Opinion of the Justices

• Citation: 108 N.H. 103,229 A.2d 188
• Parties: OPINION OF THE JUSTICES.
• Decision Date: 21 April 1967
• Court: Supreme Court of New Hampshire

Page 188

229 A.2d 188

108 N.H. 103

OPINION OF THE JUSTICES.

Supreme Court of New Hampshire.

Submitted April 10, 1967.

Answer Returned April 21, 1967.

Upton, Sanders & Upton, Concord, for Giant Stores of New Hampshire, for affirmative answers.

Hamblett, Kerrigan & Hamblett, Nashua, for Retail Merchants Ass'n, for negative answers.

The following resolution was adopted by the House of Representatives March 23, 1967 and filed in this court on March 29, 1967:

'Whereas, there is pending before the House of Representatives Senate Bill No. 40, An Act to regulate the operation of business on the first day of the week, known also as Sunday, and certain annual holidays, and

'Whereas, said act would prohibit certain businesses from being open on Sundays and certain holidays, and

'Whereas, questions have been raised concerning the constitutionality of said bill, now therefore be it

'Resolved, that the Justices of the Supreme Court be respectfully requested to give their opinion upon the following questions of law:

'1. Would any constitutional provisions of the state or of the United States be violated by prohibiting businesses from being open on Sundays and on the holidays specified in Senate Bill No. 40 except for works of necessity, emergency, or charity?

'2. Would any constitutional provisions of the state or of the United States be violated by excepting stores wherein no more than five persons, including the proprietor, are employed on Sunday and throughout the week in the usual and regular conduct of business, from the requirement of being closed on Sundays and certain holidays, as set forth in section 3 of Senate Bill No. 40?

'3. Would any constitutional provisions of the state or of the United States be violated by excepting stores which have no more than nine thousand square feet of interior customer selling space, excluding back room storage, office and processing space, from the requirement of being closed on Sundays and certain holidays, as set forth in section 3 of Senate Bill No. 40?

'4. Would the enactment of the provision which excepts from the requirement of being closed on Sundays and certain holidays any secular place of business not otherwise prohibited by law if the natural person in control of the business conscientiously believes that the seventh day of the week, or the period which begins at sundown on Friday night and ends at sundown on Saturday night, should be observed as the Sabbath, and causes all places of business in New Hampshire over which he has control to remain closed for secular business during the entire period of twenty-four consecutive hours which he believes should be observed as the Sabbath, and actually refrains from engaging in secular business and from laboring during that period, as set forth in section 3 of Senate Bill No. 40, violate any constitutional provisions of the state or of the United States including, without limiting the foregoing, the religious establishment clause of the First Amendment to the United States Constitution?

'5. Do the exceptions set forth in section 3 of Senate Bill No. 40 constitute an improper classification and unjust discrimination, thereby violating any constitutional provisions of the state or of the United States?

'6. Is it constitutionally permissible to provide for the exceptions as set forth in section 3 of Senate Bill No. 40?

'7. Do any of the exceptions in section 3 of Senate Bill No. 40 violate any constitutional provisions of the state or of the United States?

'8. Can the legislature constitutionally limit the types of business which may remain open on Sundays and certain holidays according to the number of employees such business has?

'9. Can the legislature constitutionally limit the types of businesses which may remain open on Sundays and certain holidays according to the size of the store within which such business is conducted?

'10. Can the legislature constitutionally limit the types of businesses which may remain open on Sunday and certain holidays to those specifically set forth in section 3 of Senate Bill No. 40?

'11. Do any provisions of Senate Bill No. 40 violate any constitutional provisions of the state or of the United States?

'Be It Further Resolved that the Speaker transmit seven copies of this resolution and of Senate Bill No. 40 to the Clerk of the Supreme Court for consideration by said court.'

The following answer was returned:

To the House of Representatives:

The Justices of the Supreme Court make the following reply to the questions contained in your resolution of March 23, 1967, filed in this court on March 29, 1967, with respect to the constitutionality of Senate Bill No. 40.

The bill in question would amend sections 3 and 5 of RSA chapter 578, and repeal sections 4, 11 and 13 of the same chapter. The amendment to section 3 would strike out the existing prohibition of work 'to the disturbance of others' on Sunday excepting 'works of necessity and mercy,' the prohibition of certain mill and factory repairs, and the prohibition of sports and games on that day. It would substitute therefor a prohibition against keeping open 'a place of business to the public except for works of necessity, emergency, or charity, or except as provided in section 5 of this chapter.'

Section 5 of the chapter would be supplied by section 3 of the bill. It would replace the present section 5, and substitute a list of exceptions to which the prohibitions of the new section 3 'shall not apply.' These exceptions include the operation of specified services to the public, the sale or rental of specified articles of merchandise, motion picture theaters, sports and athletic events with certain qualifications, concerts and lectures, specified places of business if closed on Saturdays, and 'stores' employing a specified number of employees, or having a specified maximum 'interior customer selling space' as therein provided.

As previously noted the new sections 3 and 5 would replace existing sections 3 and 5. The bill would repeal the present section 4, which prohibits 'Sunday sales.' with certain exceptions. RSA 578:4.

The constitutionality of the existing statute, which among other things permits the sale of 'necessaries of life * * * drugs and medicines' (RSA 578:4) was recently considered and upheld by this court in State v. Rogers, 105 N.H. 366, 200 A.2d 740. The provisions of sections 4 and 5 of the existing statute were held not to violate the Constitution of this state or the First Amendment to the Constitution of the United States, as made applicable to this state by the Fourteenth Amendment, in answer to the contention among others that the statute was a 'law respecting an establishment of religion' within the meaning of the First Amendment.

Your resolution of March 23, 1967 submits eleven questions regarding Senate Bill No. 40, some of which may be considered together for purposes of convenience in answering. The first question however appears to be more generalized, and is as follows: '1. Would any constitutional provisions of the state or of the United States be violated by prohibiting businesses from being open on Sundays and on the holidays specified in Senate Bill No. 40 except for works of necessity, emergency, or charity?' As we understand the purport of the question, it seeks advice as to whether the prohibition contained in section 1 of the bill with exceptions limited to 'works of necessity, emergency or charity,' would be unconstitutional. The answer is 'no.' Such a prohibition would not violate the Constitution of the United States or of this state. It would not be a 'law respecting an establishment of religion or prohibiting free exercise thereof,' within the meaning of the First Amendment to the Constitution of the United States as interpreted by the Supreme Court of the United States. McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393; Two Guys etc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551; Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563; Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536. See State v. Rogers, 105 N.H. 366, 200 A.2d 740, supra.

The designation of three holidays, in addition to Sundays, as days when places of business shall not be kept open to the public presents no constitutional problem. The exception of 'works of necessity, emergency, or charity' would not invalidate the legislation. Such exceptions are commonly recognized and upheld, and are generally considered not to be discriminatory, or violative of the equal protection clauses of either state or federal constitutions. See Annots. 57 A.L.R.2d 975, 980; 91 A.L.R.2d 763, 765, 770; Mason v. Town of Salem, 103 N.H. 166, 169, 167 A.2d 433; Commonwealth v. Chamberlain, 343 Mass. 49, 175 N.E.2d 486. See also, 1964 Annual Survey of American Law (1965) 1, 13.

Questions 2 and 8 seek to determine the constitutionality of provisions of Senate Bill No. 40 which would except from the operation of the law certain stores 'according to the number of employees such business has' (Q. 8), and in particular the operation of 'stores wherein no more than five persons, including the proprietor, are employed on Sunday and throughout the week in the usual and regular conduct of business * * * as set forth in section 3 of Senate Bill No. 40.' (Q. 2).

Questions 3 and 9 ask whether the Legislature may constitutionally limit types of businesses which may remain open, 'according to the size of the store within which such business is conducted' (Q. 9), or more specifically, except from the operation of the statute 'stores which have no more than nine thousand square feet of interior customer selling space, excluding back room storage, office and processing space * * * as set forth in section 3 of Senate Bill No. 40.' (Q. 3).

In considering similar questions in Two Guys, etc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551, supra, where the issue of discrimination...