Charles Stores Co. v. Tucker, 445
| Decision Date | 24 February 1965 |
| Docket Number | No. 445,445 |
| Citation | 140 S.E.2d 370,263 N.C. 710 |
| Parties | CHARLES STORES COMPANY, Inc. v. Justus M. TUCKER, Chief of Police for the City of Winston-Salem, North Carolina, M. C. Benton, Mayor of the City of Winston-Salem, and Floyd S. Burge, Jr., Archie Elledge, George W. Chandler, W. N. Schultz, Carl H. Russell, Carroll E. Poplin, Dr. Frank R. Shirley, and Douglas B. Elam, Members of the Board of Aldermen for the City of Winston-Salem, North Carolina. |
| Court | North Carolina Supreme Court |
Cannon, Wolfe & Coggin, Greensboro, Hatfield & Allman, Winston-Salem, for plaintiff.
Womble, Carlyle, Sandridge & Rice, Winston-Salem, for defendants.
The General Assembly, by G.S. § 160-52 and G.S. § 160-200(6), (7), and (10), has delegated to municipalities the power to enact ordinances requiring the observance of Sunday. In addition to these general powers granted to all municipalities, it has granted to the City of Winston-Salem in its charter the specific authority 'to regulate the due observance of Sunday.' N.C. Priv.L. (1927) ch. 232, § 37, p. 434. The provisions of the ordinance in question are quoted and summarized as follows:
'Sec. 26-1. Required.
'(a) It shall be unlawful for any person to sell, offer or expose for sale any goods, wares or merchandise in the city on Sunday, nor shall any store, shop, warehouse or any other place of business in which goods, wares or merchandise are kept for sale, be kept open between 12:00 midnight Saturday and 12:00 midnight Sunday, unless such store, shop, warehouse or other place of business is expressly allowed to open and sell goods under the provisions of this chapter; provided, however, that notwithstanding any other provisions of this chapter, on Sunday no such store, shop, warehouse or other place of business shall sell, offer or expose for sale any of the following:
'(1) Clothing and wearing apparel;
'(2) Clothing accessories;
'(3) Furniture, housewares, home, business, or office furnishings;
'(4) Household, business or office appliances;
'(5) Hardware, tools, paints building and lumber supply materials;
'(6) Jewelry, silverware, watches, clocks, luggage, musical instruments or recordings.
'(b) Each separate sale or offer to sell shall constitute a separate offense.
* * *
* * *
'Cigar and tobacco stores or stands and newsstands may keep open on Sunday for the sale of tobacco, tobacco products, papers and periodicals and accessories, together with soft drinks, ice cream, candy and cakes.
'Drug stores having a licensed pharmacist may keep open on Sunday for all purposes, including the operation of soda fountains located therein.
* * *
* * *
'Stands for the sale of fruits and melons may remain open on Sundays during the hours of 7:00 to 9:00 a.m. and from 12:00 noon to 12:00 midnight, and such establishments shall remain closed on Sunday except during these hours.
'Public garages and filling stations may be kept open for the hiring and storage of automobiles and for the sale of gasoline and oils, soft drinks, ice cream, candy, cakes and tobaccos at all hours.
The sections of ch. 26 not quoted above deal with matters not specifically involving plaintiff and others similarly situated. Section 2 permits bootblack stands to operate on Sunday. Section 3 authorizes the sale of Christmas greenery on Sundays during the month of December. Section 6 authorizes moving pictures, baseball, football, basketball, golf, tennis, dog and horse shows on Sunday and the sale of tickets to these performances between the hours of 12:30 p. m. and 12:00 midnight. All other sports and amusements are prohibited on Sunday. Soft drinks, ice cream, candy, cakes, wrapped sandwiches and tobacco may be sold on Sundays at all lawful exhibitions of baseball, football, basketball, golf or tennis. Section 10 permits hotels, boardinghouses, confectioneries, wiener stands, and cafes and restaurants, which 'are also conducted as restaurants or cafes on other days of the week,' to remain open. Section 11 permits manufacturers and dealers in ice to make sales of ice and certain deliveries. Section 12 permits manufacturers of ice cream, dairies and creameries to sell their products on Sundays. Section 13 authorizes the publication of newspapers and the sale of newspapers and magazines by newsstands or newsboys in the streets. Section 14 permits tobacco warehouses to open their doors on Sundays long enough to receive vehicles loaded with tobacco. Section 15 prohibits street sales of newspapers, and all other printed matter except programs for the service, from midnight until after the sunrise services of the Moravian Church on Easter Sunday in the area of the city involved in the services.
Winston-Salem Code § 1-8 makes the violation of any provision of ch. 26 punishable by a fine of $50.00 or 30 days' imprisonment for each separate violation. Each day any violation continues constitutes a separate offense.
These pertinent facts are alleged in the complaint and admitted by the demurrer: (1) plaintiff operates a general retail and wholesale merchandising store in the City of Winston-Salem, where it engages on week days and Sundays in the business of selling goods, wares and merchandise, the sale of some of the articles being absolutely prohibited on Sunday by said ch. 26; (2) the ordinance requires plaintiff and those similarly situated to close on Sunday, though permitting drugstores, food stores, tobacco stores and newsstands, which sell some of the items plaintiff also sells, to remain open on Sunday; (3) plaintiff, as well as those 'in whose behalf this class action is instituted, derives from each Sunday's sales of its merchandise a substantial dollar-volume of business'; (4) defendants will make or cause to be made, after the effective date of the ordinance, 'arrests of any persons, firms, or corporations (including plaintiff) herein for the violation of the aforesaid resolution and ordinance.'
Plaintiff avers that these repeated arrests under 'the continuing offense aspect' of the ordinance will result in a multiplicity of actions, fines and penalties, destroy the good will plaintiff has acquired in the community, damage the morale of personnel, and thereby subject plaintiff to irreparable damage for which it has no adequate remedy at law. It is plaintiff's contention that the ordinance violates the equal-protection clause of the Fourteenth Amendment to the Federal Constitution, as well as its due-process clause, and the synonymous law-of-the-land provision of the State Constitution, State v. Ballance, 229 N.C. 764, 51 S.E.2d 731, 7 A.L.R.2d 407, in that (a) its application does not affect all persons, firms or corporations engaged in operations similar to this of plaintiff; (b) the classification of articles prohibited by the ordinance is arbitrary and discriminatory; (c) the ordinance has no reasonable relationship to the public peace, welfare, safety, and morals; and (d) it is so indefinite and general that men of ordinary intelligence must differ as to its meaning.
These identical contentions were all made with reference to a similar ordinance, and overruled by this Court, in Clark's Charlotte, Inc. v. Hunter, 261 N.C. 222, 134 S.E.2d 364. The reasoning in that opinion is decisive of this case. In Clark's Charlotte, Inc., the Sunday-closing ordinance of the City of Charlotte withstood the challenge to its constitutionality by a plaintiff which, as here, operated a general merchandising business. The full text of the Charlotte ordinance appears at 261 N.C. 225, 134 S.E.2d 366. Briefly, it prohibited the operation of any business within the city and then entirely exempted from its operation certain businesses. In addition, it permitted 'drug stores furnishing medical or surgical supplies, food-stuffs, beverages, tobacco products, books, newspapers and magazines only; food stores furnishing food-stuffs, beverages, tobacco products, books, newspapers and magazines only' to remain open. The exempted businesses sold some of the same goods which Clark's Charlotte, Inc., as the operator of a large department store, sold. In general, that ordinance exempted those businesses rendering essential services or furnishing products considered as necessary for health or as contributing to the recreational aspect of Sunday.
The Winston-Salem ordinance under consideration imposes no ban upon either services or manufacturing. It merely prohibits merchandising in Winston-Salem on Sunday, and requires all places wherein merchandise is kept for sale to remain closed from Saturday midnight until Sunday midnight. It then exempts certain types of stores, stands, and businesses from the closing requirement. Some of these exempted businesses sell on Sunday some of the same articles which plaintiff sells. Drugstores having a licensed pharmacist are unrestricted; the other businesses are restricted either as to the hours of operation or as to products which may be sold, leased, or received for storage. No business permitted to open on Sunday, however, is permitted to sell any of the proscribed merchandise contained in the six categories listed in § 26-1.
Thus, it will be seen that both the Charlotte and the Winston-Salem ordinances generally prohibit a broad range of Sunday activities and then exempt specified activities. Ordinances prohibiting the exercise of all occupations generally...
To continue reading
Request your trial
-
Bertera's Hopewell Foodland, Inc. v. Masters
...stores); City of Hot Springs v. Gray, 215 Ark. 243, 219 S.W.2d 930 (1949) (semble). Contra, Charles Stores Co. v. Tucker, 263 N.C. 710, 140 S.E.2d 370 (1965); Kirk v. Olgiati, 203 Tenn. 1, 308 S.W.2d 471 (1957).4 The opinion in McGowan indicates that the Maryland statute now contains an add......
-
Goldston v. State
...of such action. It is not sufficient that he has merely a general interest common to all members of the public." Charles Stores v. Tucker, 263 N.C. 710, 140 S.E.2d 370. Id. at 447, 168 S.E.2d at 406. The Court also addressed the standing of taxpayers A taxpayer, as such, does not have stand......
-
State v. Mems, 2
...Assistance Authority, 275 N.C. 439, 168 S.E.2d 401; D & W, Inc. v. Charlotte, 268 N.C. 577, 151 S.E.2d 241; Charles Stores Co. v. Tucker, 263 N.C. 710, 140 S.E.2d 370. In this case, the State is a party litigant. Its right to introduce evidence, otherwise competent and vitally important to ......
-
State v. Underwood
...v. Tomlinson, 275 N.C. 1, 165 S.E.2d 236 (1969); Surplus Co. v. Pleasants, 264 N.C. 650, 142 S.E.2d 697 (1965); Charles Stores v. Tucker, 263 N.C. 710, 140 S.E.2d 370 (1965); Clark's Charlotte, Inc. v. Hunter, 261 N.C. 222, 134 S.E.2d 364 (1964); Surplus Store, Inc. v. Hunter, 257 N.C. 206,......