State v. Karmil Merchandising Corp.

• Citation: 158 Me. 450,186 A.2d 352
• Parties: STATE of Maine v. KARMIL MERCHANDISING CORP. STATE of Maine v. The FANTASTIC FAIR.
• Decision Date: 30 November 1962
• Court: Supreme Judicial Court of Maine (US)

Page 352

186 A.2d 352

158 Me. 450

STATE of Maine v. KARMIL MERCHANDISING CORP.

STATE of Maine v. The FANTASTIC FAIR.

Supreme Judicial Court of Maine.

Nov. 30, 1962.

Arthur Chapman, Jr., County Atty., Portland, Wayne B. Hollingsworth, Asst. Atty. Gen., Augusta, for plaintiff.

Robert F. Preti, Portland, for defendant Fantastic Fair.

Harold J. Rubin, Bath, for defendant Karmil Merchandising Corp.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD, and SIDDALL, JJ.

WILLIAMSON, Chief Justice.

On report. These cases involve the keeping open on Sunday of department stores known as 'The Fantastic Fair' located in South Portland and 'Brunswick Mill Outlet' located in Brunswick. The issues are the applicability and constitutionality of the Sunday Closing Law, so-called, enacted in 1961. P.L.1961, c. 362; R.S. c. 134, §§ 38, 38-A. Each case is reported to us on special demurrer to the complaint following appeal to the Superior Court from a judgment of guilty in the appropriate Municipal Court. One opinion will serve both cases.

The respondents contend that the 1961 Act is unconstitutional on two main grounds; first, that it is discriminatory and therefore violates the equal protection clauses of the State and Federal Constitutions, and second, that it is vague, uncertain, and impossible of interpretation and therefore violates the due process clauses of both Constitutions. A third point is that local option provision is an unconstitutional delegation of legislative authority. Minor differences in the presentation of the local option issue by Fantastic Fair and Brunswick Mill Outlet will be later noticed. A fourth issue is the contention of Fantastic Fair that if the 1961 Act is constitutional, then 'it is exempt from the operation of said Law by reason of the fact that it falls within the definition of a restaurant, drug stores, book stores, and/or a store selling gifts or souvenirs, and/or a 'work of necessity". Brunswick Mill Outlet makes the same contention without, however, including 'work of necessity.'

Two issues which have often arisen in connection with Sunday closing legislation are eliminated by agreement. It is conceded that the Sunday Closing Law is not in violation of the constitutional restrictions against establishment of religion and also that the Legislature has the authority to enact legislation providing for a day of rest. Lena T. Cleveland v. City of Bangor, 87 Me. 259, 32 A. 892; McGowan et al. v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393; Two Guys from Harrison-Allentown v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551; Gallagher v. Crown Kosher Super Market of Mass., 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536; Braunfeld et al. v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563. The constitutional issues will be tested within the framework of the exercise of the police power by reasonable regulation. City of Mt. Vernon v. Julian, 369 Ill. 447, 17 N.E.2d 52, 119 A.L.R. 747.

We turn first to the question of whether the respondent department stores are within a category exempt from Sunday closing. We proceed under the general rule that we do not reach an issue of constitutionality unless it becomes necessary for decision. If Fantastic Fair (or Brunswick Mill Outlet) is, as it asserts, exempt under the statute, then it has no reason to object to the statute on constitutional grounds.

It is apparent that on the issue of whether either respondent is an exempt store, we must consider like problems of vagueness, uncertainty, and impossibility of interpretation arising on the issue of due process. If it cannot be determined whether Fantastic Fair (or Brunswick Mill Outlet) in the operation conducted by it on the Sunday in question fell within or without the exemptions, then the statute must be held too vague and uncertain to meet the constitutional requirement of due process.

Fantastic Fair, in light of the complaint, pleadings, and stipulation, kept open on Sunday 'a general merchandise Department Store, known as 'The Fantastic Fair'.' The stipulation agreed upon by State and Fantastic Fair reads in part:

'That the Respondent, on the 11th day of March, 1962, a Sunday, did keep open its place of business to the public. That the Respondent's place of business in South Portland * * * on said day, was a retail store carrying as merchandise for retail sale various kinds and types of drugs and medicines, commonly sold in stores dealing only in drugs and medicines which may be known as 'drug stores'; books, magazines and writing materials, commonly sold in retail stores handling only books, magazines and writing materials, and perhaps being known as 'book stores'; food, which was kept, prepared and served upon the premises in the same manner as a place of business which might be known as a 'restaurant'; and that the Respondent's place of business on said day was a store selling gifts or souvenirs; that in addition to the aforesaid articles and items offered for sale on the premises of the Respondent on said day, the Respondent also offered for sale a general line of men's, women's and children's work clothing and work shoes and boots, as well as a general line of men's, women's and children's dress clothing and dress shoes, other types of wearing apparel, furniture, toys, hardware, including tools and supplies, electrical supplies and other miscellaneous merchandise.'

In the Brunswick Mill Outlet case the demurrer reads:

'That the Respondent, on the fifteenth day of April, 1962, a Sunday, did keep open its place of business to the public. That the Respondent's place of business in said Brunswick on said day was a retail store containing various kinds of merchandise, among the merchandise for sale in said place of business of the Respondent were drugs and medicines, commonly sold in drug stores; books, magazines, and writing materials, commonly sold in book stores; food, which was kept, prepared and served upon the premises, the same as in any restaurant; and that the Respondent's place of business on said day was a store selling gifts or souvenirs; that in addition to the aforesaid articles and items sold on the premises of the Respondent, the Respondent also sold other articles such as clothing, wearing apparel, furniture, toys, hardware, electrical supplies, and other general merchandise.'

There is no substantial difference in the nature of the stores operated by the respondents.

The Sunday Closing Law, P.L.1961, c. 362 (R.S. c. 134, §§ 38, 38-A) follows:

'Sec. 38. Operating business on the Lord's Day and certain holidays. No person shall on the Lord's Day, Memorial Day, July 4th, November 11th and Thanksgiving Day, as proclaimed by the Governor, keep open his place of business to the public except for works of necessity or charity.

'This section shall not apply to common, contract and private carriers; taxicabs; airplanes; radio and television stations; newspaper publishers; hotels, motels, rooming houses, tourist and trailer camps; restaurants; garages and motor vehicle service stations; retail monument dealers; automatic laundries; grocery stores; drug stores; book stores; stores selling gifts or souvenirs; greenhouses; roadside stands engaged in sale of farm produce or dairy products; public utilities; industries normally kept in continuous operation including but not limited to pulp and paper plants and textile plants; processing plants handling agricultural produce or products of the sea; ship chandleries; marinas; sports; athletic events; motion picture theaters; musical concerts; religious, educational, scientific or philosophical lectures; scenic, historic, recreational and amusement facilities.

'It is not intended by this section that any business or facility which is exempt from closing on the Lord's Day and the aforementioned holidays shall be permitted to remain open until it has complied with any other provision of this chapter which requires a vote of the municipality.

'Any person violating this section shall be punished by a fine of not more than $100 for the first offense, nor more than $200 for any subsequent offense occurring within one year following a conviction. No complaint charging violation of this section shall issue later than 5 days after its alleged commission.'

'Sec. 38-A. Local option. In any city or town that shall vote as hereinafter provided, it shall be lawful to keep open to the public on the Lord's Day and aforementioned holidays, other places of business not exempted under section 38. This provision shall not be effective in any municipality until a majority of the legal voters, present and voting at any regular election, so vote. The question in appropriate terms may be submitted to the voters at any such election by the municipal officers thereof, and shall by them be so submitted when thereto requested in writing by 100 legal voters therein at least 21 days before such regular election; nor shall it be effective in any town until an article in such town warrant so providing shall have been adopted at an annual town meeting. When a city or town has voted in favor of adopting the provisions hereof, said provisions shall remain in effect therein until repealed in the same manner as provided for their adoption.' The sense of the statute requires that we read 'or' for 'and.' R.S. c. 10, § 22.

It is immaterial for our purposes that the 1961 statute covers holidays as well as Sundays. We express no opinion whatsoever upon any issues which might arise with reference to holiday closing. It remains convenient, however, to refer to the statute as the 'Sunday Closing Law.'

We may eliminate from discussion certain categories listed in the statute. 'Works of necessity or charity' need not long detain us.

In State v. Morin, 108 Me. 303, at p. 306, 80 A. 751, at p. 752 (1911), in which a druggist was charged with keeping open his store, the Court said:

'The opening of his store and entering it for the purpose of furnishing...