Rutledge v. Gaylord's, Inc.

• Decision Date: 13 February 1975
• Docket Number: Nos. 29608,29647,s. 29608
• Citation: 213 S.E.2d 626,233 Ga. 694
• Parties: , 76 Lab.Cas. P 53,606 Jack T. RUTLEDGE et al. v. GAYLORD'S, INC. Thomas W. HUGHEY v. GAYLORD'S, INC., et al.
• Court: Georgia Supreme Court

Page 626

213 S.E.2d 626

233 Ga. 694, 76 Lab.Cas. P 53,606

Jack T. RUTLEDGE et al. v. GAYLORD'S, INC.

Thomas W. HUGHEY v. GAYLORD'S, INC., et al.

Nos. 29608, 29647.

Supreme Court of Georgia.

Feb. 13, 1975.

Lenney F. Davis, E. H. Polleys, Jr., Columbus, Arthur K. Bolton, Atty. Gen., Michael W. Dyer, Asst. Atty. Gen., Atlanta, for appellants Jack T. Rutledge and others.

Harry Dicus, Columbus, Hoke Smith, Atlanta, E. Mullins Whisnant, Dist. Atty., Thomas W. Hughey, Columbus, for appellee.

Robert G. Johnston, III, Asst. Sol., Columbus, for appellant Thomas W. Hughey.

Arthur K. Bolton, Atty. Gen., Atlanta, E. H. Polleys, Jr., Harry Dicus, Columbus, Hoke Smith, Atlanta, E. Mullins Whisnant, Dist. Atty., Columbus, for appellees.

Syllabus Opinion by the Court

NICHOLS, Chief Justice.

Gaylord's, Inc. filed a complaint in the Superior Court of Muscogee County against the District Attorney of the Chattahoochee Judicial Circuit, the Solicitor of the State Court of Muscogee County, the sheriff of such county and the Chief of Police of Columbus, Georgia in which the plaintiff corporation sought to have declared unconstitutional an Act entitled 'The Common Day of Rest Act of 1974.' Ga.L.1974, p. 186. After hearing evidence the trial court granted the plaintiff a temporary injunction in which the Act was declared to be unconstitutional and which enjoined the defendants from enforcing the provisions of such Act. Thereafter, the defendants, while not acquiescing in the former judgment entered in the case, agreed that there was no need for further hearing or additional evidence and a permanent injunction was granted. In Case No. 29608 the sheriff and chief of police appeal and in Case No. 29647 the district attorney and solicitor appeal from such judgment.

The first section of the Act attacked provides: 'The purpose of this Act is to promote the health, recreation, welfare, repose and religious liberty of each individual of this State. The provisions of this Act are not designed to be discriminatory in any way or to any group, but rather to provide the public with necessary benefits and services at all times, while at the same time protecting the lawful humanitarian, social, and religious rights of each individual.'

Section 2 contains the following definitions: '(a) the 'two (2) consecutive days of Saturday and Sunday' shall mean the time between midnight on Friday and midnight on Saturday and from midnight on Saturday to midnight on Sunday.

'(b) 'Two rest days' means the time between midnight on Friday and midnight on Saturday and from midnight on Saturday to midnight on Sunday.'

Section 3 of the Act provides: 'Any person operating a business who, on both the two (2) consecutive days of Saturday and Sunday, sells, offers for sale, or shall compel, force or oblige his employees to sell any item, except those businesses, activities and items exempted from the provisions of this Act, shall be guilty of a misdemeanor. Each item illegally sold shall constitute a separate offense.'

Section 4 provides for a fine for violating such Act and Section 5 declares the operation of any business, except those exempted, as a public nuisance and authorizes the district attorney or others to bring an equitable proceeding to enjoin the further violation of such Act. Section 6 mandates those businesses which operate on Saturday or Sunday to make all reasonable accommodations to the religious, social and physical needs of employees who costomarily worship on such work days.

Sections 7 and 8 exempt from the provisions of such Act the activities of any person, nonprofit organization or nonprofit corporation conducting an activity solely for charitable or religious purposes, governmental agencies in the conduct of its official duties and its employees in the discharge of their official employment.

Sections 9 and 10 provide for the following additional exemptions: 'Section 9. (a) The prohibitions of this Act are not applicable to the following businesses and activities or to the employees thereof: (1) restaurants, cafeterias, bakeries or other prepared food service facilities; (2) hotels, motels, and other lodging facilities; (3) hospitals and nursing homes; (4) dispensaries of drugs, medicines, toiletries and health needs; provided that areas of any store being utilized for the sale of goods not allowed by this Act shall be closed on one of such consecutive days; (5) ambulance and burial services; (6) generation and distribution of electric power; (7) distribution of gas, oil and other fuels; (8) telephone, telegraph and messenger services; (9) public transportation services, including taxi and limousine services; (10) water, air and land transportation services and attendant terminal facilities; (11) public communication, including newspapers, television, radio and other news media; (12) automobile service stations; (13) manufacturing plants and processing operations; (14) heating, refrigeration and cooling services; (15) ice manufacturing and distribution which are related solely to any of the activities in subparagraphs (1) through (13); (16) repair and maintenance services for equipment and machinery which are related solely to any of the activities in subparagraphs (1) through (15); (17) florist services and horticultural services; (18) plant and industrial protection services; (19) repair or replacement parts and other equipment or accessories necessary to, and safety devices intended for, safe and efficient operation of land vehicles, boats and aircraft; (20) emergency plumbing, heating, cooling and electrical repair and replacement parts and equipment; (21) libraries; (22) educational lectures, forums and exhibits; (23) motion pictures, theatrical and musical performances; (24) athletic and sporting events; (25) parks, beaches and recreational facilities (golf coursed, swimming pools, etc.); (26) scenic, historic and tourist attractions; (27) amusement centers, fairs, zoos and museums; (28) farmers' markets; (29) grocery stores and other stores or businesses which primarily sell unprepared food products, toiletries and health needs; provided that areas of any store being utilized for the sale of goods not allowed by this Act shall be closed on one of such consecutive days; (30) the sale of newspapers, magazines and tobacco products; (31) the sale of cooking, heating and lighting fuel; (32) the sale of gasoline, fuel additives, lubricants and antifreeze; (33) the sale of tires, tubes and tire repair materials; (34) the sale of drugs, medical and surgical supplies, or any other items purchased on the written prescription of a licensed medical practitioner for the treatment of a patient; and (35) the sale and lease of real estate; and (36) the sale of home repair material, equipment, supplies and accessories. (b) The provisions of this Act shall not affect other operations, businesses or activity which, by other provisions of law, are prohibited, permitted or regulated on Sunday.

'Section 10. The provisions of this Act are not applicable to and shall not prohibit: (a) casual transactions between persons, none of whom are thereby carrying on a business or business transaction; (b) agricultural operations such as farming, animal and poultry husbandry, forestry and allied activity; (c) The conduct of the businesses and activities referred to in sections 7, 8 and 9 of this Act; (d) The practice of the healing arts by persons licensed or other-wise authorized to practice the healing arts under the laws of Georgia.'

Section 11 provides for counties to be exempt from or included in all provisions of such Act after referendum. Provisions are then made in such Act for a referendum in 1974 in all counties.

While the Act here under consideration is entitled the Common Day of Rest Act of 1974 and states in its caption that it is 'an Act to limit the doing of business on both the two consecutive days of Saturday and Sunday,' yet a review of the Act discloses that it is in reality an Act which prohibits only 'sales' on both Saturday and Sunday by certain businesses. The Act nowhere limits the operation of any business activity other than sales, and even sales are not limited when done by a business exempted by the Act. Thus, sales may be made by manufacturing concerns whether wholesale or retail. The operator of a service station or a garage who also sells automobiles may make sales of such automobiles under the Act. Yet, a dealer in automobiles who neither operates a service station or a repair shop would not be permitted to be open on both Saturday and Sunday for business.

The Act nowhere curtails the delivery and installation of products sold on another date. Any service contracted for on another date may be performed on the 'day of rest.'

Only 'dispensaries of drugs, medicines, toiletries and health needs' under Section 9(a)(4) and 'grocery stores and other stores or businesses which primarily sell unprepared food products, toiletries and health needs' under Section 9(a)(29) are required to close down a part of their operation on the 'day of rest.'

It is deemed unnecessary to look further into the prohibitions of such Act on various segments of the business community to show that such Act is as patently discriminatory as the Act of 1967 (Ga.L.1967, p. 479 et seq.) which was held in Hughes v. Reynolds, 223 Ga. 727, 157 S.E.2d 746, to violate Art, I, Sec. I, Par. II of the Georgia Constitution of 1945 (Code Ann. § 2-102) and under such decision and the authority cited there must fall. The remaining question for decision is whether or not such Act as a whole must fall or whether, under decisions exemplified by Hancock v. State, 114 Ga. 439, 442, 40 S.E.2d 317; Elliott v. State, 91 Ga. 694, 696, 17 S.E. 1004; and similar cases, and particularly in view of the severability clause included in such Act by the General Assembly (Section 12) when the unconstitutional provisions of such Act are removed is there enough of such Act...