G I Surplus Store, Inc. v. Hunter, 237

• Decision Date: 23 May 1962
• Docket Number: No. 237,237
• Citation: 257 N.C. 206,125 S.E.2d 764
• Court: North Carolina Supreme Court
• Parties: , 45 Lab.Cas. P 50,606 G I SURPLUS STORE, INC., a corporation, Mecklenburg Surplus Company, a corporation, 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 North Carolina General Statute § 14-346.2, Plaintiffs, v. J. Clyde HUNTER, Sheriff of Meeklenburg County, John Hord, Chief, Charlotte Police Department, and G. A. Stephens, Chief, Mecklenburg County Rural Police Department, Defendants.

Page 764

125 S.E.2d 764

257 N.C. 206, 45 Lab.Cas. P 50,606

G I SURPLUS STORE, INC., a corporation, Mecklenburg Surplus Company, a corporation, 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 North Carolina General Statute § 14-346.2, Plaintiffs, v. J. Clyde HUNTER, Sheriff of Meeklenburg County, John Hord Chief, Charlotte Police Department, and G. A Stephens, Chief, Mecklenburg County Rural Police Department, Defendants.

No. 237

Supreme Court of North Carolina.

May 23, 1962

Boyle, Alexander & Wade, Charlotte, and Cannon & Wolfe, Greensboro, for plaintiffs-appellants.

John T. Morrisey, Sr., Dockery, Ruff, Perry, Bond & Cobb and G. H. Warlick, Charlotte, for defendants-appellees.

BOBBITT, Justice.

Plaintiffs assert, as their sole ground of attack, that the 1961 Act is 'unconstitutionally vague, uncertain and indefinite, in violation of Article I, Section 17, of the North Carolina Constitution and the due process clause of the Fourteenth Amendment to the Federal Constitution.'

The term, 'law of the land,' as used in the cited provision of the North Carolina Constitution, is synonymous with 'due process of law,' as used in the cited provision of the Federal Constitution. State v. Ballance, 229 N.C. 764, 769, 51 S.E.2d 731, 734, 7 A.L.R.2d 407, and cases cited; State v. Parrish, 254 N.C. 301, 303, 118 S.E.2d 786.

Before considering the ground of attack drawn into focus by plaintiffs' pleading and brief, it seems appropriate to advert to certain well-established principles of constitutional law.

'Undoubtedly, the State possesses the police power in its capacity as a sovereign, and in the exercise thereof, the legislature may enact laws, within constitutional limits, to protect or promote the health, morals, order, safety, and general welfare of society. ' State v. Ballance, supra, and cases cited. However, '(a)rbitrary interference with private business and unnecessary restrictions upon lawful occupations are not within the police powers of the State. ' State v. Warren, 252 N.C. 690, 693, 114 S.E.2d 660, 663, and cases cited. 'If a statute is to be sustained as a legitimate exercise of the police power, it must have a rational, real, or substantial relation to the public health, morals, order, or safety, or the general welfare. ' State v. Ballance, supra; Roller v. Allen, 245 N.C. 516, 96 S.E.2d 851, and cases cited; State v. Brown, 250 N.C. 54, 108 S.E.2d 74, and cases cited; State v. Williams, 253 N.C. 337, 117 S.E.2d 444.

Municipal ordinances, enacted in the exercise of legislative power conferred by the General Assembly, 'prohibiting the pursuit of all occupations generally on Sunday, except those of necessity or charity, have been uniformly held constitutional in this jurisdiction. ' (Our italics) State v. McGee, 237 N.C. 633, 638, 75 S.E.2d 783, 786, and cases cited. The ordinance considered in State v. McGee, supra, similar to those considered in prior cases, provided '(i)t shall be unlawful to conduct, operate or engage in, or carry on within the City of Charlotte on the Sabbath Day, called 'Sunday,' any business' (Our italics) with exceptions thereafter set forth; and it was held that the exceptions were not arbitrary, unreasonable or discriminatory.

The provisions of the 1961 Act, now G.S. § 14-346.2, proscribe, when engaged in on Sunday, conduct which, at all other times, is lawful. The purpose of the 1961 Act, according to the caption, is 'to prohibit certain business activities on Sunday. ' (Our italics) To effectuate its declared purpose, the 1961 Act provides that any person, firm or corporation who, on Sunday, engages in the business of selling or who sells or offers for sale, at retail, any articles of merchandise included within the specified categories, except novelties, toys, souvenirs, and articles necessary for making repairs and performing services, 'shall, upon conviction thereof be fined or imprisoned in the discretion of the court. ' It provides further that '(e)ach separate sale or offer to sell shall constitute a separate offense.'

Unlike ordinances and statutes such as the ordinance considered in State v. McGee, supra, the 1961 Act imposes no general ban on business activities on Sunday but applies solely to 'certain business activities,' to wit, the sale and the offering for sale, at retail, of merchandise within the specified categories. The sale, at wholesale, of merchandise within the specified categories is not proscribed. Nor does the statute affect in any manner the selling or offering for sale of merchandise or other property not included in the specified categories.

Questions suggested by a consideration of the 1961 Act, but not raised by plaintiffs, include the following: Is the classification of the articles that may not be lawfully sold or offered for sale on Sunday arbitrary, unreasonable or discriminatory? Does the 1961 Act manifest a legislative determination that the acts proscribed thereby are inimical to the public health, morals, order safety or general welfare, when authority is granted to local governing bodies to exempt from its provisions areas subject to their authority? Since it regulates trade, is the 1961 Act a general law within the meaning of Article II, Section 29, of the Constitution of North Carolina, McIntyre v. Clarkson, 254 N.C. 510, 119 S.E.2d 888, when local governing bodies are authorized in effect to repeal it with reference to areas subject to their authority?

We do not pass upon any of the questions posed in the preceding paragraph. The only question for decision on this appeal is whether the 1961 Act is unconstitutional and void on the ground on which plaintiffs attack it. Hudson v. Atlantic Coast Line R.R., 242 N.C. 650, 667, 89 S.E.2d 441.

In Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.E.d 322, the applicable rule is stated by Mr. Justice Sutherland as follows: 'That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.'

'* * * the terms of a criminal statute must be sufficiently explicit to inform those subject to it what acts it is their duty to avoid or what conduct on their part will render them liable to its penalties, and no one may be required, at the peril of life, liberty, or property to guess at, or speculate as to, the meaning of a penal statute.' 22 C.J.S. Criminal Law § 24(2) a; 16A C.J.S. Constitutional Law § 580; 14 Am.Jur., Criminal Law § 19; Wharton's Criminal Law and Procedure, Vol. 1, § 18; State v. Hales, 256 N.C. 27, 122 S.E.2d 768, and cases cited therein. True, reasonable certainty is sufficient; and this Court in State v. Hales, supra, held the provisions of the statute then under consideration sufficiently definite to inform 'a person of ordinary intelligence with reasonable precision of the acts it prohibits.'

A statute, enacted in Missouri and also in Kansas, Sections 563.720, 573.730 RSMo 1959, V.A.M.S.; G.S.1949, 21-955, 21-956, after declaring '(e)very person who shall expose to sale any goods, wares or merchandise, * * * on the first day of the week, commonly called Sunday, shall, on conviction, be adjudged guilty of a misdemeanor and fined not exceeding fifty dollars,' provided it 'shall not be construed to prevent the sale of any drugs or medicines, provisions or other articles of immediate necessity. ' (Our italics)

In State v. Katz Drug Company (Mo. 1961), 352 S.W.2d 678, the court held the State's evidence made a case for the jury; that certain of the articles sold by the defendant did not come within the exemption of 'articles of immediate necessity'; that, while no comprehensive general definition of 'articles of immediate necessity' was given, 'articles immediately necessary to carry on work of necessity would surely be included'; (Our italics) and that, when so construed, the statute was not unconstitutional and void on the ground of vagueness and uncertainty.

In State v. Hill (1962), 189 Kan. 403, 369 P.2d 365, the court said: 'But the phrase 'or other articles of immediate necessity' has no objective meaning. There is no common, generally-understood meaning to this all-embracing term. It becomes meaningful only when applied to a specific article purchased under...