State v. Smith

247 S.E.2d 331, 271 S.C. 317, 1978 S.C. LEXIS 328

• Court: Supreme Court of South Carolina
• Decided: August 24, 1978
• Docket: 20751
• Status: Published

Opinions

Littlejohn, Justice:

'The appellant, Dennis Smith, was convicted by a jury and sentenced by the trial judge for violation of South Carolina Sunday Blue Laws. As manager, he operated the Ingles Grocery Store on a Sunday, employing six persons.

Section 53-1-40, Code of Laws of South Carolina (1976),¹ provides in part as follows:

“On the first day of the week, commonly called Sunday, it shall be unlawful for any person to engage in worldly work, labor, business of his ordinary calling or the selling or offering to sell, publicly or privately or by telephone, at retail or at wholesale to the consumer any goods, wares or merchandise or to employ others to engage in work, labor, business or selling or offering to sell any goods, wares or merchandise, excepting work of necessity or charity. . . .”

Section 53-1-50 of the 1976 Code ² reads in relevant part:

“Section 53-1-40 shall not apply to the following: . . . grocery stores which do not employ more than three persons including the owners or proprietors at any one time; . .

The grocery store operated by the appellant is a typical supermarket. Located inside the store is a delicatessen which is a part of the overall store operation. Three employees were assigned to the delicatessen, which had its own cash register and separate operating license as required by city ordinance.

At appropriate times during .the trial, counsel for the appellant challenged the constitutionality of the statute, and such is the main issue now submitted to this court. It is the contention of the appellant that the statute is discriminatory in that grocery stores which can be operated with three or fewer employees are permitted to operate on Sunday, whereas larger grocery stores which cannot be operated by three or fewer employees are prohibited, which, he argues, is violative of the constitutional right of equal protection of the laws, as provided by the Fourteenth Amendment to the Constitution of the United States.

It is conceded that the state has the constitutional right to limit business activity on Sunday. State v. Solomon, 245 S. C. 550, 141 S. E. (2d) 818 (1965).

The Fourteenth Amendment permits the states a wide scope of discretion in enacting laws which affect some groups of citizens differently from 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 inequity. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. McGowan v. State of Maryland, 366 U. S. 420, 81 S. Ct. 1101, 61 L. Ed. (2d) 393 (1961).

In State v. Solomon, supra, this court held that the purpose of the statutory enactment was . . . “to provide a uniform day of rest for all citizens, permitting only work of necessity or charity.” We are of the opinion that the legislature could reasonably find that the health and welfare of the populace requires that items normally sold by small grocery stores be available. By limiting the workers to three, the statute insures that the day of rest is extended to the maximum number of citizens, while at the same time making necessary food items available. By limiting the workers to three, the statute insures that the grocery business will not take in a regular weekday full-scale volume, with concomitant traffic, noise and activity. Commercial activity is minimized; a day of rest for citizens is maximized, consistent with the overall purpose.

We are not unaware of the fact that the supreme courts of some states have taken the contrary view. We follow the reasoning of the United States Supreme Court in holding that there has been no denial of equal protection of the law under the Fourteenth Amendment. McGowan v. State of Maryland, supra.

The appellant also asks for a new trial, alleging that the trial judge violated the provisions of Article V, § 17, of the Constitution of South Carolina by charging on the facts. The judge stated to the jury that: “If a bakery, restaurant, delicatessen or similar operation is located within a grocery store and operates simultaneously with the operation of the grocery store, it shall not be considered as a separate business.”

A review of the evidence convinces us that the delicatessen operation was a part of the overall store operation, such that the jury would not have been warranted in finding that the delicatessen was a separate business operation. The contention of the appellant that the jury should have been permitted to find that there were in effect two businesses, one a grocery store with three employees and one a delicatessen with three employees, is without merit. There was no issue for the jury to determine. See State v. Durant, 87 S. C. 532, 70 S. E. 306 (1911).

Affirmed.

Lewis, C. J., and Rhodes and Gregory, JJ., concur. Ness, J., dissents.

1 Section 64-2 of the 1962 Code.

2 Section 64-2.1 of the 1962 Code.