Ex parte Hodges

• Decision Date: 23 September 1938
• Docket Number: A-9530.
• Citation: 83 P.2d 201,65 Okla.Crim. 69
• Parties: Ex parte HODGES et al.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

83 P.2d 201

65 Okla.Crim. 69

Ex parte HODGES et al.

No. A-9530.

Court of Criminal Appeals of Oklahoma

September 23, 1938

Syllabus by the Court.

1. The Legislature has power to impose upon the public the civil duty of observing one day in seven as a day of rest, but it is beyond its power to impose the observance of Sunday as a religious duty.

2. Under constitutional provision for adoption of home-rule charter, city adopting such charter is accorded full power of local self-government and, as such, municipal corporation has power to enact, ordain, and enforce ordinances for purpose of protecting public peace, order, health, morals, and safety of inhabitants, even though general statutes exist relating to same subjects. Const. art. 18, § 3(a), Okl.St.Ann. Const art. 18, § 3(a).

3. The provisions of a charter, adopted and approved in accordance with such constitutional provision, supercede all laws of the state in conflict therewith in so far as such laws relate to merely municipal matters.

4. Such charter provisions, where they conflict with the general laws of the state, must give way, and, while they may run concurrent with the general laws of the state, they may not run counter thereto.

5. An ordinance prohibiting any person or persons owning or being in charge of any grocery store to sell or attempt to sell any groceries on Sunday, within the limits of the city held invalid as class legislation and in violation of Constitution, art. 5, § 59, Okl.St.Ann. Const. art. 5, § 59. Held, further, said ordinance is void as inconsistent with the general law. Section 2564, O.S.1931, 21 Okl.St.Ann. § 908.

Original proceeding on application of M. C. Hodges and W. R. Butler for a writ of habeas corpus directed to F. A. Budd, Chief of Police of the City of Shawnee, Oklahoma.

Petitioners discharged.

John T. Levergood, of Shawnee, for petitioners.

Mac Q. Williamson, Atty. Gen., and Randall Pitman, of Shawnee, for the State.

DAVENPORT Presiding Judge.

This is an application for a writ of habeas corpus wherein the petitioners allege that they are unlawfully imprisoned and restrained of their liberty and seek to secure their release by order of this court from custody of the Chief of Police of the city of Shawnee.

Petitioners allege they are engaged in operating a grocery store in the city of Shawnee; that they are charged with violating Ordinance 554, as follows:

"Be it ordained by the Mayor and Board of Commissioners of the city of Shawnee.

Section 1. That Section 114 of Art. 6, of Chapter 29, of the Revised Ordinance of the City of Shawnee, be and the same is hereby amended to read as follows:

Section 114. Sunday Closing. It shall be an offense for any person, being the owners or having under their control any place of business, or business houses in the City, to open or cause the same to be opened between the hours of 12 o'clock P. M. Saturday night and 12 o'clock P. M. Sunday night, for the purpose of transacting business therein, and any person who commits such acts or permits or authorizes such acts shall be guilty of an offense. Provided, that nothing in this section shall apply to drug stores, hotels, restaurants, ice cream parlors, fruit stands, livery stables, service stations, paper plants, theatres and places of amusement. Provided further that nothing in this section shall prevent groceries and markets from selling meats, bread, fish and milk at any time before 9 o'clock in the morning.

Section 2. That nothing in this ordinance shall operate to repeal any part or portion or section of Chapter 29 of the Revised Ordinances of the City of Shawnee for 1931, and that the same shall operate to amend only the section above stated and that the amended section as herein set forth shall be treated and construed as though it had been originally set forth in said chapter.

Be it further ordained that for the preservation of the public peace, health and safety, an emergency is deemed to exist, by reason whereof, this ordinance shall become effective and take force immediately upon its passage and approval."

Petitioners allege that said restraint is illegal and unauthorized, in that said ordinance is not general and uniform in its operation and effect, that it does not apply to all selling on Sunday commodities, articles of trade and merchandise, and that such ordinance is special and exclusive and affects only those who sell groceries and meats on Sunday, and constitutes class legislation. That it is an attempt on the part of the city officials to regulate private business and industry; that said ordinance is unconstitutional with and in conflict with and is repugnant to the general statutes of the State of Oklahoma governing the same subject matter and especially Section 2564, O.S.1931, 21 Okl.St.Ann. § 908. That said ordinance if enforced would constitute an invasion of petitioners' property rights and cause irreparable loss and damage; that said ordinance is a violation of the 14th amendment to the Constitution of the United States, U.S.C.A.Const. Amend. 14, and in effect takes away their property rights without due process of law; that said ordinance is arbitrary in its operation in that it prohibits the opening on Sunday of certain lines of business, and allows the opening of those in other lines, is not general in its operation and in effect only grants special privileges and immunities to certain classes while without legal excuse denies them to others, in violation of the constitution and laws of the State of Oklahoma in such case made and provided.

Your petitioners further show to this honorable court that they and each of them have heretofore petitioned the honorable district court of Pottawatomie County for a writ of habeas corpus, and that thereafter, and on the second day of June, 1938, a hearing was had before said court and the said district court denied these petitioners said writ and refused to discharge them from imprisonment; all of which is fully shown from the case-made of the proceedings had before said court, which is hereto attached, marked exhibit "A" and made a part hereof as written herein.

The facts stipulated constitute a violation of said ordinance on the part of the petitioners, and the only question to be determined is the validity of the ordinance. The city of Shawnee is a city of the first class, and is organized and operating under a charter form of government, under the authority of Section 3 (a) Art. 18, State Constitution, Okl.St.Ann.Const. art. 18, § 3(a).

1. Under the constitutional provisions any city containing a population of more than 2,000 inhabitants may frame a charter form of government, consistent with the support of the constitution and laws of the State of Oklahoma, and a city adopting a charter is accorded full power of local government, and as said municipal corporation under its charter it has power to enact ordinances and enforce ordinances for the purpose of protecting public peace, order health, morals and safety of the inhabitants, even though general statutes exist regulating the same subjects. Shinn v. State, 59 Okl.Cr. 433, 61...