, to be closed or permitted to be open on Sunday, and such classification does not deny them the equal protection of the law, and does not deprive them of their property without due process of law, in violation of their rights under the Fourteenth Amendment to the United States Constitution and under Article I, section 17, of the North Carolina Constitution.

Plaintiffs further contend that the challenged ordinance as amended is void for vagueness in that it furnishes no standards for enforcement and gives no definition so that one can know a crime is being committed. The purpose of the “void for vagueness” doctrine is to warn people of the criminal consequences of certain conduct. The ordinance of the city of Charlotte challenged in the case of S. v. McGee, supra, is in many ways strikingly similar to the challenged ordinance as amended here, and we upheld the constitutionality of the ordinance challenged in the McGee case. The challenged ordinance in S. v. Towery, supra, is in many respects similar to the challenged ordinance as amended here, and we upheld the constitutionality of that ordinance. In our opinion the challenged ordinance as amended expresses the conduct prohibited clearly enough so that a reasonably intelligent person will know what is forbidden and, consequently, is not unconstitutionally void on the ground of uncertainty and vagueness. S. v. Hales, 256 N.C. 27, 122 S.E. 2d 768; McGowan v. Maryland, supra; University of Kansas Law Review, vol. 10, 1961-62, p. 444. It seems from the unchallenged sixth finding of fact by the court' that the ordinance as amended here furnishes a standard and method for its enforcement.

Plaintiffs do not challenge the fact that the governing body of the city of Charlotte is clothed with power to enact and enforce ordinances for the observance of Sunday. The city has such power, and that question has been decided in S. v. McGee, supra.

The effective date of the challenged ordinance as amended is 1, October 1962. Plaintiffs contend that this ordinance as amended has been superseded and replaced by Ch. 488, Session Laws 1963, which is entitled “AN ACT TO REWRITE G.S. 14-346.2 TO PROPHIBIT CERTAIN BUSINESS ACTIVITIES ON SUNDAY.” In the recent case of Treasure City v. Clark, Ante, 130, 134, S.E. 2d 97, the Court held this Act unconstitutional, because it violates the provisions of Article II, section 29, of the North Carolina Constitution. This contention is untenable because an unconstitutional statute cannot operate to supersede and replace or to affect or modify an existing valid city ordinance. Board of Managers v. Wilmington, 237 N.C. 179, 74 S.E. 2d 749; Chicago, I.L.R. Co. v. Hackett, 228 U.S. 559, 57 L. Ed. 966; 16 C.J.S., Constitutional Law, sec. 101; p. 473.

We are of opinion, and so hold, that the ordinance as amended is constitutional, insofar as it has been challenged on this appeal, and that the trial court’s findings of fact and conclusions of law, and its judgment based thereon are legally correct. All plaintiffs’ assignments of error are overruled. The judgment below is

Affirmed.