Arrigo v. City of Lincoln

• Decision Date: 29 June 1951
• Docket Number: No. 33003,33003
• Citation: 48 N.W.2d 643,154 Neb. 537
• Parties: ARRIGO et al. v. CITY OF LINCOLN et al.
• Court: Nebraska Supreme Court

Page 643

48 N.W.2d 643

154 Neb. 537

ARRIGO et al. v. CITY OF LINCOLN et al.

No. 33003.

Supreme Court of Nebraska.

June 29, 1951.

Syllabus by the Court.

1. A municipal corporaton may legislate reasonably with respect to Sunday observance within its corporate area.

2. A prohibition of activities on Sunday is for the promotion of health, peace, and good order of society by requiring a periodical day of rest and is generally sustained on the ground that it is within the domain of police power.

3. A city ordinance to meet constitutional requirements must respond to the tests required of statutory enactments.

4. The Legislature may make a reasonable classification of persons, corporations, and property for purposes of legislation concerning them, but the classification must rest upon real differences in situation and circumstances surrounding the members of the class, relative to the subject of the legislation, which render appropriate its enactment; and to be valid the law must operate uniformly and alike upon every member of the class so designated.

5. Within the jurisdiction of each there is no distinction between an unreasonable and arbitrary statute and an ordinance containing these characteristics.

6. To establish arbitrary discrimination inimical to constitutional equality, there must be more than an intentional and repeated failure to enforce legislation against others as it is sought to be enforced against the person claiming discrimination.

7. Failure to consistently enforce or abuse in the enforcement of an ordinance does not destroy it or affect its validity.

8. If a city ordinance contains valid and void provisions, the valid portion will be upheld if it is a complete law, capable of enforcement, and is not dependent upon that which is invalid.

Charles W. Phillips, Lincoln, for appellants.

R. A. Vestecka, Lincoln, amicus curiae.

John Jacobson, C. Russell Mattson, Lincoln, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

This appeal concerns the validity of a Sunday closing ordinance of the city of Lincoln. A general demurrer of appellees to the petition of appellants was sustained, the case was dismissed, and a motion for new trial was denied. The appeal tests the correctness of the rulings and conclusion of the district court.

The substance of the petition is that: Appellants own and operate in the city of Lincoln grocery stores and markets known respectively as Jim Arrigo's Market, Midwest Fruit Company, Ranch Market, and Bob's Fruit Market. The city is a municipal corporation of Nebraska of the primary class and has a home rule charter. The individual appellees, except Beck, the Attorney General, are the mayor, councilmen, city attorney, director of public welfare, and chief of police of the city. The parts of the ordinance complained of are set out. The drug stores, fruit stores, cigar stores, bakeries, dairy stores, and ice cream parlors in the city, stock and sell in competition with appellants articles and items of merchandise ordinarily handled and sold in grocery stores, and the sale thereof is not forbidden by the ordinance. The ordinance prohibits appellants from having their respective places of business open and from selling any of the articles or items on Sunday. Their business activity is not unlawful in itself and the sale by and from their places of business of such items and articles is no more injurious to the health, comfort, and safety of the public, no more offends public morality, and no more disturbs the observance of Sunday than does the sale thereof by businesses exempted from or excepted by the ordinance. Two of the appellants and others similarly situated have been charged with violation of the ordinance. They have been advised by officers of the city that a multiplicity of prosecutions will be instituted against them for violations, and they will be caused great expense and irreparable loss and injury unless the validity of the ordinance is adjudicated and appellees are enjoined from attempting to enforce it. The ordinance is unreasonable, arbitrary, discriminatory, class legislation, and violates the federal and state constitutions. Appellants seek an adjudication of invalidity of the ordinance and an injunction prohibiting its attempted enforcement.

The parts of the ordinance pertinent to a consideration and disposition of the case are: 'It shall be unlawful for any business house, bank, store, or any office to be open, or for any person, or persons, to be admitted thereto for general business on the first day of the week commonly called Sunday; and it shall be unlawful on said day to open any grocery store to the public, or to sell, offer to sell, give away, or dispose of in any way from any store, or building, where groceries are sold, any groceries or articles ordinarily sold in a grocery store, or to open any meat market, or to sell, offer to sell, give away, or dispose of in any way any meats or other products ordinarily sold or handled in meat markets, and all such stores and meat markets shall be closed on said day; provided, that nothing herein contained shall apply to drug stores, office of physicians, telegraph offices, express offices, photograph galleries, railroad offices, telephone offices, hotels, restaurants, cigar stores, eating houses, ice cream parlors, fruit stores that serve and sell, during the week, only refreshments, fresh fruits, bread and milk, places for the vending of ice, bread and milk, street cars, railway passenger trains, livery stables, automobile service stations and garages, all of which may be open for necessary purposes; but, nothing herein contained shall be construed to permit on Sunday any of the places herein exempted to sell, offer to sell, give away, or dispose of in any way any groceries or articles ordinarily sold from a grocery store, or any meat or other products ordinarily sold from and handled in meat markets, except fresh fruits, ice, bread and milk, * * * that works of necessity and charity are excepted from the operation of this ordinance; and * * * (it) shall (not) extend to those who conscientiously observe * * * and keep closed their * * * place of business on the seventh day of the week * * *.' S. 42-103, Lincoln Municipal Code of 1936. 'Any person violating any of the provisions of the foregoing * * * shall on conviction thereof, be fined * * * not less than Twenty-five ($25.00) Dollars, nor more than One Hundred ($100.00) Dollars * * * and shall stand committed to the city jail until such fine and costs are paid.' S. 42-104, Lincoln Municipal Code of 1936.

A municipal corporation by virtue of its police power may legislate reasonably with respect to Sunday observance within its corporate limits, and such an ordinance is valid if it does not violate any constitutional guarantee or does not conflict with the general laws of the state. The prohibition of specified acts on Sunday is for the promotion of health, peace, and good order of society by requiring persons to have a periodical day of rest and is generally sustained on the ground that it is within the domain of the police power. Such a regulation is essentially civil and not religious. Stewart Motor Co. v. City of Omaha, 120 Neb. 776, 235 N.W. 332; State v. Somberg, 113 Neb. 761, 204 N.W. 788; Liberman v. State, 26 Neb. 464, 42 N.W. 419, 18 Am.St.Rep. 791; Ernesti v. City of Grand Island, 125 Neb. 688, 251 N.W. 899; Levering v. Williams, 134 Md. 48, 106 A. 176, 4 A.L.R. 374; 50 Am.Jur., Sundays and Holidays, § 7, p. 805, § 10, p. 809.

An ordinance of the character of the one involved in this case must be based upon a classification which is not unreasonable or arbitrary. It cannot be class legislation. The demand of the organic law is that all similarly stituated must be included and none may be excluded whose relationship to the subject matter cannot by reason be distinguished from that of those included. There is a legal presumption in favor of the reasonableness of a city ordinance unless the contrary inheres therein or is shown by evidence. It is competent for a city by ordinance to make a classification, but to be valid it must rest upon some reason of public policy, some substantial difference of...