Mandell v. Haddon, 5220

• Decision Date: 08 September 1961
• Docket Number: No. 5220,5220
• Citation: 121 S.E.2d 516,202 Va. 979
• Court: Virginia Supreme Court
• Parties: ROBERT L. MANDELL, ET AL. v. T. GRAY HADDON, ETC., ET AL. Record

Page 516

121 S.E.2d 516

202 Va. 979

ROBERT L. MANDELL, ET AL. v. T. GRAY HADDON, ETC., ET AL.

Record No. 5220.

Supreme Court of Appeals of Virginia

September 8, 1961.

Henry T. Wickham (David J. Mays; Tucker, Mays, Moore & Reed, on brief), for the appellants.

Lewis F. Powell, Jr. and Joseph C. Carter, Jr. (A. S. Harrison, Jr., Attorney General; Francis C. Lee, Assistant Attorney General; Waller H. Horsley; Hunton, Williams, Gay, Powell & Gibson, on brief), for the appellees.

JUDGE: I'ANSON

I'ANSON, J., delivered the opinion of the court.

The appellants, Robert L. Mandell, Myron A. Fine, Gerald H. Fine, C. T. Covington, Jr., and W. V. Harvey, merchants operating retail grocery stores in the city of Richmond, filed this declaratory judgment suit against T. Gray Haddon, Commonwealth's attorney of the city of Richmond, one of the appellees herein, to enjoin him from enforcing chapter 267 of the Acts of Assembly of 1960 (herein referred to as the amended Sunday law, or as §§ 18.1-358, 18.1-358.1 and 18.1-358.2 of the Code of 1950, as amended) and prayed that a decree be entered holding the chapter to be void and of no effect because it was expressly repealed by the subsequent enactment of chapter 358, Acts of Assembly, 1960 (herein referred to as the recodification act) or that chapter 267 be declared unconstitutional and void in that it violates Articles I and IV of the Constitution of Virginia and the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. The Virginia Retail Merchants Association and the Richmond Retail Merchants Association intervened as parties defendant.

After an ore tenus hearing and the consideration of evidence presented in the form of depositions and stipulations of fact, the court below, in a written opinion, held chapter 267 to be in full force and effect and constitutional, except that that part of the amended Sunday law which excludes from the specific prohibition of sales of sporting goods, 'sales or rental on the premises where sports, athletic events or recreational facilities are located or conducted of equipment essential to the normal use or operation of such premises for the purposes specified' was held to be unreasonably discriminatory and a denial of equal protection of the law to vendors not meeting such conditions. We granted the appellants an appeal and the appellees have assigned cross-error to that part of the decree holding that the 'exclusion' relating to the sale of sporting goods as provided under the act is unconstitutional.

Thus, the questions presented by the appellants' assignments of error and the appellees' one assignment of cross-error are as follows:

(1) Was chapter 267 (the amended Sunday law) which became effective June 27, 1960, repealed by chapter 358 (the recodification act) which became effective July 1, 1960?

(2) Does chapter 267 impair the religious freedom guaranteed by Article I, § 16, and Article IV, § 58, of the Constitution of Virginia?

(3) Does chapter 267 violate Article IV, § 63, clause 18, of the Constitution of Virginia and the Fourteenth Amendment to the Constitution of the United States?

(4) Is the 'exclusion' in the amended Sunday law, relating to the sale of sporting goods on the premises where sports, athletic events, or recreational activities are conducted, so discriminatory and arbitrary as to violate the requirement of equal protection of the laws?

(5) May the remainder of the amended Sunday law be upheld even though a portion thereof be invalid?

At the commencement of the 1960 session of the General Assembly the statute governing the subject of laboring on Sunday was Code § 18-329 ¹, as amended, the pertinent part of which is set out in the footnote below, and will sometimes hereinafter be referred to as the old Sunday law.

The record shows that prior to the convening of the 1960 session of the General Assembly a proposed amended Sunday law was prepared by the legislative committee of the Virginia Retail Merchants Association, after considerable research and study of the Sunday laws of other states, and circulated among retailers, law enforcement officers and interested parties throughout the State, and widespread public interest was created in the proposal. Copies of the proposed new law were also sent to members of the General Assembly.

On January 29, 1960, the proposed Sunday law bill, amending and reenacting Code § 18-329 and adding §§ 18-329.1 and 18-329.2, providing penalties for violations, was introduced in the House of Delegates, and its counterpart was introduced in the Senate on February 4, 1960. The bills were referred to both House and Senate committees. Public hearings were held, at which time it was pointed out that § 18-329 was being extensively violated and it had become practically unenforceable because its language was too general and the meaning of the exception prescribed for 'works of necessity or charity' contained therein was uncertain and confusing to law enforcement officers, juries and the general public. The bill was passed on February 8th by the House with a vote of 88 in favor and none against. The Senate bill, with amendments, was passed by the Senate on March 3, 1960, by a recorded vote of 38 to 0. The House concurred in the amended Senate bill and passed it on March 7, 1960, by a recorded vote of 81 to 0. The bill was approved by the Governor on March 12, 1960, and became effective June 27, 1960. Thus the amended Sunday law was adopted as chapter 267 ² of the Acts of Assembly of 1960, the pertinent part of which is set out in the footnote below.

Pursuant to a plan specified in Title 9, chapter 8, of the 1950 Code, as amended, §§ 9-66 to 9-77.2, inclusive, providing for the gradual revision of the Code, and specifically in accordance with a directive set out in Code § 9-77.2, the Virginia Code Commission submitted to the 1960 session of the General Assembly a proposed bill for the revision of Title 18 of the Code, §§ 18-1 to 18-366, inclusive, which title related to crimes and offenses generally, and of course included § 18-329, the old Sunday law. The bill provided in its title and preamble for the repeal of Title 18 and the reassembling of the contents thereof under a new title designated as Title 18.1, with § 18-329 being retained as §§ 18.1-358 to 18.1-363, inclusive. It was introduced in the Senate on January 13, 1960, which was the first day of the 1960 session, and passed that body on January 29, 1960, by a recorded vote of 35 to 0. It passed the House on March 9, 1960, by a recorded vote of 82 to 0. The act was approved March 30, 1960, as chapter 358 of the Acts of Assembly, and by its terms became effective July 1, 1960.

Most, if not all, of the 41 patrons of the amended Sunday law in the House also voted for the recodification bill. No one in either the House or the Senate, as previously pointed out, voted against either of the bills and there was no discussion in the House and Senate committees or on the floors of either body relative to retaining the old Sunday law in the recodification act.

Following the adjournment of the 1960 session of the General Assembly, the Virginia Code Commission treated chapter 267 of the 1960 Acts, the amended Sunday law, as an amendment and reenactment of § 18-329 as it existed prior to the convening of the 1960 session, and also as an amendment and reenactment of the relevant portions of the recodification act. Thus chapter 267 was codified in the 1960 supplement to the Code of 1960 as §§ 18.1-358, 18.1-358.1 and 18.1-358.2.

The appellants contend that the amended Sunday law, chapter 267, enacted as an amendment to Code § 18-329, with its effective date June 27, 1960, was expressly repealed by the provisions of paragraph 1 ³ of the preamble and § 18.1-1 ⁴ of the recodification act when it became effective on July 1, 1960.

They conceded in their argument that the repeal of the amended Sunday law by passage of the recodification act was a technical oversight and do not dispute that the legislative history of the two acts shows that the legislature did not intend to repeal the amended Sunday law. But they contend that it must be 'presumed' that the amended Sunday law was repealed, irrespective of the legislative intent, since the language used in the recodification act, repealing Title 18 in its entirety, is clear and unambiguous; that it needs no interpretation and that the general rules of statutory construction permit none. We do not agree with that contention.

The rules of statutory construction were conceived and are applied to give effect to legislative intent -- not to defeat it. All rules are subservient to that intent. Shackelford v. Shackelford, 181 Va. 869, 877, 27 S.E.2d 354, 358.

In 82 C.J.S., Statutes, § 282, pp. 474-475, the rule of statutory construction dealing with statutes containing language of repeal is stated as follows:

'[A] Statute purporting to repeal other statutes is subject to the same rules of interpretation as other enactments, and the legislative intent will prevail over a literal interpretation. Even words of absolute repeal may be qualified by the intention manifested in other parts of the same act; and, according to some authorities, an express declaration that a particular statute is repealed will not be given effect, where it is apparent that the legislature did not so intend * * *.' (Italics supplied.)

The voluminous recodification act was prepared by the Code Commission and printed well in advance of the convening of the 1960 session of the General Assembly. It was introduced on the first day of the session, which was more than two weeks prior to the introduction of the amended Sunday law. The approval and effective dates of the recodification act were subsequent to those of the amended Sunday law, and if we look only to those two dates, as the appellants would have us do, it may be said under a literal interpretation that the repealing clause in...