State v. Towery , 239 N.C. 274 ( 1954 )

79 S.E.2d 513 (1954) 239 N.C. 274

STATE
v.
TOWERY.

No. 653.

Supreme Court of North Carolina.

January 15, 1954. Appeal Dismissed March 15, 1954.

Schoch & Schoch, High Point, for appellant.

Harry McMullan, Atty. Gen., Claude L. Love, Asst. Atty. Gen., and Gerald F. White, Member of Staff, Raleigh, for the State.

Appeal Dismissed March 15, 1954. See 74 S.Ct. 532.

DENNY, Justice.

Attacks on the validity of Sunday ordinances have been a fruitful source of litigation in this country. In recent years particularly, there seems to be a growing desire on the part of many individuals, who are engaged in commercial enterprises, to completely ignore the observance of Sunday as a day of rest. In fact, in some jurisdictions, the courts seem to have concluded that Sunday closing ordinances are invalid if the mercantile establishments, which are required to close on Sunday, carry items of merchandise similar to those which may be sold on Sunday by the excepted class of business establishments. Elliott v. State, 29 Ariz. 389, 242 P. 340, 46 A.L.R. 284; Allen v. City of Colorado Springs, 101 Colo. 498, 75 P.2d 141. In the case of City of Mt. Vernon v. Julian, 369 I11. 447, 17 N.E.2d 52, 55, 119 A.L.R 747, the Supreme Court of Illinois said: "No reason is suggested and we can think of none why the shop of a dressmaker or milliner should be required to close while the cigar store remains open. None is apparent why a dry goods store should be required to close when a newsstand continues to operate. We do not see where the public welfare is served by closing the grocery store and allowing a confectionery store to remain open, nor in closing a notions store while a drug store next door which sells notions is permitted to operate." It would seem that the reasoning of the Illinois Court ignores the right of a municipality in adopting a Sunday closing ordinance to discriminate as between classes, State 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.

It is generally conceded that the governing body of a municipality, clothed with power to enact and enforce ordinances for the observance of Sunday, "is vested with discretion in determining the kinds of pursuits, occupations, or businesses to be included or excluded, and its determination will not be interfered with by the courts provided the classification and discrimination made are founded upon reasonable distinctions and have some reasonable relation to the public peace, welfare, and safety." 50 Am.Jur., Sundays and Holidays, section 11, page 810; State v. McGee, 237 N.C. 633, 75 S.E.2d 783.

In State v. Trantham, supra [230 N.C. 641, 55 S.E.2d 200], Barnhill, J., pointed out that: "Legislative bodies may distinguish, select, and classify objects of legislation. It suffices if the classification is practical. Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 18 S.Ct. 594, 42 L.Ed. 1037; State v. Davis, supra (171 N.C. 809, 89 S.E. 40). They may prescribe different regulations for different classes, and discrimination as between classes is not such as to invalidate the legislative enactment. Smith v. Wilkins, 164 N.C. 135, 80 S.E. 168. The very idea of classification is inequality, so that inequality in no manner determines the matter of constitutionality. Bickett v. Tax Commission, 177 N.C. 433, 99 S.E. 415; Atchison, T. & S. F. R. Co. v. Matthews, 174 U.S. 96, 19 S.Ct. 609, 43 L.Ed. 909. The one requirement is that the ordinance must affect all persons similarly situated or engaged in the same business without discrimination. City of Springfield v. Smith, 322 Mo. 1129, 19 S.W. 2d 1."

The defendant here, like the defendant in State v. McGee, supra, does not claim that the ordinance discriminates against him in so far as it applies to any other person or persons similary 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.

In the case of State v. Medlin, 170 N.C. 682, 86 S.E. 597, the Town of Zebulon had adopted an ordinance which prohibited keeping any shop or store open on Sunday for the purpose of buying and selling (except ice), but provided that " ``drug stores may be kept open at all times on Sundays for the sale of drugs and medicines, and from 6 to 9:30 o'clock in the morning and from 1 to 4:30 o'clock in the afternoon for the sale of drugs, medicines, mineral waters, soft drinks, cigars and tobacco only.'" The defendant who did not operate a drug store, opened his grocery store between the hours of 6 and 8 o'clock a. m., on Sunday, January 18, 1915, while the above ordinance was in full force and effect, and sold cigars, cigarettes and Coca-Cola to several purchasers and received cash payments therefor. At this same time, a drug store in Zebulon was open for the sale of these same articles. The Court said: "This ordinance, which prohibits keeping open stores and other places of business for the purpose of buying or selling (except ice), excepts 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." This decision has been followed and cited with approval in State v. Davis, 171 N.C. 809, 89 S.E. 40; State v. Burbage, 172 N.C. 876, 89 S.E. 795; Lawrence v. Nissen, 173 N.C. 359, 91 S.E. 1036; State v. Kirkpatrick, 179 N.C. 747, 103 S.E. 65; State v. Weddington, 188 N.C. 643, 125 S.E. 257, 37 A.L.R, 573; and State v. McGee, supra.

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 exempton extends to (1) "ice cream or confectionery stores, furnishing ice 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.

As stated by Stacy, C. J., in State v. Weddington, supra: "It must be remembered that we are dealing with the exercise of an unquestioned police power, and whether it transcends the bounds of reason —not with its wisdom or impolicy." State v. Vanhook, 182 N.C. 831, 109 S.E. 65.

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.

No error.