City of Hot Springs v. Gray

• Decision Date: 02 May 1949
• Docket Number: 4-8800
• Citation: 219 S.W.2d 930,215 Ark. 243
• Parties: City of Hot Springs v. Gray
• Court: Arkansas Supreme Court

219 S.W.2d 930

215 Ark. 243

City of Hot Springs v. Gray

No. 4-8800

Supreme Court of Arkansas

May 2, 1949

Appeal from Garland Circuit Court; Clyde H. Brown, Judge.

Reversed.

A D. Shelton and Mallory & Rasmussen, for appellant.

Leland F. Leatherman, for appellee.

Holt J. Griffin Smith, C. J. and Justices McFaddin and George Rose Smith concur.

OPINION

Holt J.

April 27, 1948, the City of Hot Springs enacted the following Ordinance: "ORDINANCE NO. 2186 -- AN ORDINANCE PROHIBITING THE OPERATION OF CERTAIN GROCERY STORES AND/OR MEAT MARKETS ON SUNDAY AND FOR OTHER PURPOSES.

"WHEREAS, a custom has recently arisen in the City of Hot Springs whereby a large number of employees have been required to perform services on Sunday in various large grocery stores and/or meat markets, which has deprived said employees of their day of rest and worship, and,

"WHEREAS, this condition is intolerable by reason of the exacting duties required of said employees and should be remedied.

"NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF HOT SPRINGS, ARKANSAS:

"SECTION 1. Every person who shall, on Sunday, keep open any grocery store and/or meat market, which is staffed, maintained and/or operated by more than two persons, whether owners and/or employees, or retail any goods, wares or merchandise therefrom, or who shall keep the doors of the same so as to afford ingress or egress, shall, on conviction thereof be fined in any sum not less than twenty-five dollars nor more than one hundred dollars; provided that charity or necessity on the part of the customer may be shown in justification of the violation of this ordinance.

"The purpose of this ordinance is to prohibit the operation of grocery stores and/or meat markets on Sunday where more than two persons, whether owners and/or employees are required to staff, maintain and operate same.

"SECTION 2. All ordinances or parts of ordinances in conflict herewith are hereby repealed.

"SECTION 3. It is found and declared in many instances in the City of Hot Springs that the employees of the larger grocery stores and/or meat markets are forced to work in said stores and/or meat markets on Sundays and are thereby denied their right to attend church services and are denied their day of rest and worship, and it is further found and declared that there is no inspection on Sundays of fresh meats, goods, wares and merchandise sold by said stores, which creates a health hazard, and because of these conditions and this ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist, and this ordinance shall be in full force and effect from and after its passage and approval."

On May 8, thereafter, appellee, Gray, was convicted in the Municipal Court of that city of violating this ordinance and fined $ 25. He was thereafter twice tried and convicted for two other separate and similar offenses and fined $ 25 in each of these cases. On appeal to the Circuit Court, the three charges were, by agreement, consolidated for trial.

It was stipulated that appellee operated a grocery store in Hot Springs, that more than two persons were employed therein, and that the facts were the same in each of the three cases.

Appellee defended on the ground that the ordinance, supra, was void and unconstitutional. The trial court sustained appellee's contention. The decree recites: "The ordinance is declared unconstitutional, and the convictions of the defendant by the Municipal Court of Hot Springs are reversed and the appeals dismissed."

From the judgment comes this appeal.

We have many times announced the rule that: "'Counties, cities and towns, * * * are municipal corporations, created by the authority of the Legislature; and they derive all their powers from the source of their creation, except where the Constitution of the State otherwise provides.'" Eagle et al v. Beard et al, 33 Ark. 497, and in Kitchens v. Paragould, 191 Ark. 940, 88 S.W.2d 843, we said: "We must say, when the issue is properly presented, whether legislation is in conflict with provisions of the Constitution. Ordinarily we look only to the statutes to determine what powers have been delegated to cities and towns. We regard as axiomatic that cities and towns are creatures of the Legislature, subject to its control, and that they can function only within the limits fixed by law. Eagle v. Beard, 33 Ark. 497."

Section 41-3802, Ark. Stats. (1947) enacted more than a century ago, provides: "Keeping store or doors open on Sunday -- Penalty. -- Every person who shall, on Sunday, keep open any store or retail any goods, wares and merchandise, or keep open any dram shop or grocery, or who shall keep the doors of the same so as to afford ingrees (ingress) or egrees (egress), or retail or sell any spirits or wine, shall, on conviction thereof, be fined in any sum...