Mason v. Town of Salem

• Decision Date: 20 January 1961
• Citation: 103 N.H. 166,167 A.2d 433
• Parties: Robert MASON v. TOWN OF SALEM.
• Court: New Hampshire Supreme Court

Page 433

167 A.2d 433

103 N.H. 166

Robert MASON v. TOWN OF SALEM.

Supreme Court of New Hampshire.

Argued Dec. 7, 1960.

Decided Jan. 20, 1961.

John B. Ford, Salem, for plaintiff.

Perkins, Holland & Donovan and Everett P. Donovan, Exeter, for defendant.

KENISON, Chief Justice.

As a preliminary matter in the interest of clarity it should be noted that this case raises no question as to the constitutional validity of Sunday laws and ordinances under the Constitution of the United States or of this state. The former may be resolved in the four cases from Maryland, Massachusetts and Pennsylvania which have been argued and are now pending in the Supreme Court of the United States. McGowan v. Maryland, 220 Md. 117, 151 A.2d 156; 362 U.S. 959, 80 S.Ct. 874, 4 L.Ed.2d 874; Gallagher v. Crown Kosher Super Market, D.C., 178 F.Supp. 336; 362 U.S. 960, 80 S.Ct. 876, 4 L.Ed.2d 875; Two Guys From Harrison-Allentown Inc. v. McGinley, D.C., 179 F.Supp. 944; 362 U.S. 960, 80 S.Ct. 876, 4 L.Ed.2d 875; Braunfeld v. Gibbons, D.C., 184 F.Supp. 352; 362 U.S. 987, 80 S.Ct. 1078, 4 L.Ed.2d 1020; note, State Sunday Laws and the Religious Guarantees of the Federal Constitution, 73 Harv.L.Rev. 729 (1960). The latter awaits another case on another day. See note, Sunday Blue Laws: A New Battle on an Old Front, 11 Syracuse L.Rev. 254 (1960).

At issue in this case is the question whether it is lawful to sell, at retail, fresh meat and canned goods on Sunday. The defendant contends that such sales are prohibited by the amended ordinance since neither fresh meat nor canned goods are 'fully prepared for consumption in perishable form,' as required by the ordinance. The plaintiff contends that the amended ordinance was not duly enacted under the controlling statute.

The prohibition of Sunday sales in RSA 578:4 with certain exceptions is also modified by RSA 578:5 the pertinent part of which reads as follows: 'Nothing in this chapter shall prevent the selectmen of any town * * * from adopting * * * ordinances permitting and regulating retail business * * * on the Lord's Day, provided such * * * ordinances are approved by a majority vote of the legal voters present and voting at the next regular election * * *. (Emphasis supplied).' A regular election in common parlance is an election that is regularly and recurrently held. Robb v. City of Tacoma, 175 Wash. 580, 28 P.2d 327, 91 A.L.R. 1010; State ex rel. Long v. City of Nebraska City, 123 Neb. 614, 243 N.W. 858. The amended ordinance was adopted at a special meeting held on November 4, 1960. As is well known in legislative halls, a special meeting does not qualify as either a regular meeting or a regular election (RSA 21:7) unless the context clearly compels that conclusion which is not the situation here. This construction is fortified by the legislative history of this statute. The original enactment (Laws 1931, c. 155) specifically provided that a Sunday ordinance must be adopted at the next regular election but contained a further proviso that such an ordinance could be rescinded at any regular or special election. This proviso was eliminated in R.L. c. 448, § 5 and no reference to special meetings or elections has appeared in subsequent legislation relating to Sunday ordinances. Laws 1943, c. 49; RSA 578:5. It follows that this Sunday ordinance was not approved at the 'next regular election' as required by RSA 578:5 and was not validly enacted.

There is a further reason why the ordinance was not properly adopted. It was adopted...