Clark's Charlotte, Inc. v. Hunter, 252

• Decision Date: 31 January 1964
• Docket Number: No. 252,252
• Citation: 261 N.C. 222,134 S.E.2d 364
• Parties: CLARK'S CHARLOTTE, INC., a corporation, and Atlantic Mills of N. C., Inc., a corporation, on behalf of themselves and such other persons, firms and corporations as are similarly affected by an Ordinance Amending Chapter 13, Article IV, Section 13-56 of the Code of the City of Charlotte, to Provide for the Due Observance of Sunday, as amended, v. J. Clyde HUNTER, Sheriff of Mecklenburg County, John Hord, Chief, Charlotte Police Department, and G. A. Stephens, Chief, Mecklenburg County Rural Police Department.
• Court: North Carolina Supreme Court

Page 364

134 S.E.2d 364

261 N.C. 222

CLARK'S CHARLOTTE, INC., a corporation, and Atlantic Mills of N. C., Inc., a corporation, on behalf of themselves and such other persons, firms and corporations as are similarly affected by an Ordinance Amending Chapter 13, Article IV Section 13-56 of the Code of the City of Charlotte, to Provide for the Due Observance of Sunday, as amended, v. J. Clyde HUNTER, Sheriff of Mecklenburg County, John Hord Chief, Charlotte Police Department, and G. A Stephens, Chief, Mecklenburg County Rural Police Department.

No. 252

Supreme Court of North Carolina.

Jan. 31, 1964

Warren C. Stack, Charlotte, for plaintiff appellant Clark's Charlotte, Inc.

John D. Shaw, Charlotte, for plaintiff appellant Atlantic Mills of N. C., Inc.

John T. Morrisey, Sr., and T. LaFontine Odom, Sr., Charlotte, for defendant appellee John Hord.

James O. Cobb, Jr., Charlotte, for defendant appellees J. Clyde Hunter and G. A. Stephens.

PARKER, Justice.

Plaintiffs have not excepted to any of the findings of fact made by Judge Brock, and they have not excepted to his first conclusion of law. They except to his second, third and fourth conclusions of law and to the judgment and assign them as error.

The challenged ordinance as amended has a general provision stating that it shall be unlawful to operate or carry on any business on Sunday in the city of Charlotte, with a second provision exempting certain specified types of business from the operation of the first provision and permitting them to remain open on Sunday, with a proviso that sporting events, etc., before 1:00 p. m. on Sunday where a fee is charged for admission are not exempt. Judge Brock's first conclusion of law, to which there is no exception in the record, is correct. This is one of the three principal types of Sunday closing legislation or ordinances. Humphrey Chevrolet v. Evanston, 7 Ill.2d 402, 131 N.E.2d 70, 57 A.L.R.2d 969.

Plaintiffs here, like the defendant in State v. McGee, 237 N.C. 633, 75 S.E.2d 783, and like the defendant in State v. Towery, 239 N.C. 274, 79 S.E.2d 513, appeal dismissed 347 U.S. 925, 74 S.Ct. 532, 98 L.Ed. 1079, do not contend that the challenged ordinance as amended discriminates against them insofar as it applies to any other person or persons engaged in the operation of a similar department store or stores or similarly situated. One of their principal grounds of attack upon the ordinance as amended is that it is discriminatory, arbitrary and unreasonable, denies them the equal protection of the law, and deprives them of their property without due process of law, all in violation of their rights under the Fourteenth Amendment to the United States Constitution and under Article I, section 17, of the North Carolina Constitution, because it permits drug stores, food stores, restaurants, and other enumerated businesses to stay open and sell on Sunday some of the same goods that they as operators of large department stores sell, and denies them the privilege of opening their department stores and selling goods on Sunday. They rely upon Elliott v. State, 29 Ariz. 389, 242 P. 340, 46 A.L.R. 284; Mt. Vernon v. Julian, 369 Ill. 447, 17 N.E.2d 52, 119 A.L.R. 747, and similar cases.

As long ago as A.D. 321 Constantine the Great passed an edict commanding all judges and inhabitants of cities to rest on the venerable day of the sun. At an early date Sunday statutes were enacted in England, and 29 Charles II c. 7 has been made the basis of similar legislation in many of the states. A few such statutes were enacted in what is now the United States during colonial days. The observance of Sunday is recognized by constitutions and legislative enactments, both state and federal, and it is said Sunday prohibitory laws have been enacted in all the states. 83 C.J.S. Sunday § 3.

The general rule is that the enactment of Sunday regulations is a legitimate exercise of the police power, and that the classification on which a Sunday law is based is within the discretion of the legislative branch of the government or within the discretion of the governing body of a municipality clothed with power to enact and enforce ordinances for the observance of Sunday, and will be upheld, provided the classification is founded upon reasonable distinctions, affects all persons similarly situated or engaged in the same business without discrimination, and has some reasonable relation to the public peace, welfare and safety. State v. McGee, supra; State v. Trantham, 230 N.C. 641, 55 S.E.2d 198; 83 C.J.S. Sunday, § 3, c. and d. Anno. 119 A.L.R. p. 752.

'While the statute [a statute prohibiting public selling on Sunday except in enumerated cases] may not be perfectly symmetrical in its pattern of exclusions and inclusions, the equal protection of the laws does not require a Legislature to achieve 'abstract symmetry' Patsone v. Commonwealth of Pennsylvania, 232 U.S. 138, 144, 34 S.Ct. 281, 58 L.Ed. 539, or to classify with 'mathematical nicety."' People v. Friedman, 302 N.Y. 75, 96 N.E.2d 184. This principle of law also is applicable to a municipal ordinance prohibiting public selling on Sunday, except in enumerated cases, when the governing body of the municipality is clothed with the power to enact and enforce ordinances for the observance of Sunday.

In McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393, which was a case concerning the constitutional validity of certain Maryland criminal statutes commonly known as Sunday Closing Laws or Sunday Blue Laws, the Court said:

'Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.'

There are a line of cases, such as Mt. Vernon v. Julian (Ill.), supra, which is reported and annotated in 119 A.L.R. 747 and which is cited in the annotation in 57 A.L.R.2d 987, upon which plaintiffs rely, that take the position because a drug store might sell some of these things that the grocers or these others sell then the Act is discriminatory and unconstitutional. This Court by the present Chief Justice has answered the arguments of the Mt. Vernon v. Julian (Ill.) case, and others that hold to the same effect, in State v. Towery, supra.

In this case Towery was tried and convicted in the superior court, on appeal from the municipal court of the city of High Point, on a warrant charging him, the operator of a curb market, with keeping his curb market open on Sunday for the purpose of selling his goods, and with selling on Sunday tomatoes, peaches and toilet paper, in violation of a city ordinance. The city ordinance prohibited the operation of businesses on Sunday and exempted from its operation hotels, restaurants, delicatessen and sandwich shops, and the like 'furnishing meals and selling bread, cooked or prepared meats incidental to the operation of such business'; ice cream or confectionery stores 'furnishing ice cream, cigars, tobacco, nuts and soft drinks only'; cigar stands and newsstands 'furnishing cigars, tobacco, candies, nuts, newspapers, magazines and soft drinks only'; drug stores 'furnishing medical or surgical supplies, cigars, tobacco, ice cream, candies, nuts, soft drinks, newspapers and magazines'; and certain others. (Italics ours.) Defendant operated a curb market and, according to his own testimony, sold 'practically everything that is sold in a general grocery store or a super market.'

The present Chief Justice writing for the Court the opinion in the Towery case said:

'It would seem that the reasoning of the Illinois Court [Mt. Vernon v. Julian] ignores the right of a municipality in adopting a Sunday closing ordinance to discriminate as between classes, State v. Trantham, 230 N.C. 641, 55 S.E.2d 198, but instead makes the question of competition or the right generally to conduct a business the determinative factor.

'The defendant here, like the defendant in State v. McGee, supra [237 N.C. 633, 75 S.E.2d 783], does not claim that the ordinance discriminates against him in so far as it applies to any other person or persons similarly situated. He simply claims that the business establishments permitted to remain open on Sunday sell certain articles of merchandise similar to those which he sells, therefore, he says they are his competitors. He falls into error in undertaking to make competition as between classes the test rather than discrimination within a class.

'Moreover, it will be noted that in the ordinance under consideration, the exemption as to cafes, delicatessens and sandwich shops is limited to those furnishing meals and selling bread, cooked or prepared meats incidental...