SS Kresge Company v. Tomlinson , 275 N.C. 1 ( 1969 )

165 S.E.2d 236 (1969) 275 N.C. 1

S. S. KRESGE COMPANY
v.
Travis H. TOMLINSON, Mayor of the City of Raleigh, North Carolina, and George B. Cherry, Earl H. Hostetler, Seby B. Jones, William M. Law, Clarence E. Lightner, William H. Worth, Members of the City Council for the City of Raleigh, North Carolina, and Thomas W. Davis, Chief of Police of the City of Raleigh, North Carolina. ARLAN'S DEPT. STORE OF RALEIGH, INC.
v.
Travis H. TOMLINSON, Mayor of the City of Raleigh, North Carolina, and George B. Cherry, Earl H. Hostetler, Seby B. Jones, William M. Law, Clarence E. Lightner, William H. Worth, Members of the City Council for the City of Raleigh, North Carolina, and Thomas W. Davis, Chief of Police of the City of Raleigh, North Carolina.

No. 524.

Supreme Court of North Carolina.

January 21, 1969.

Jordan, Morris & Hoke and Eugene Hafer, Raleigh, for plaintiff appellants.

Donald L. Smith, Raleigh, for defendant appellees.

BOBBITT, Justice.

Plaintiffs alleged the ordinance prohibits the sale of the great majority of the items of merchandise they would otherwise sell during the period they operate their stores on Sunday, namely, from 1:00 p. m. through 7:00 p. m. Their factual allegations, which are admitted for the purpose of testing the sufficiency of the complaints, are deemed sufficient to support their conclusion that enforcement of the ordinance would cause them to suffer "substantial direct economic injury."

Nothwithstanding the general rule that the constitutionality of a statute or ordinance purporting to create a criminal offense may not be challenged in an action to enjoin its enforcement, a well established exception permits such action when injunctive relief is essential to the protection of property rights and the rights of persons against injuries otherwise irremediable. G. I. Surplus Store, Inc. v. Hunter, 257 N.C. 206, 214, 125 S.E.2d 764, 770; High Point Surplus Co. v. Pleasants, Sheriff, 264 N.C. 650, 653, 142 S.E.2d 697, 700.

The General Assembly, exercising the police power of the State, may legislate for the protection of the public health, safety, morals and general welfare of the people. Sunday observance statutes and municipal ordinances derive their validity from this sphere of legislative power. State v. McGee, 237 N.C. 633, 75 S.E.2d 783, and cases cited; State v. Chestnutt, 241 N.C. 401, 85 S.E.2d 297; High Point Surplus Co. v. Pleasants, Sheriff, supra. Legislative authority for the adoption of the ordinance sub judice was conferred by the general statutes codified as G.S. § 160-52 and G.S. § 160-200(6), (7) and (10), and by "The Charter of the City of Raleigh," Session Laws of 1949, Chapter 1184, Sections 21 and 22.

The question presented by this appeal is whether the ordinance is unconstitutional on the grounds on which plaintiffs attack it. Hudson v. Atlantic Coast Line R. Co., 242 N.C. 650, 667, 89 S.E.2d 441, 453; G. I. Surplus Store, Inc. v. Hunter, supra; Sykes v. Clayton, Com'r of Department of Revenue, 274 N.C. 398, 402, 163 S.E.2d 775, 778.

The Raleigh ordinance is similar to the Charlotte ordinance considered in Clark's Charlotte, Inc. v. Hunter, 261 N.C. 222, 134 S.E.2d 364, and is identical, except in the respects noted below, to the Winston-Salem ordinance considered in Charles Stores Co. v. Tucker, 263 N.C. 710, 140 S.E.2d 370. The validity of the Charlotte and Winston-Salem ordinances was upheld by this Court when attacked as violative of the law of the land provision of Article I, Section 17, of the Constitution of North Carolina, and of the due process clause of the Fourteenth Amendment to the Constitution of the United States.

The Raleigh ordinance differs from the Winston-Salem ordinance considered in Charles Stores Co. v. Tucker, supra, in that, in addition to its comprehensive prohibitions, it includes the sale of "Sporting goods and toys," Section 15-43(a), Subsection 7, in the list of specifically prohibited items, and in Section 15-43(o), it specifically authorizes the sale on Sunday "of live bait such as worms, minnows, crickets and shrimp." (Our italics.) These differences, to which attention is called in plaintiffs' briefs, do not bear significantly on the constitutionality of the ordinance. The classification of "Sporting goods and toys" as prohibited items and of live bait as permitted items cannot be considered unreasonable, arbitrary or discriminatory. Hence, on authority of Clark's Charlotte, Inc. v. Hunter, supra, and Charles Stores Co. v. Tucker, supra, we hold the provisions of the Raleigh ordinance are not unreasonable, arbitrary, or discriminatory as applied to plaintiffs. The reasons underlying decision in these authoritative cases are set forth respectively in the opinions of Parker, C. J., and of Sharp, J. Repetition is unnecessary and would be inappropriate. Hence, the validity of the ordinance is sustained as against plaintiffs' attack thereon as violative of Article I, Section 17, of the Constitution of North Carolina, and of the due process clause of the Fourteenth Amendment to the Constitution of the United States.

Plaintiffs assert, as their primary ground of attack, that the Raleigh ordinance is unconstitutional as violative of the First Amendment to the Constitution of the United States.

"The First Amendment, as made applicable to the States by the Fourteenth, Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. [870, 882] 891, 87 L. Ed. 1292, 146 A.L.R. 81, commands that a state ``shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.' * * *" Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711, 168 A.L.R. 1392. Accord: Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S. Ct. 461, 92 L. Ed. 649, 2 A.L.R. 2d 1338; In re Williams, 269 N.C. 68, 78, 152 S.E.2d 317, 325, and cases there cited.

The two quoted clauses of the First Amendment are referred to generally as the "Establishment Clause," and the "Free Exercise Clause," respectively. Plaintiffs base their attack solely on the "Establishment Clause."

In McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393, the Supreme Court of the United States affirmed the Court of Appeals of Maryland which, in McGowan v. State, 220 Md. 117, 151 A.2d 156, had affirmed the conviction of employees of a discount department store for making sales on a Sunday in violation of the Maryland Sunday closing laws. The Maryland statutes were attacked on the ground, inter alia, they violated "the guarantee of separation of church and state in that the statutes are laws respecting an establishment of religion contrary to the First Amendment, made applicable to the States by the Fourteenth Amendment." 366 U.S. at 430, 81 S.Ct. at 1107, 6 L.Ed.2d at 401. Since enforcement thereof caused the defendants to suffer "direct economic injury," it was held that the defendants had "standing to complain that the statutes are laws respecting an establishment of religion," 366 U.S. at 431, 81 S.Ct. at 1108, 6 L.Ed.2d at 402, but that the challenged Maryland Sunday closing laws were not invalid as violative of the "Establishment Clause" or otherwise. Accord: Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S. Ct. 1135, 6 L. Ed. 2d 551, reh. den. 368 U.S. 869, 82 S. Ct. 21, 7 L. Ed. 2d 69.

In the present action, defendants concede plaintiffs have sufficient standing to challenge the Raleigh ordinance as violative of the "Establishment Clause." However, defendants contend that plaintiffs' challenge of the Raleigh ordinance as violative of the "Establishment Clause" is without merit.

In McGowan, Mr. Chief Justice Warren quotes with approval this excerpt from the opinion of Mr. Justice Black in Everson: "The ``establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institution, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ``a wall of separation between Church and State.'" 366 U.S. at 443, 81 S.Ct. at 1114, 6 L.Ed.2d at 409.

Plaintiffs' attack on the Raleigh ordinance as violative of the "Establishment Clause" is based on the allegations of Paragraphs VIII and IX of the compaints, viz.:

"VIII. That the said ordinance permits the sale of ``Christmas greenery' during the month of December, which is the month in which the Christmas holiday is celebrated by persons of the Christian religion; that at all other times of the year ``Christmas greenery' may not be sold on Sunday by plaintiff and others similarly situated; that this requirement has no relationship to the setting aside of Sunday as a day of rest but was enacted to aid the observance of a Christian tradition.

"IX. That plaintiff and others similarly situated may operate a grocery store and stand for the sale of fruits and melons on Sunday except during the hours of 10:00 a. m. until 12:00 noon, which are hours traditionally and generally set aside for worship services by persons of the Christian religion; that the requirement for closing during these hours has no relationship to the setting aside of Sunday as a day of rest but was enacted to aid the observance of Sunday as a day of Christian worship." (Our italics.) (Quoted from Kresge's complaint. Paragraph IX of Arlan's complaint is the same with this exception: In lieu of the italicized words, Arlan alleged: "That the ordinance complained of specifically allows certain sales and activities * * * ")

The City Council, in the preamble, declares the Raleigh ordinance was adopted because there existed "a clear and present need to restrict the carrying on of business activities on Sunday in the City of Raleigh in order to provide for the due observance of Sunday as a day of rest, and to protect and promote the public health, the general welfare, safety and morals of the citizens." In general, the Raleigh ordinance, like the Winston-Salem ordinance, exempts "those businesses rendering essential services or furnishing products considered as necessary for health or as contributing to the recreational aspect of Sunday." Charles Stores Co. v. Tucker, supra.

Although recognizing the predecessors of the Maryland Sunday laws under consideration were "undeniably religious in origin," Mr. Chief Justice Warren, in McGowan, states:

"In light of the evolution of our Sunday Closing Laws through the centuries, and of their more or less recent emphasis upon secular consideration, it is not difficult to discern that as presently written and administered, most of them, at least, are of a secular rather than of a religious character, and that presently they bear no relationship to establishment of religion as those words are used in the Constitution of the United States.

"Throughout this century and longer, both the federal and state governments have oriented their activities very largely toward improvement of the health, safety, recreation and general well-being of our citizens. Numerous laws affecting public health, safety factors in industry, laws affecting hours and conditions of labor of women and children, week-end diversion at parks and beaches, and cultural activities of various kinds, now point the way toward the good life for all. Sunday Closing Laws, like those before us, have become part and parcel of this great governmental concern wholly apart from their original purposes or connotations. The present purpose and effect of most of them is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals. To say that the States cannot prescribe Sunday as a day of rest for these purposes solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare rather than one of mere separation of church and State." 366 U.S. at 444-445, 81 S.Ct. at 1115,6 L.Ed.2d at 410.

In Clark's Greenville, Inc. v. West, 268 N.C. 527, 151 S.E.2d 5, involving a Greenville Sunday ordinance identical in all material respects to the ordinance considered in Charles Stores Co. v. Tucker, supra, it was held that the courts, in respect of an ordinance valid on its face, will not inquire into the motives which prompted the city council to enact it. Plaintiffs contend the Raleigh ordinance, notwithstanding the declared purpose for which the City Council enacted it, discloses on its face "a use of the State's coercive power to aid religion, namely, the Christian religion." The contention is based upon two incidental and secondary features of the ordinance, to wit: (1) That "Christmas greenery" may not be sold on Sunday except during the month of December; and (2) that grocery stores and stands for the sale of fruits and melons may be operated during all hours on Sunday except between 10:00 a. m. and 12:00 noon.

The first feature to which plaintiffs call our attention is the permitted sale of "Christmas greenery" on Sunday during the month of December. Apparently, the term "Christmas greenery" is intended to identify evergreen trees, holly, mistletoe, and other recently cut and perishable trees and shrubs, which are used as decorations on streets, in stores, in homes, and generally throughout the community during the Christmas season. Obviously, such greenery would be offered for sale only during the month of December. While the word "Christmas," standing alone, has a distinctive religious connotation, the decorations included within the term "Christmas greenery" are used indiscriminately by all segments of the community—especially merchants—without reference to a specific religious affiliation or any religious affiliation. Suffice to say, this small particular cannot be considered a sufficient basis for declaring the ordinance unconstitutional as violative of the "Establishment Clause" of the First Amendment to the Constitution of the United States.

The second feature to which plaintiffs call our attention, namely, the provision purporting to require grocery stores and stands for the sale of fruits and melons to cease operations between 10:00 a. m. and 12:00 noon, appears to have been brought forward from earlier ordinances. These, previously considered and upheld by this Court, were not attacked as violative of the "Establishment Clause," e. g., the WinstonSalem ordinance considered in Charles Stores Co. v. Tucker, supra. At the outset we note that the complaints disclose plaintiffs would suffer no economic injury on account of the enforcement of this provision. Since their stores are operated on Sunday between the hours of 1:00 p. m. and 7:00 p. m., this provision imposes no restraint on plaintiffs and is not presently subject to attack by plaintiffs in an action to obtain injunctive relief. Charles Stores Co. v. Tucker, supra, 263 N.C. at 717, 140 S.E.2d at 375, and cases cited.

The aid, if any, to the Christian religion resulting from the enforcement of the twohour closing provision referred to in the preceding paragraph would seem minimal and remote. As Mr. Chief Justice Warren said in Two Guys from Harrison-Allentown, Inc. v. McGinley, supra, with reference to the Pennsylvania statutes, which contained provisions having greater religious connotations than any in the Raleigh ordinance: "It would seem that those traces that have remained (that is, language with religious connotations) are simply the result of legislative oversight in failing to remove them." Id. at 366 U.S. at 594, 81 S.Ct. at 1141, 6 L.Ed.2d at 559.

In the opinion in McGowan, Mr. Chief Justice Warren stated: "The title of the major series of sections of the Maryland Code dealing with Sunday closing—Art. 27, §§ 492-534C—is ``Sabbath Breaking'; § 492 proscribes work or bodily labor on the ``Lord's day,' and forbids persons to ``profane the Lord's day' by gaming, fishing et cetera; § 522 refers to Sunday as the ``Sabbath day.' As has been mentioned above, many of the exempted Sunday activities in the various localities of the State may only be conducted during the afternoon and late evening; most Christian church services, of course, are held on Sunday morning and early Sunday evening. Finally, as previously noted, certain localities do not permit the allowed Sunday activities to be carried on within one hundred yards of any church where religious services are being held. This is the totality of the evidence of religious purpose which may be gleaned from the face of the present statute and from its operative effect." 366 U.S. at 445, 81 S.Ct. at 1115, 6 L.Ed.2d at 410. Suffice to say, the Maryland statutes which were upheld in McGowan against attack as violative of the "Establishment Clause" contain more provisions than the Raleigh ordinance suggestive of a relationship between the Sunday closing laws and the Christian religion.

In accord with McGowan and Two Guys, we hold that "neither the statute's (ordinance's) purpose nor its effect is religious." Two Guys from Harrison-Allentown, Inc. v. McGinley, supra, 366 U.S. at 598, 81 S.Ct. at 1143, 6 L.Ed.2d at 561.

The demurrers were properly sustained; and, since the ordinance, which is incorporated in the complaints, discloses that plaintiffs have no cause of action for injunctive relief on the grounds alleged, the actions were properly dismissed.

Affirmed.