Hechinger Co. v. State's Attorney

326 A.2d 742, 272 Md. 706, 1974 Md. LEXIS 801

• Court: Court of Appeals of Maryland
• Decided: October 25, 1974
• Docket: [No. 31, September Term, 1974.]
• Status: Published

Opinions

Singley, J.,

delivered the opinion of the Court. O’Donnell, J., concurs in the result and filed a concurring opinion at page 713 mfra.

This rounds out a trilogy of recent cases involving Sunday closing laws, two in Prince George’s County, one in Montgomery County. In Giant of Maryland, Inc. v. State’s Attorney for Prince George’s County, 267 Md. 501, 298 A. 2d 427, appeal dismissed, 412 U. S. 915 (1973) we held that the Sunday closing law applicable to Prince George’s County, Maryland Code (1957, 1971 Repl. Vol.) Art. 27, § 534H (b) 1-3 did not permit Giant to avail itself of the exemption accorded drugstores, delicatessens and bakeries, because although Giant operated a pharmacy, a delicatessen and a bakery within its store, its business was the general sale of food products.

The second case, Dart Drug Corp. v. Hechinger Co., 272 Md. 15, 320 A. 2d 266 (1974), involved the interpretation of a similar Sunday closing law, Code (1957, 1971 Repl. Vol.) Art. 27, § 534J applicable to Montgomery County. The same Hechinger Company (Hechinger) which is the appellant here had instituted an action for declaratory and injunctive relief in the Circuit Court for Montgomery County against Dart Drug Corporation, Drug Fair, Inc. and Peoples Drug Stores, Inc., alleging that the defendants’ stores, which sold 67% of the same items sold by Hechinger, were permitted to remain open on Sunday, while Hechinger was required to be closed. In that case, we found that the three defendants did not qualify for the statutory exemption accorded to “[d]rugstores whose basic business is the sale of drugs and related items” because their basic business was not the sale of drugs. We modified the trial court’s order, and affirmed as modified a declaration and order enjoining and restraining the defendants from conducting business on Sunday in any store which regularly employed on weekdays more than six persons on any one shift.

This case began in June of 1973 when the State’s Attorney filed a petition for injunctive relief against Hechinger in the Circuit Court for Prince George’s County, seeking to enforce the same Sunday closing law which had been at issue in Giant of Maryland, Inc. v. State’s Attorney for Prince George’s County, supra, 267 Md. 501. From a decree granting injunctive relief, Hechinger appealed to the Court of Special Appeals which affirmed in Hechinger Co. v. State’s Attorney for Prince George’s County, 19 Md. App. 707, 313 A. 2d 715 (1974). We granted certiorari.

Code (1957, 1971 Repl. Vol.) Art. 27, § 534H (the Statute) which is at issue here, provides in part:

“(a) In Prince George’s County, except as specifically in this section otherwise provided, it is unlawful on Sunday for any wholesale or retail establishment to conduct business for labor or profit in the usual manner and location or to operate its establishment in any manner for the general public. It shall not cause, direct, permit, or authorize any employee or agent to engage in or conduct business on its behalf on Sunday.”

“(c) Nothing in this section applies to:

1. Farmers

2. Nurserymen

3. Small business with not more than six (6) persons on any one shift with the exception of persons or retailers engaged in the sale of motor vehicles.” ¹

Hechinger, which advertises as “The World’s Most Unusual Lumber Yards” operates two stores in Prince George’s County: one at Marlow Heights and one at Prince George’s Plaza Shopping Center, near Hyattsville. In Dart Drug Corp. v. Hechinger Co., supra, 272 Md. at 18-19, Hechinger’s president described his company as being “in the lumber, hardware and general merchandise business” or, alternatively, as being in the “home center business.”

Sergeant Robert R. Ross, of the Prince George’s County police department, testified that on the morning of Sunday, 3 June 1973, he visited the Hechinger store at Marlow Heights. He found some 75 customers and 24 employees in the store. From Ross’ testimony can be culled the items he saw for sale in the store. They included: building materials, appliances, lawn furniture, shrubbery, evergreen trees, swimming pool accessories, machine tools, windows, door frames, paint, hardware supplies, iceboxes, washing machines, stoves, barbecue grills, hibachis, charcoal, picnic supplies, chemicals, insecticides, decorative bark, stones, fencing, fertilizers, flower tubs, boxes, pots, garden carts, hand tools, hoses, lawn sweepers and mowers, sprayers, spreaders, storage buildings, plastic pipe. In response to a question, Ross estimated that less than one fourth of the store was devoted to garden related items (as distinguished from nursery stock, most of which was displayed outside) and that five or six employees were in that area.

At the conclusion of Ross’ testimony, it was stipulated that Hechinger’s Hyattsville store, also open on that day, was not substantially different. The only other witness was John W. Hechinger, the company’s president, who testified for the defendant.

Hechinger said that his company sold some 220 items of growing stock, including evergreens, roses, flowering shrubs, fruit trees, annuals and bedding plants; that in the last 3 years about 100 employees had attended a course in lawn care given by the O. M. Scott Company in Marysville, Ohio, and that the outside area where most of the nursery stock was sold occupied an area about one third the size of the store. It was Mr. Hechinger’s opinion that approximately 50% of his company’s sales were derived from what he regarded as nursery related items, which included barbecue grills, hibachis, charcoal, birdhouses, chemicals, insecticides, decorative bark, stones, brick, fencing, fertilizers, flower tubs, boxes, pots, fountains, furniture (metal and/or wood), garden carts, gloves, grass catchers, shrubs, rosebushes, flats, bulbs, hammocks, hand tools, shovels, hoes, rakes, spades, weeders, forks, shears, pruners, clippers, loppers, trowels, hoses, sprinklers, nozzles, sprinkling cans, insect foggers, lawn sweepers, patio stones, blocks, peat moss, “all other soil conditioners,” power tools, saws, edgers, trimmers, tillers, grass seed, flower seed, vegetable plant seed, sprayers, spreaders, statuary, storage buildings, trellises, wheelbarrows, patio decking, plastic pipes, cement, sand, drain tile, creosote, and sod.

On cross examination, Mr. Hechinger further explained his answer by saying that his company’s sales are about equally divided between items used inside the house and items used outside the house. No evidence of sales figures 'by categories was introduced.

Hechinger challenges the result reached by the trial court and affirmed by the Court of Special Appeals on the ground that it was posited on a narrow definition of a nursery as a place where plant life is propagated, with the natural consequence that a nurseryman, within the contemplation of Art. 27, § 534H (c) 2 is the operator of just such a nursery.²

Hechinger, relying on determinations reached in the context of zoning law, Anderson v. Humble Oil & Refining Co., 226 Ga. 252, 174 S.E.2d 415 (1970); Suburbia Gardens Nursery, Inc. v. County of St. Louis, 377 S.W.2d 266 (Mo. 1964); Town of Needham v. Winslow Nurseries, Inc., 330 Mass. 95, 111 N.E.2d 453 (1953) and A. C. Nurseries, Inc. v. Brady, 278 App. Div. 974, 105 N.Y.S.2d 933 (1951), see 67 C.J.S. Nursery (1950, Supp. 1974), would have us hold that we should give a broader scope than did the chancellor or the Court of Special Appeals to the term nurseryman as used in the Statute. Although we are fully prepared to do this, it will be of little comfort to Hechinger, since in our view a correct result was reached below, but for what we regard as the wrong reason.

Turning to the question of statutory construction, it should be noted that the Statute was last before the General Assembly in 1969, when it was amended by Chapters 277 and 282 of the Laws of 1969.³ By then, the legislature must have had in mind the situation which had developed in the metropolitan areas of Baltimore and Washington, where many nurserymen customarily offered for sale plant material which had been propagated and raised elsewhere, either by the seller or by others. It is too late in the day to argue that the exemption extended by the Statute to nurserymen may be availed of only by the propagator and grower of plant materials, since the Statute must be construed in the light of customs and usages existing at the time of its enactment or amendment, Town of Needham v. Winslow Nurseries, Inc., supra, 330 Mass, at 99, 111 N.E.2d at 455-56; cf. Williams v. Loyola College, 257 Md. 316, 328, 263 A. 2d 5, 11 (1970); 2A C. Sands, Sutherland Statutory Construction § 47.28, at 141-42 (4th ed. 1973).

Even this concession, however, affords no solace to Hechinger, because Hechinger, on the facts before us, can no more be regarded as a nurseryman than the wide ranging operations of Giant Food or Dart Drug could be regarded as those of a drugstore, for purposes of the Sunday closing laws.⁴ The record clearly shows that while Hechinger may not be a lumberyard, its business is that of a seller of a wide range of general merchandise. Even if we apply Mr. Hechinger’s somewhat amorphous inside/outside test it is clear that products sold for use outside the home, by his definition, include much more than plant materials and nursery related items — such as insecticides, fertilizers, peat moss, mulch, potting soil, pots, seeds, bulbs, house plants, small hand tools, and the like, all of which are customarily sold by nurseries in the Washington metropolitan area. Town of Needham v. Winslow Nurseries, Inc., supra, on which Hechinger relies, recognized at 101-02 of 330 Mass, and at 457 of 111 N.E.2d that nursery stock not grown on the premises may be sold by a nursery, but held that sales of items other than “fungicides, insecticides, chemicals, peat moss, humus, mulches, and fertilizers” were not incidental to the operation of a nursery, a permitted use in an area zoned residential. See also Suburbia Gardens Nursery, Inc. v. County of St. Louis, supra, 377 S.W.2d at 272-73. Difficult as it may be on the record before us to characterize Hechinger’s principal business, which may well be that of a home center, of a hardware store, of an appliance store, or of a retail lumber dealer, it is certainly not that of a nursery.

There were introduced in evidence photographs of other nursery operations which, according to Mr. Hechinger, were open on Sunday. Two of them were adjuncts to department stores, which were otherwise closed. A third was at a hardware store, which seemingly operated with six or fewer employees. Another was a nursery which, as far as we could ascertain from the photographs, sold only nursery related items.

Hechinger’s second contention is that the Statute is so vague, ambiguous, uncertain and insusceptible of definition as to amount to a denial of due process. We have recognized that due process is violated only when a statute is so vague that persons of ordinary intelligence must necessarily guess at its meaning and differ as to its application, MacLeod v. City of Takoma Park, 257 Md. 477, 481, 263 A. 2d 581, 583 (1970). The compelling answer to this contention is that the same argument was made as regards the same statute in Giant of Maryland v. State’s Attorney for Prince George’s County, supra, 267 Md. at 514-15, where we said:

“But the imperfect drafting of § 534H does not compel a holding that the statute is vague and indefinite in a constitutional sense, as urged by Giant. On the contrary, bearing in mind that § 534H is a penal statute, we think that, as written, it is sufficiently explicit to enable a person of ordinary intelligence to ascertain with a fair degree of precision what it prohibits and what conduct on his part will render him liable to its penalties; it does not, therefore, affront the constitutional guarantees of due process.”

See also Rebe v. State’s Attorney for Prince George’s County, 262 Md. 350, 277 A. 2d 616 (1971).

Because we regard the result reached below as the right one, we shall affirm.

Judgment affirmed; stay order vacated; costs to be paid by appellant.

1 . Chapter 384 of the Laws of 1974, effective 1 July 1974 amended § 534H (c) 3, so that it now reads: “Any business with not more than six persons on any one shift on Sunday with the exception of persons or retailers engaged in the sale of motor vehicles.” A similar change was made in § 534J (c) 3, applicable to Montgomery County.

2 . Webster’s New International Dictionary of the English Language 1674, 1675 (2d ed. 1944) defines a nursery as “[a] place where trees, shrubs, vines, etc., are propagated for transplanting or for' use as stocks for grafting; a plantation of young trees or other plants” and a nurseryman as “[o]ne who conducts or cultivates a nursery.” This was the test applied by the older cases, collected in 67 C.J.S. Nursery at 2-3 (1950).

3 . Excepting, of course, Chapter 384 of the Laws of 1974 which became effective long after this case had been instituted.

4 . See Giant of Maryland v. State’s Attorney for Prince George’s County, 267 Md. 501, 298 A. 2d 427, appeal dismissed, 412 U. S. 915 (1973); Dart Drug Corp. v. Hechinger Co., 272 Md. 15, 320 A. 2d 266 (1974).