Dart Drug Corp. v. Hechinger Co., Inc.

• Decision Date: 03 June 1974
• Docket Number: No. 298,298
• Citation: 320 A.2d 266,272 Md. 15
• Parties: , 74 Lab.Cas. P 53,381 DART DRUG CORPORATION et al. v. HECHINGER COMPANY, INC.
• Court: Maryland Court of Appeals

Page 15

272 Md. 15

320 A.2d 266, 74 Lab.Cas. P 53,381

DART DRUG CORPORATION et al. v. HECHINGER COMPANY, INC.

No. 298.

Court of Appeals of Maryland.

June 3, 1974.

Franklin Goldstein, Baltimore (Burke, Gerber & Wilen and Thomas J. Kenney, Baltimore, on the brief), for Drug Fair, Inc.

David Macdonald, Silver Spring (Macdonald & Manoogian, Silver Spring, on the brief), for Peoples Drug Stores, Inc.

James S. McAuliffe, Jr., Rockville (Heeney, McAuliffe & Rowan, Rockville, on the brief), for Dart Drug.

Victor L. Crawford, Rockville (Crawford & Goldberg, Rockville, on the brief), and Benny L. Kass, Washington, D. C. (Boasberg, Hewes, Klores & Kass, Washington, D. C., on the brief), for appellee.

Brian P. Phelan, Rockville, Harry A. Inman, David B. Robinson, Patton, Boggs & Blow, Washington, D. C., and James C. Tuttle, Bloomfield Hills, Mich., of the Bar of Michigan, on the brief, for amicus curiae, S. S. Kresge Co.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

SINGLEY, Judge.

In a sense, this case is a product of the result reached in Giant of Maryland, Inc. v. State's Attorney, 267 Md. 501, 298 A.2d 427, appeal dismissed, 412 U.S. 915, 93 S.Ct. 2733, 37 L.Ed.2d 141 (1973), where we decided that the Sunday closing law applicable to Prince George's County, Maryland Code (1957, 1971 Repl.Vol.) Art. 27, § 534H(c)(3), which exempted 'small business with not more than six persons on any one shift,' did not exempt a business which regularly employed more than six employees on a shift on weekdays, but reduced the number of employees on each shift on Sundays to six or less. There was a further holding that Giant could not avail itself of the exemption accorded drugstores, ¹ because although it operated a pharmacy within the store, its business was the general sale of food products.

An almost identical statute, Code (1957, 1971 Repl.Vol.) Art. 27, § 534J, which relates to Sunday activities in Montgomery County, similarly exempts small businesses with not more than six persons on any one shift and 'drugstores whose basic business is the sale of drugs and related items':

'(a) In Montgomery County, except as specifically in this section otherwise provided, it is unlawful on Sunday for any wholesale or retail establishment to conduct business for labor or profit in the usual manner and location or to operate its establishment in any manner for the general public. It shall not cause, direct, permit, or authorize any employee or agent to engage in or conduct business on its behalf on Sunday.

'(b) Notwithstanding any provision of this section, the operation of any of the following types of retail establishments is allowed on Sunday:

'1. Drugstores whose basic business is the sale of drugs and related items.

'(c) Nothing in this section applies to:

'2. Nurserymen

'3. Small business with not more than six (6) persons on any one shift with the exception of persons or retailers engaged in the sale of motor vehicles.

'(i) The State's Attorney of Montgomery County may petition the Circuit Court to enjoin any violation of this section.'

Hechinger Company, Inc. (Hechinger) operates two stores in Montgomery County, advertised as 'The World's Most Unusual Lumber Yards.' Hechinger's president described his company as being 'in the lumber, hardware and general merchandise business,' or, alternatively, as being in the 'home center business.' It is conceded that Hechinger does not sell drugs.

Regarding itself aggrieved by what it viewed as an uneven enforcement of section 534J in Montgomery County, with the result that Dart Drug Corporation (Dart Drug), with four stores; Drug Fair, Inc. (Drug Fair) with 10 stores, and Peoples Drug Stores, Inc. (Peoples) with 27 stores, sometimes hereafter referred to collectively as 'the Drugstores,' which sold over 67% of the items, in a generic sense, sold by Hechinger, were permitted to remain open on Sunday, while Hechinger had been required by Montgomery County law enforcement officers to be closed on Sundays beginning in January, 1973, Hechinger brought an action for declaratory and injunctive relief on the equity side of the Circuit Court for Montgomery County against Dart Drug, Drug Fair, and Peoples. ²

This appeal was entered from an order enjoining Dart Drug, Drug Fair, and Peoples from remaining open in Montgomery County on Sunday, with the exception of any store not regularly employing more than six persons on any one shift. ³

The Drugstores mount a multi-faceted attack on the order entered below. They would have us reverse because:

(i) The lower court erred in holding that Code (1957, 1971 Repl. Vol.) Art. 27, § 534J(b)(1), is unconstitutional;

(ii) All of the Drugstores' stores were 'drugstores whose basic business is the sale of drugs and related items';

(iii) Hechinger lacked standing to bring the suit (iv) The lower court erred when it overruled the Drugstores' demurrers which raised the question that Hechinger failed to join indispensable parties.

(v) The lower court erred when it refused to allow the Drugstores to join what they regarded as indispensable parties;

(vi) The lower court denied the Drugstores procedural due process;

(vii) Hechinger sued Dart Drug, Inc., and not Dart Drug Corporation, the proper defendant.

While we propose to modify the declaration entered by the chancellor below (Shure, C. J.), and affirm his order, we shall consider each of these contentions.

(i)

The holding that Code (1957, 1971 Repl. Vol.) Art. 27, § 534J(b)(1) is unconstitutional.

This contention can be disposed of summarily, because the Drugstores are quite right. Provisions comparable to that contained in section 534J have consistently survived attack on constitutional grounds, Giant of Maryland, Inc. v. State's Attorney, supra, 267 Md. at 516-517, 298 A.2d at 435-436; Rebe v. State's Attorney, 262 Md. 350, 354-358, 277 A.2d 616, 618-620 (1971); Richards Furniture Corp. v. Board of County Comm'rs, 233 Md. 249, 263-264, 196 A.2d 621, 628-629 (1963); McGowan v. State, 220 Md. 117, 122-126, 151 A.2d 156, 159-161 (1959), affirmed, 366 U.S. 420, 86 S.Ct. 1101, 6 L.Ed.2d 393 (1961).

(ii)

All of the Drugstores' stores were 'drugstores whose basic business is the sale of drugs and related items.'

Webster's New International Dictionary 226 (2d ed. 1944) defines basic as 'of or pertaining to the base or essence; fundamental; as, a basic fact; constituting a basis; as, a basic wage.' (Emphasis in original.)

At argument before us the Drugstores made the point that to sustain the result reached below, the statutory exception to Sunday closing must be read 'Drug stores whose basic business is the sale of drugs and (drug) related items.' We do not think words need be added to discern the clear expression of legislative intent that a drugstore which compounded prescriptions and sold proprietary drugs was permitted to be open on Sunday. The related items, not all drug related, would be the medical supplies, health and beauty aids, tobacco, candy, ice cream, newspapers, and magazines one would ordinarily expect to find in a pharmacy.

In Patuxent Dev. Co. v. Ades of Lexington, Inc., 257 Md. 398, 263 A.2d 584 (1970), a developer had leased space to a department store, and covenanted that it would not lease any other property controlled by it within a five-mile radius to a variety store or a five and ten cent store. When the developer attempted to lease 15,000 square feet of space within the prescribed area to Drug Fair of Maryland, Inc., ⁴ the department store sought and received injunctive relief. We affirmed, noting that one of the witnesses had described Drug Fair as 'a variety store with a prescription department,' 257 Md. at 407, 263 A.2d at 589. In that case, it was controverted

'That the typical Drug Fair operation sells, among other items not commonly found in drugstores, garden implements, unpainted furniture, men's, women's and children's clothing, paints, appliances, luggage, handbags, jewelry, phonograph records, radios, rugs, lamps, toys, bedding, hardware, housewares and books,' 257 Md. at 407, 263 A.2d at 589.

In this case, the chancellor found as a fact that the Drugstores were continuing to advertise the following for sale on Sunday:

'By Peoples Drug Stores-Lucite wall paint, drop cloths, masking tape, spray paint, 7-piece paint roller and tray set, Sunbeam spray iron, Oster blender, vinyl flannel-back table clothes, Liqui-Pour, decorative swag lamps, Schick fresh-air machine, fiberglass drapes, scatter rugs, Church toilet seats, nylon umbrellas, walnut-finished credenzas, metal wall units, glass-door bookcase, four-band radio, miscellaneous occasional furniture pieces, artificial floral centerpieces, model car kits, miscellaneous novelties, plush stuffed animals, and Liquid-Plumr drain opener.

'By Drug Fair-jewelry boxes, men's neckties, men's handkerchiefs, gym bag, drinking glasses, stuffed toys and stuffed animals, radio headphones, pocket radio, Buckingham motor oil, auto polishing cloths, door mirrors, sandwich bags, Heinz dill pickles, STP gasoline treatment, automobile iece scrapers, snow brooms, paper towels, dog food, and suede cleaner.

'By Dart Drug-Del Monte fruit cocktail and Del Monte sweet corn, sardines, miscellaneous fruit drinks, 60-minute cassette tapes, Maxwell House coffee, drinking glasses, leather tote bags, pantyhose, snifter set, baby's trainer chair, baby's highchair, caulking compound, spray paint, 6-foot aluminum step ladder, Lucite paints, Chemtone paints, turpentine, paint thinner, masking tape, paint remover, paint and trim kit, household cement, Stanley screwdriver and aluminum level, Solidox torch kit, soldering iron kit, Oxwall assorted hand tools, staple gun kit, oil filters, A-C spark plugs, deluxe steel tow cable, standard tire pressure gauge, automobile mirrors, Prestone Spray de-icer, tune-up kits for most cars, fuel guards, gas line antifreeze, Hoover vacuum cleaners, Hoover...