280 F.Supp. 406 (D.S.C. 1968), Civ. A. 67-771, Whitney Stores, Inc. v. Summerford

Docket Nº:Civ. A. 67-771
Citation:280 F.Supp. 406
Party Name:Whitney Stores, Inc. v. Summerford
Case Date:January 23, 1968
Court:United States District Courts, 4th Circuit, District of South Carolina
 
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280 F.Supp. 406 (D.S.C. 1968)

WHITNEY STORES, INC., and Robert H. Johnson, Plaintiffs,

v.

T. Kenneth SUMMERFORD, Solicitor for the Twelfth Judicial Circuit of the Stateof South Carolina, E. A. McLeod, Sheriff of Florence County, and T. E. Rogers,Jr., Magistrate, Defendants, and Belk's Department Store of Camden, SouthCarolina,Inc., Collins Department Stores, Inc., and South Carolina Retail Council, Inc.,Intervenor-Defendants.

Civ. A. No. 67-771.

United States District Court, D. South Carolina

Jan. 23, 1968

Decided Feb. 12, 1968.

Page 407

Eugene N. Zeigler, Florence, S.C., for plaintiffs.

Daniel R. McLeod, Atty. Gen., State of South Carolina, and Everett N. Brandon, Asst. Atty. Gen., State of South Carolina, Columbia, S.C., for defendants.

David M. McConnell, Charlotte, N.C., and David W. Robinson, II, Columbia, S.C., for intervenor-defendants.

Before HAYNSWORTH, Circuit Judge, and HEMPHILL and RUSSELL, District judges.

HEMPHILL, District Judge.

Plaintiffs, 1 insisting that Sections 64-2 through 64-2.52 of the South Carolina Code of Laws, as amended, are unconstitutional, ask a declaratory judgment of such in this court. They further seek judgment that a pattern of discriminatory enforcement exists, and position that the unconstitutional application and enforcement invite and deserve injunctive relief. As to plaintiffs' contentions of the unconstitutionality of the statutes, in themselves, this court does not agree. The district court will examine the facts bearing on discriminatory enforcement.

Complaint initiating this action was filed on October 26, 1967. Plaintiffs pitched on three allegedly separate and distinct causes of actions revolving around the South Carolina closing law 3

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more commonly referred to as the 'Blue Laws.'

In their first cause of action plaintiffs seek an injunction pendente lite and

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permanently. They assert that the defendants have subjected Whitney's employees to arrest and harassment; and that at the same time violations and enforcement have been overlooked against the competitors of the plaintiffs. Such action, plaintiffs claim, violate the equal protection of the laws clause of the Fourteenth Amendment to the Constitution of the United States of America. In the second cause of action, relief is sought on grounds that the Sunday closing laws are unconstitutional because the language is too vague and indefinite; further, that the fines for violations are so severe as to constitute cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments. A third cause of action seeks to enjoin alleged discriminatory enforcement as in violation of Civil Rights statute 1983 4 of Title 42, U.S.Code, and the Fourteenth Amendment.

Defendants Kenneth Summerford and others entered a general denial, pled the doctrine of abstention and alleged the plaintiff was not properly constituted to do business in this state. On January 12, 1968 Belk's Department Store of Camden, South Carolina, Inc., Collins Department Store, Inc., and South Carolina Retail Council, Inc. were allowed to intervene as defendants. They pled, additionally, that if § 64-2.1 and 64-2.2 are unconstitutional they are separable and not essential to the regulatory scheme prohibiting conduct of business on Sunday.

A temporary restraining order of October 26, 1967 was continued until the entire matter, including permanent injunctive relief, could be heard by a proper tribunal. A three-judge panel was then designated by Chief Judge Clement F. Haynsworth, Jr., of the United States Fourth Circuit Court of Appeals, in accordance with 28 U.S.C.A. § 2284. Arguments were scheduled for Greenville, South Carolina.

We first consider jurisdiction. Plaintiffs assert jurisdiction on grounds that the South Carolina Blue Laws are unconstitutional because of vagueness in classification of goods which can legally be sold on Sunday and vagueness of the statutory terms 'souvenirs and novelties.' 5 Plaintiffs also contend that the statutory provisions 'works of necessity' 6 are unconstitutionally vague and indefinite.

The statute requiring decision of a three-judge district court is to be strictly and narrowly construed, Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800, and it is elementary that the statute comes into play only when an injunction is brought to enjoin the enforcement of an unconstitutionally drawn statute. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512. Once a three-judge court panel has determined that no substantial federal question is involved the three-judge panel no longer has jurisdiction. Two Guys from Harrison-Allentown, Inc. v. McGinley, 179 F.Supp. 944 aff'd 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551 (D.C.E.D.Pa.1959).

Soon after the passage of the act in question, a prosecution in another but similar case was commenced. A conviction was secured, and the case was appealed to the Supreme Court of South Carolina, which affirmed, State v. Solomon, 245 S.C. 550, 141 S.E.2d 818, 14 A.L.R.3d 1277, primarily on the basis of McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961) ;

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Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961); and Gallagher v. Crown Kosher Super Mkt., 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536 (1961). An appeal to the Supreme Court of the United States was dismissed, Solomon...

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