Handy Dan Imp. Center, Inc. v. Adams, 81-233

• Decision Date: 01 June 1982
• Docket Number: No. 81-233,81-233
• Citation: 276 Ark. 268,633 S.W.2d 699
• Parties: HANDY DAN IMPROVEMENT CENTER, INC., et al., Appellants, v. Charles G. ADAMS, et al., Appellees.
• Court: Arkansas Supreme Court

Page 699

633 S.W.2d 699

276 Ark. 268

HANDY DAN IMPROVEMENT CENTER, INC., et al., Appellants, v. Charles G. ADAMS, et al., Appellees.

No. 81-233.

Supreme Court of Arkansas.

June 1, 1982.

Rose Law Firm, Little Rock, for Handy Dan.

Owens, McHaney & Calhoun, Little Rock, for Kroger Co.

Wright, Lindsey & Jennings, Little Rock, for Skaggs Companies, Inc.

House, Holmes & Jewell, P. A., Little Rock, for Safeway Stores, Inc.

Steve Clark, Atty. Gen. by R. B. Friedlander, Asst. Atty. Gen., and Tucker & Cuffman, Little Rock, for appellees.

CHARLES B. ROSCOPF, Special Judge.

This case concerns the constitutionality of the Sunday closing law, Ark.Act 135 of 1965 (codified as Ark.Stat.Ann. Sections 41-3852 through 41-3863 (Repl.1977)). The Plaintiffs, seven private individuals and five retail establishments residing and doing business in Pulaski County, brought this action to enjoin Defendants, five competing retail establishments, from engaging in retail sales on Sunday in violation of the act. The attorney general was made a party to this action as required by Ark.Stat.Ann. Section 34-2510 (Repl.1962). While the Sunday closing law is a criminal law providing criminal penalties, Section 7 declares the Sunday sale of prohibited articles to be a public nuisance subject to injunctive action. The Defendants filed Answers challenging the constitutionality of the act.

After a trial of the issues, the chancellor found that all of the Defendants were in violation of the Sunday closing law and that the law was constitutional. The Defendants were permanently enjoined from selling the prohibited articles on Sunday.

The issue on appeal is whether Act 135 of 1965 is constitutional. The questions presented are (1) whether the Sunday closing law is so vague that it fails to give reasonable notice of the forbidden conduct and therefore violates due process as guaranteed by the U. S. Constitution, Amendment XIV, and the Arkansas Constitution, Article 2, Section 8; (2) whether the classifications within the law deny equal protection as guaranteed by the U. S. Constitution, Article XIV, and the Arkansas Constitution, Article 2, Section 3; (3) whether the enforcement of the act amounted to constitutionally prohibited discriminatory enforcement, and (4) whether the trial court erred by enjoining all of the Defendants' stores in the County.

It should be made quite clear at this point that Appellants do not invoke the religious establishment challenge which is so often connected with Sunday closing cases.

Before the questions raised are discussed, it is appropriate to consider the presumptions and burdens of proof involved in cases which challenge the constitutionality of legislative acts. This Court has always held that before it may strike down an act of the legislature on the basis of unconstitutionality, it must clearly appear that the act is at variance with the Constitution. An act of the legislature is presumed to be constitutional, and any doubt on the question of constitutionality must be resolved in favor of the act. Davis Warehouse Company v. Bowles, 321 U.S. 144, 64 S.Ct. 474, 88 L.Ed. 635 (1943); Baratti v. Koser Gin Co., 206 Ark. 813, 177 S.W.2d 750 (1944); Bush v. Martineau, 174 Ark. 214, 295 S.W. 9 (1927); State v. Moore, 76 Ark. 197, 88 S.W. 881 (1905). Further, the party who alleges the unconstitutionality of a statute has the burden of proving that claim. State ex rel. Kimberlite Diamond Mining and Washing Company v. Hodges, 114 Ark. 155, 169 S.W. 942 (1914); and Rice v. Lonoke-Cabot Road Improvement District No. 11, 142 Ark. 454, 221 S.W. 179, (1920).

The arguments pressed by the Appellants are not new in the area of Sunday closing cases, and the tests prescribed are well established. Four landmark Sunday closing cases, relied on heavily by the Appellees, were decided by the U. S. Supreme Court in 1961. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961); Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961); and Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536 (1961). A fairly recent scoreboard on Sunday closing cases has been conveniently compiled in Caldor's Inc. v. Bedding Barn, Inc., 177 Conn. 304, 417 A.2d 343 (1979).

It will be seen from these cases that in applying the tests and interpreting the cases, each case is controlled to a great extent by statutory development over many decades, sometimes centuries. This accounts, in part, for the wide diversity of results reached in different jurisdictions. State cases decided since McGowan, supra, and the other landmark 1961 cases continue to be divided. This is because the precedential value of these landmark cases is limited by the particular legislative schemes involved. The constitutional challenges made by the Appellants are not new to this court either, and likewise the language of the ordinance or act being considered must be carefully scrutinized in the process of case interpretation.

Sunday closing laws have their roots in the very earliest stages of human history. Justice Wood in Rosenbaum v. State, 131 Ark. 251, 199 S.W. 388 (1917) recites a classic statement of the evolution of the original Arkansas Sunday closing laws. See, e.g., Two Guys From Harrison, Inc. v. Furman, 32 N.J. 199, 160 A.2d 265 (1960); Note, "Sunday Closing Laws in The United States: An Unconstitutional Anachronism", 11 Suffolk U.L.Rev. 1106 (1977).

Contained in our Revised Statutes adopted in 1837 were comprehensive Sabbath Breaking Laws that prohibited not only all sales on Sunday but also all labor on Sunday with some minor exceptions for acts of daily necessity and charity. Rev.Stat., ch. 44, div. 7, Art. II. Justice Wood in Rosenbaum, supra, points out that these Sabbath Breaking Laws are almost a literal copy of an act adopted during the reign of Charles II. Incredibly, these Sunday laws stayed on our books almost unchanged until the labor proscription section (Ark.Stat.Ann. Section 41-3801 (1947)) was repealed by Ark.Act 554 of 1953 and the sales proscription section (Ark.Stat.Ann. Section 41-3802 (1947)) was repealed by Ark. Act 367 of 1957. From 1957 until the enactment of Ark. Act 135 of 1965, Arkansas had no Sunday closing laws applicable generally to the entire state. It is important to note that the Sunday closing laws which were effective in Arkansas from 1837 to 1957 prohibited the retail of "any goods, wares and merchandise" on Sunday with the only exception being "charity or necessity on the part of the customer". This brief statutory history is included in order that Act 135 may be considered in the proper historical perspective.

We will consider the questions presented in the order set out above. First, we will discuss Appellants contention that Act 135 is unconstitutionally vague. The core provision of this act is Section 2 (Ark.Stat.Ann. Section 41-3853 (Repl.1977)), which provides that it shall be unlawful to sell or offer to sell on Sunday the following commodities: (1) clothing and wearing apparel; (2) clothing accessories; (3) household utensils, glassware and china; (4) home, business or office furniture; (5) mechanical or electrical household or office appliances; (6) hardware, tools and paints; (7) building and lumber supply materials; (8) jewelry, silverware, watches and clocks; (9) luggage and leather goods; (10) musical instruments and recordings; (11) radios and television sets, receivers, record players, recording devices and components and parts therefor; (12) lawnmowers and other manual and power driven outdoor gardening equipment; (13) cameras, projectors and parts and equipment therefor (except film, flashbulbs and batteries); and (14) linens, yard goods, trimmings and sewing supplies.

It is fundamental that a criminal 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. Connally v. General Construction Company, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1925). The rationale behind this rule was clearly expressed in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

The most recent Arkansas case involving the point is Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979), which reiterates the due process requirements in the criminal law field as in Grayned, supra, and cites Papa Christou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), and Herndon v. Lowry, 301 U.S. 243, 57 S.Ct. 732, 81 L.Ed. 1066 (1937). It is against these basic rules of fair play that Act 135 must be tested.

The facts for the most part are undisputed. The Plaintiffs proved the unlawful sale of prohibited articles and explained the effects on their businesses of such sales on Sunday when Plaintiffs were closed. They offered excerpts from the minutes of the Board of Directors of the City of Little Rock which instructed the city manager to put blue laws last on the priority list of enforcement. The Defendants offered store managers and clerks to show their inability to identify clearly articles prohibited by the act and to show the...