Gibson Products Co., Inc. v. State

• Decision Date: 22 December 1976
• Docket Number: No. B--5782,B--5782
• Parties: 82 Lab.Cas. P 55,071 GIBSON PRODUCTS COMPANY, INC., et al., Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

Page 128

545 S.W.2d 128

82 Lab.Cas. P 55,071

GIBSON PRODUCTS COMPANY, INC., et al., Appellants, v. The STATE of Texas, Appellee.

No. B--5782.

Supreme Court of Texas.

Dec. 22, 1976.

Rehearing Denied Jan. 19, 1977.

Leo C. Michaud, Bardwell D. Odum, Dallas, for appellants.

Henry R. Wade, Dist. Atty., John H. Hagler, Asst. Dist. Atty., Dallas, John L. Hill, Atty. Gen., David M. Kendall, Jr., Asst. Atty. Gen., Austin, for appellee.

REAVLEY, Justice.

We have here another attack upon the constitutionality of the Sunday (or Saturday) closing law. The trial court enjoined appellants from selling or offering for sale, on consecutive Saturdays and Sundays, the merchandise enumerated in the statute; a direct appeal was then taken to this Court under Art. 1738a, Vernon's Ann.Tex.Civ.Stat.

The sole contention is that the closing law is unconstitutional. The law is now Art. 9001, Vernon's Ann.Tex.Civ.Stat. It was formerly Art. 286a of the Penal Code; when the new Penal Code was enacted in 1973, this particular law was transferred intact to the civil statutes. It has often been upheld as constitutional against the same equal protection and due process arguments as are repeated here. State v. Spartan's Industries, Inc., 447 S.W.2d 407 (Tex.1969), dismissed for want of a substantial federal question, 397 U.S. 590, 90 S.Ct. 1359, 25 L.Ed.2d 596; Ralph Williams Gulfgate Chrysler Plymouth, Inc. v. State, 466 S.W.2d 639 (Tex.Civ.App.1971, writ ref'd n.r.e.); Sundaco, Inc. v. State, 463 S.W.2d 528 (Tex.Civ.App.1970, writ ref'd n.r.e.); Levitz Furniture Co. v. State, 450 S.W.2d 96 (Tex.Civ.App. 1969, writ ref'd n.r.e.).

Appellants point to the 1973 repeal of the Penal Code provisions (Arts. 283--287) which broadly prohibited labor and sales on Sunday, leaving only Art. 9001 as the constraint against sales on Saturday And Sunday. They argue that this bare constraint has no rational justification for what may be sold and for who may sell and for when the sales may be made. They argue that the proscriptions now have no reasonable relation to the health, recreation or welfare of the people.

Art. 286a, which was under review by this Court in 1969, did more than add the device of a court injunction to the sanction of the Penal Code prohibition against Sunday business operations. It removed all penalties for the sale of the enumerated items on Sunday by those who did not sell any of the items on Saturday. The need to justify that different treatment for those who chose to close shop on Saturday and open on Sunday took us to the same constitutional questions facing us in the present case.

In State v. Spartan's Industries, Inc., supra, we said that we understood the principal plan of this statute to be the provision of effective sanctions to close most mercantile establishments on Sunday--Saturday being the better day for sales than Sunday. Allowing latitude for Sabbatarians and for some who prefer to tend only the Sunday trade, the Legislature thereby maintains the prevailing custom of people doing their serious shopping for clothing, furniture, automobiles, household and office appliances, and hardware on weekdays. When the Legislature retained the statute in 1973, it apparently decided to continue to serve that purpose. We regard the matter as a legislative question and reaffirm the constitutionality of the present statute.

The judgment of the trial court is affirmed.

Dissenting opinion by DOUGHTY, J., in which GREENHILL, C.J., and McGEE and SAM D. JOHNSON, JJ., join.

DOUGHTY, Justice (dissenting).

I respectfully dissent.

The question is not whether the legislature could require all merchants to close one day a week. That constitutional question has already been decided in State v. Spartan's Industries, Inc., 447 S.W.2d 407 (Tex.1969). The question before us is this: assuming, as the majority opinion does, that all merchants may remain open seven days a week, may the legislature arbitrarily prohibit the sale of certain merchandise on both Saturday and Sunday?

The majority correctly points out that Tex.Rev.Civ.Stat.Ann. art. 9001 ¹ was originally cofidied as article 286a of the Penal Code of 1925. As such, this court held it constitutional in Spartan's Industries, Inc. In 1973 the Texas Legislature enacted the present Penal Code and repealed much of the Penal Code of 1925. Certain articles, however, including article 286a, were transferred to the civil statutes. Tex.Laws of 1973, ch. 399, § 5, at 995. Among provisions repealed by the legislature were articles 283--286 and article 287 ² of the Penal Code of 1925. Prior to their repeal these statutes had broadly prohibited any labor or sales on Sunday. The net effect of this legislative activity was to remove nearly all constraints on Sunday labor, including the sale of merchandise, prohibiting only the sale of goods specified in article 9001. Gibson's contends that article 9001, stripped of its former framework of Sunday closing laws, is unconstitutional because it denies equal protection and due process of the law and because it constitutes an unlawful exercise of police power.

I. Equal Protection

In Spartan's Industries, Spartan's, as I understand the opinion, based its equal protection argument on the difference in penalties for violation of Sunday closing laws. Under article 286, violators of the general closing requirement faced a maximum penalty of $50.00. Article 286a, applicable to a small group of merchants ³ selling enumerated items, provided for enforcement of its provisions by injunctive relief. This court rejected the contention that such a distinction was discriminatory and indicated that the legislature was at liberty to treat flagrant violations of the law in a more severe manner as long as discrimination among competitors was avoided. 447 S.W.2d at 413.

The situation which we now face differs significantly from that before us in Spartan's Industries. The rational basis for the classification in article 286a--to insure that these flagrant violators of article 286, who might ignore a $50.00 fine, closed on Sunday--is no longer present. In Spartan's Industries, we pointed out that article 286a 'specifically provides in Sec. 5a that the older Sunday closing laws are not repealed.' 447 S.W.2d at 410. Article 9001, on the other hand, is not part of a broader framework designed to insure that all merchants, with a few exceptions, close. Instead, it is intended to force only stores selling particular goods to close. Those who fail to comply face an injunction. All other places of business may continue doing business on Saturday and Sunday as they would on any other day of the week.

The question then becomes whether there is some other rational basis upon which to uphold this legislation. The State argues, and by relying on Spartan's Industries the majority apparently agrees, that article 9001 is a valid solution to complex problems concerning first amendment freedom of religion. Both point out that the option of opening on either Saturday or Sunday was adopted with Sabbatarians in mind. This argument is wide of the mark. Accepting the premise that there is a constitutional problem of religious liberty involved, ⁴ it is not readily apparent why the legislature has prohibited certain merchants (i.e. those dealing in the listed merchandise) from selling on both Saturday and Sunday, while allowing all other merchants to sell on both days. The question why such a classification is rational remains. The provision of article 9001 forcing a choice of Saturday or Sunday sales could perhaps be justified on religious grounds if all sales on consecutive Saturdays and Sundays were prohibited. With the repeal of article 283, however, no such prohibition exists.

The majority has not attempted to suggest a rationale for this classification. I do not think one exists. I would hold that article 9001 is a discriminatory classification, denying Gibson's equal protection of the law.

II. Due Process

An equally compelling reason to overturn this statute lies in the constitutional requirement of due process. Although there is legislative discretion in the area of economic regulation, the measure adopted must bear a reasonable relation to the proposed end. Spartan's Industries, supra at 414. In Spartan's Industries, we held that it was reasonable to provide for injuctive relief against certain violators of the Sunday closing law in order to obtain the objective of a one-day surcease from commerce. 447 S.W.2d at 411--12. The legislature, by repealing articles 283--286 and article 287, apparently abandoned this objective. Presumably the legislature believed that the health, recreation, and welfare of the people of the state no longer required general abstinence from commerce one day a week.

The majority opinion, however, disagrees; the legislative objective remains 'to close most mercantile establishments on Sunday.' Can it be said that the legislature was reasonably entitled to expect that article 9001 would attain the admittedly valid objective of limiting Sunday operations only by Sabbatarians and perhaps an occasional small storekeeper? I think not. Prohibiting the sale of certain merchandise on either Saturday or Sunday of any given week in no way limits the ability of the citizenry in general to carry on commerce if all other business may continue.

The line where the police power of the state encounters the barrier of substantive due process is not susceptible of exact definition. As a general rule the power is commensurate with, but does not exceed, the duty to provide for the real needs of the people in their health, safety, comfort and convenience as consistently as may be with private property rights. The guarantee of due process does not deprive the state of the right to take private property by the exercise of such power in a proper and lawful manner, but it is essential that the power be used for the purpose of accomplishing, And in a manner appropriate to the...