SS Kresge Company v. Davis

178 S.E.2d 382 (1971) 277 N.C. 654

S. S. KRESGE COMPANY, Sky City Stores, Inc., and Zayre of High Point, Inc.
v.
Robert D. DAVIS, Mayor of the City of High Point, Paul Clapp, William Bencini, Fred M. Yoder, Fred Swartzberg, J. Coy Putman, James R. Shelton, O. Arthur Kirkman, and John W. Thomas, Jr., Members of the City Council for the City of High Point, North Carolina, Laurie Pritchett, Chief of Police of the City of High Point, Douglas Albright, Solicitor of the Superior Court, and Ross Strange, District Court Prosecutor.

No. 34.

Supreme Court of North Carolina.

January 20, 1971.

Rossie G. Gardner and Jerry C. Wilson, High Point, for plaintiff appellants.

Knox Walker, High Point, Atty. for City of High Point; Morgan, Byerly, Post & Keziah, by J. V. Morgan; Smith & Patterson, by Norman B. Smith, High Point, for defendant appellees.

LAKE, Justice.

In all respects material to this appeal the ordinance of the City of High Point here in question is identical with the ordinances of the cities of Raleigh, Winston-Salem and Charlotte held valid by this Court in Kresge Co. v. Tomlinson and Arlan's Dept. Store of Raleigh, Inc. v. Tomlinson, 275 N.C. 1, 165 S.E.2d 236; Charles Stores Co. v. Tucker, 263 N.C. 710, 140 S.E.2d 370; and Clark's Charlotte, Inc. v. Hunter, 261 N.C. 222, 134 S.E.2d 364. The businesses operated by the plaintiffs in the City of High Point, as described in their complaint, are substantially the same as those operated by the plaintiffs in each of the above cases. Upon the authority of those decisions, we hold that the ordinance now before us, on its face, is a valid enactment, does not discriminate unlawfully against these plaintiffs, either in its classification of business establishments which may and may not be operated on Sunday or in its classification of types of merchandise which may and may not be sold in establishments permitted to remain open on Sunday, and does not violate any constitutional right of the plaintiffs asserted by them herein. See also: Raleigh Mobile Home Sales, Inc. v. Tomlinson, 276 N.C. 661, 174 S.E.2d 542; Clark's Greenville, Inc. v. West, 268 N.C. 527, 151 S.E.2d 5; State v. Towery, 239 N.C. 274, 79 S.E.2d 513; State v. McGee, 237 N.C. 633, 75 S.E.2d 783; State v. Trantham, 230 N.C. 641, 55 S.E.2d 198. Decisions of the Supreme Court of the United States make it clear that it does not, on its face, violate the provisions of the Fourteenth Amendment to the Constitution of the United States. Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S. Ct. 1135, 6 L. Ed. 2d 551, rehear. den., 368 U.S. 869, 82 S. Ct. 21, 7 L. Ed. 2d 69; McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393; Silver v. Silver, 280 U.S. 117, 50 S. Ct. 57, 74 L. Ed. 221; Dominion Hotel v. Arizona, 249 U.S. 265, 268, 39 S. Ct. 273, 63 L. Ed. 597; Patsone v. Commonwealth of Pennsylvania, 232 U.S. 138, 144, 34 S. Ct. 281, 58 L. Ed. 539.

The plaintiffs contend that notwithstanding the validity of the ordinance, upon its face, it has been rendered void and they are entitled to an injunction against its enforcement because the city officials have discriminated against the plaintiffs in its enforcement. They allege that, from the date of the adoption of the ordinance to the present time, the city executives and law enforcement authorities have "intentionally, purposely, unjustly and illegally discriminated between plaintiffs and their competitors by selective enforcement * * against plaintiffs and their employees while openly permitting violations of said ordinance by competitors and their employees," both by permitting other non-exempt business establishments to open for operation on Sunday and by permitting exempt and non-exempt establishments to sell on Sunday types of merchandise which the ordinance forbids to be sold on Sunday in any establishment. The truth of this allegation is admitted, for the purpose of this appeal, by the demurrer.

This Court has said that the principle of the equal protection of the law, made explicit in the Fourteenth Amendment to the Constitution of the United States, was also inherent in the Constitution of this State even prior to the revision thereof at the General Election of 1970. State v. Glidden Co., 228 N.C. 664, 46 S.E.2d 860; State v. Fowler, 193 N.C. 290, 136 S.E. 709. By the above mentioned revision, it has now been expressly incorporated in Art. I, § 19, of the Constitution of North Carolina.

This constitutional protection against unreasonable discrimination under color of law is not limited to the enactment of legislation. It extends also to the administration and the execution of laws valid on their face. Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220; Ex Parte Virginia, 100 U.S. 339, 25 L. Ed. 676.

In the Yick Wo case the Court said, "Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution." That was a habeas corpus proceeding brought by a Chinese, imprisoned because he operated a laundry in a wooden building in the City of San Francisco in violation of a city ordinance. The ordinance prohibited operation of a laundry, except in a brick or stone building, without a permit granted by the city's Board of Supervisors. It was admitted that the petitioner, and 200 of his countrymen similarly situated, had petitioned the board for permission to continue their businesses in the same houses in which they had been operating laundries for many years, in accordance with health and fire regulations, and that all petitions from Chinese applicants had been denied, whereas all, save one, of the applications for permits from persons not Chinese had been granted. The Supreme Court of the United States noted that the ordinance provided no standards for the guidance of the board and, therefore, conferred upon it the power to give or withhold permits arbitrarily. However, as above noted, the Court declared that the discriminatory administration of the ordinance was a denial of the equal protection of the law and required the discharge of the prisoner from state custody.

One who violates a law, valid upon its face, does not bring himself within the protection of the Yick Wo rule merely by showing that numerous other persons have also violated the law and have not been arrested and prosecuted therefor. Mere laxity, delay or inefficiency of the police department, or of the prosecutor, in the enforcement of a statute or ordinance, otherwise valid, does not destroy the law or render it invalid and unenforceable. Even selective enforcement does not have that effect if it has a reasonable relation to the purpose of the legislation, such as making efficient use of police man power by concentrating upon the major sources of the criminal activity. 16 Am.Jur.2d, Constitutional Law, § 541; Comment, "The Right to Nondiscriminatory Enforcement of State Penal Laws," 61 Columbia L.Rev. 1103, 1113. The writer of this law review comment observes, at p. 1119, "A long line of decisions in many jurisdictions has established the prosecutor's broad power to choose whom to prosecute after weighing such factors as the likelihood of successful prosecution, the social value of obtaining a conviction as against the time and expense to the state, and his own sense of the justice in the particular case."

In Snowden v. Hughes, 321 U.S. 1, 64 S. Ct. 397, 88 L. Ed. 497, rehear. den., 321 U.S. 804, 64 S. Ct. 778, 88 L. Ed. 1090, the Supreme Court of the United States, speaking through Chief Justice Stone, said:

"The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination."

Such discriminatory purpose is not presumed. Tarrance v. Florida, 188 U.S. 519, 23 S. Ct. 402, 47 L. Ed. 572. The good faith of the officers is presumed and the burden is upon the complainant to show the intentional, purposeful discrimination upon which he relies. See: Mackay Telegraph & Cable Co. v. City of Little Rock, 250 U.S. 94, 39 S. Ct. 428, 63 L. Ed. 863; Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 38 S. Ct. 495, 62 L. Ed. 1154; Snowden v. Hughes, supra. For the purposes of this appeal, however, the requisite purposeful, intentional discriminatory enforcement is admitted by the demurrer to the complaint and must, therefore, be taken as established.

Nothing else appearing, the enforcement of an ordinance, by the criminal prosecution of those who violate it, will not be enjoined in a suit brought by an acknowledged violator, whose contention is that the ordinance is invalid or that it is administered or enforced in a discriminatory manner. His right to present this defense at his trial on the criminal charge, or to maintain a civil action for damages, is deemed to constitute an adequate remedy at law. See: Jarrell v. Snow, 225 N.C. 430, 35 S.E.2d 273; McCormick v. Proctor, 217 N.C. 23, 6 S.E.2d 870; Cohen v. Commissioners of Goldsboro, 77 N.C. 2. Where, however, a plaintiff's legitimate business is threatened with destruction, through an announced purpose of making repeated arrests of his employees or customers and charging them with the violation of an allegedly invalid law, a suit for injunctive relief is an appropriate procedure for testing the constitutionality of the law, or of the contemplated enforcement program. See, Dixie Poster Advertising Co. v. City of Asheville, 189 N.C. 737, 128 S.E. 149. See also, the above cited comment in 61 Columbia L.Rev. 1103, 1133, 1136.

We hold that the plaintiffs have alleged in their complaint facts which, if true, entitle them to injunctive relief. It was, therefore, error to sustain the defendants' demurrer to the complaint on the ground that the complaint did not allege facts constituting a cause of action.

We further hold that the City of High Point has the authority to enforce, in a constitutional manner, the ordinance in question. The past discriminatory enforcement practices alleged in the complaint, if true, do not render the ordinance presently void or unenforceable.

We further hold that the restraining order entered in the Superior Court was improvidently granted and the defendants' motion in this Court to vacate the same is hereby allowed. The restraining order enjoined the defendants from enforcing or giving any effect whatever to the ordinance. Assuming the truth of all allegations of the complaint, with reference to past discrimination in the enforcement of the ordinance, the restraining order went far beyond the relief to which the plaintiffs were entitled. It left no way for a new, or a repentant, city administration to begin a general, nondiscriminatory enforcement of this valid ordinance. Past selective enforcement, even though purposefully and intentionally discriminatory, does not estop the city from inaugurating and carrying out a nondiscriminatory enforcement policy and program. At the most, the plaintiffs would be entitled to no more than an order restraining the defendants from enforcing the ordinance against these plaintiffs so long as they continue the discriminatory practices alleged in the complaint.

The judgment of the Court of Appeals is, therefore, reversed, the restraining order is vacated and the matter is remanded to that Court with direction to enter a judgment further remanding it to the Superior Court for the entry of a judgment overruling the demurrer to the complaint and allowing the defendants to file their answer.

Reversed and remanded.