City of Ashland v. Heck's, Inc.

• Decision Date: 29 April 1966
• Citation: City of Ashland v. Heck's, Inc., 407 S.W.2d 421 (Ky. 1966)
• Court: Supreme Court of Kentucky
• Parties: CITY OF ASHLAND, Kentucky, et al., Appellants, v. HECK'S, INC., and James McCann, Manager, Appellees.

Page 421

407 S.W.2d 421

CITY OF ASHLAND, Kentucky, et al., Appellants, v.HECK'S, INC., and James McCann, Manager, Appellees.

Court of Appeals of Kentucky.

April 29, 1966.

A. W. Mann, Arthur T. Bryson, Jr., Ashland, for appellant.

H. David Hermansdorfer, Diederich & Hermansdorfer, Ashland, for appellee.

PALMORE, Judge.

The core question in this case is whether the Sunday closing law, KRS 436.160, can be enforced against a department store, or so-called 'discount house,' while other establishments variously denominated as 'pharmacies' or 'drug stores,''groceries,''supermarkets' and 'car washes,' some of which sell many of the same types of merchandise as the discount house, are openly permitted to do business as usual on Sunday.Obedient to the precept of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220(1886), the chancellor adjudged such enforcement to be unlawfully discriminatory under the equal protection clause of the 14th Amendment of the United States Constitution.¹

Shortly after it was decided in Arlan's Dept. Store of Louisville v. Commonwealth, Ky., 369 S.W.2d 9(1963), that a department store is not a 'work of necessity' excepted by KRS 436.160(1), it became known to the merchants, Chamber of Commerce, and public officials of Ashland that the appelleeHeck's, Inc., a West Virginia corporation, intended to open a store in Ashland and do business on Sundays.Various meetings were held and discussions were had in which the Mayor of Ashland advised the president of Heck's that the Sunday law would be enforced.Heck's agreed to remain closed on Sunday provided the law would be equally enforced.Other merchants who had customarily remained open on Sunday evidently were disturbed, and early in September of 1963 the Mayor issued a palliative statement in which he said, among other things, that although grocery stores are not specifically exempted by the statute, 'they always have been considered as work of necessity.This has never been challenged in the courts.'²In this statement it was made clear that the enforcement policy was to be directed at department stores, and particularly any firm that might, while complying with a similar law in West Virginia, expect to evade the law in Kentucky.Later on, ³ after conferring with the Mayor and commissioners of the city, the executive secretary of the Chamber of Commerce issued an 'Open Letter to Business Houses Which Have Been Open on Sundays in Ashland for Many Years' reiterating some of the comments made in the Mayor's statement and containing the following remark:

'There has never been any desire to interfere with the operation of any business which, historically, has been in operation here on Sundays and which has not had its 'operation of a necessity,' or lack thereof, argued before the Appellate Court of the Commonwealth of Kentucky.'

Heck's remained closed on the six Sundays between September 8, 1963, and October 13, 1963, inclusive, and although numerous other establishments of the kinds heretofore mentioned continued to do business on those days, no arrests were made or citations issued against any of those so engaged.Heck's then opened on Sunday, October 20, 1963, and remained open on the following four Sundays.On each of these five Sundays citations were issued against various employee of Heck's.Citations were issued also against the operators of several of the other and previously unmolested businesses.As the chief of police testified, on the first Sunday Heck's opened, 'that is the Sunday I enforced the law.'Some 50 or 60 cases, including six against Heck's personnel, came on for trial in the city police court on November 20, 1963.The six cases involving employes of Heck's were tried and the court pronounced a fine of $50 and costs in each.All the other cases were either dismissed (some for good cause, as in the instance of 'filling stations,' which are specifically excepted from the operation of the statute) or continued indefinitely.One was continued even after the defendant, a grocery store clerk, had entered a guilty plea.

This proceeding was filed by Heck's and its manager (one of the defendants tried on November 20) on November 29, 1963.The complaint demanded injunctive relief against the City of Ashland and its Mayor, Chief of Police, and Police Judge.The circuit court held two hearings, one on December 16, 1963, and the other on June 17, 1964.At the conclusion of the first hearing the chancellor dissolved a temporary injunction but declined to rule on the merits because he felt it was 'too early for this court to make a finding as to whether the law will or will not be enforced against all open violators.'He therefore ordered that the proceeding be continued until a later date 'at which time either or all parties may introduce further evidence on the merits.'

At the last hearing most of the cases still remained technically on the docket of the police court, ⁴ but from the testimony of the police judge given on that occasion it is obvious that in the absence of some authoritative determination to the contrary he will regard the Sunday operation of car washes, drug stores, groceries and markets as 'work of necessity.'Hence it is reasonably clear that if relief is denied in this action the employes of Heck's will be forced to comply with the law and all of the others in question will be treated as exempt.

As in Yick Wo, there is no question with respect to the validity of the statute the city is attempting to enforce against Heck's and its employes.So it was also in the case of City of Covington v. Gausepohl, 250 Ky. 323, 62 S.W.2d 1040(1933), in which the city was enjoined from discriminating in favor of farmers and hucksters and against storekeepers in the enforcement of an ordinance prohibiting the placing of boxes, barrels, baskets and merchandise upon its sidewalks.If there is any distinction between this and the Gausepohl casewe are unable to find it, and from the studious omission of any reference to it in their brief we assume the appellants labor under the same difficulty.

It was held in the Gausepohl case that instead of enjoining all enforcement of the ordinance involved the trial court'should only have enjoined the city from making discriminations in its enforcement.'Accordingly, the injunction decreed in this case was made subject to the express proviso that it 'shall in no wise interfere with the arrest and prosecution of plaintiffs or any of their employees when such arrest and prosecution are part of the just and equal enforcement of KRS 435.160 against all known violators.'

Athwart the argument that injunctive relief cannot be had in this type of case lies the hard fact that in Gausepohl it was.See alsoPurnell v. Maysville Water Company, 193 Ky. 85, 234 S.W. 967, 23 A.L.R. 223(1921), andCity of Harrodsburg v. Southern Ry. Co. in Kentucky, 278 Ky. 10, 128 S.W.2d 233(1939), in each of which criminal proceedings were restrained.Whether the proceeding is an attempt to enforce an invalid law or to enforce a valid law in an invalid manner makes no logical difference.'The rule that equity does not enjoin criminal proceedings is not an invariable one.Cases may and do arise which call for such relief.It may be justified by exceptional circumstances and by the necessity to afford adequate protection to constitutional rights.'28 Am.Jur. 748(Injunctions, § 238).How else is the guaranty of equal protection to be enforced?Rarely could it be done in the course of each individual prosecution, because, as it was remarked in Ex parte Commonwealth of Virginia, 100 U.S. 313, 319, 25 L.Ed. 667, 669(1880), 'the violation of the constitutional provisions, when made by the judicial tribunals of a State, may be, and generally will be, after the trial has commenced.It is then, during or after the trial, that denials of a defendant's right by judicial tribunals occur.* * * Nor can the defendant know until then that the equal protection of the laws will not be extended to him.Certainly, until then he cannot affirm that it is denied, or that he cannot enforce it, in the judicial tribunals.'

With respect to the argument that as admitted violators of the law the plaintiffs do not have clean hands and thus are not entitled to equitable relief, we think the answer is that if a person singled out for prosecution under a law that is not being enforced against anyone else could be denied relief because he stands in violation of that law, in practical effect the qual protection clause of the 14th Amendment could never be invoked against any arbitrary and wilful discrimination in the enforcement of criminal laws.That simply cannot be.

In Cohen v. Webb, 175 Ky. 1, 192 S.W. 828, 830(1917), it was said that criminal prosecutions cannot be enjoined unless property rights are involved and it is necessary in order to prevent a multiplicity of suits and consequent irreparable injury.In view of the later opinions heretofore cited it must be concluded that Cohen has been overruled.⁵

In Strand Amusement Co. v. City of Owensboro, 242 Ky. 772, 47 S.W.2d 710(1932), the plaintiffs attacked a city ordinance imposing penalties for the operation of commercialized amusement on Sunday.This court held they had no standing in equity because, regardless of whether the ordinance was valid, they were in violation of the state law on the subject.The case did not, however, as in Gausepohl and this, involve a tenable and valid claim of unconstitutional discrimination.The same distinciton applies to Gastineau v. Bradley, Ky., 249 S.W.2d 529(1952).

Appellants portray appellee's theory of relief in terms of...