S. S. Kresge Co. v. Davis

• Decision Date: 20 January 1971
• Docket Number: No. 34,34
• Citation: 277 N.C. 654,178 S.E.2d 382
• Court: North Carolina Supreme Court
• Parties: , 64 Lab.Cas. P 52,480 S. S. KRESGE COMPANY, Sky City Stores, Inc., and Zayre of High Point, Inc. v. Robert D. DAVIS, Mayor of the City of High Point, Paul Clapp, William Bencini, Fred M. Yoder, Fred Swartzberg, J. Coy Putman, James R. Shelton, O. ArthusKirkman, and John W. Thomas, Jr., Members of the City Council for the City ofHigh Point,North Carolina, Laurie Pritchett, Chief of Police of the City of High Point,Douglas Albright, Solicitor of the Superior Court, and Ross Strange, DistrictCourt Prosecutor.

Page 382

178 S.E.2d 382

277 N.C. 654, 64 Lab.Cas. P 52,480

S. S. KRESGE COMPANY, Sky City Stores, Inc., and Zayre of High Point, Inc. v. Robert D. DAVIS, Mayor of the City of High Point, Paul Clapp, William Bencini, Fred M. Yoder, Fred Swartzberg, J Coy Putman, James R. Shelton, O. ArthusKirkman, and John W Thomas, Jr., Members of the City Council for the City ofHigh Point,North Carolina, Laurie Pritchett, Chief of Police of the City of High Point,Douglas Albright, Solicitor of the Superior Court, and Ross Strange, DistrictCourt Prosecutor.

No. 34.

Supreme Court of North Carolina.

Jan. 20, 1971.

Rossie G. Gardner and Jerry C. Wilson, High Point, for plaintiff appellants.

Knox Walker, High Point, Atty. for City of High Point; Morgan, Byerly, Post &amp Keziah, by J. V. Morgan; Smith & Patterson, by Norman B. Smith, High Point, for defendant appellees.

LAKE, Justice.

In all respects material to this appeal the ordinance of the City of High Point here in question is identical with the ordinances of the cities of Raleigh, Winston-Salem and Charlotte held valid by this Court in Kresge Co. v. Tomlinson and Arlan's Dept. Store of Raleigh, Inc. v. Tomlinson, 275 N.C. 1, 165 S.E.2d 236; Charles Stores Co. v. Tucker, 263 N.C. 710, 140 S.E.2d 370; and Clark's Charlotte, Inc. v. Hunter, 261 N.C. 222, 134 S.E.2d 364. The businesses operated by the plaintiffs in the City of High Point, as described in their complaint, are substantially the same as those operated by the plaintiffs in each of the above cases. Upon the authority of those decisions, we hold that the ordinance now before us, on its face, is a valid enactment, does not discriminate unlawfully against these plaintiffs, either in its classification of business establishments which may and may not be operated on Sunday or in its classification of types of merchandise which may and may not be sold in establishments permitted to remain open on Sunday, and does not violate any constitutional right of the plaintiffs asserted by them herein. See also: Raleigh Mobile Home Sales, Inc. v. Tomlinson, 276 N.C. 661, 174 S.E.2d 542; Clark's Greenville, Inc. v. West, 268 N.C. 527, 151 S.E.2d 5; State v. Towery, 239 N.C. 274, 79 S.E.2d 513; State v. McGee, 237 N.C. 633, 75 S.E.2d 783; State v. Trantham, 230 N.C. 641, 55 S.E.2d 198. Decisions of the Supreme Court of the United States make it clear that it does not, on its face, violate the provisions of the Fourteenth Amendment to the Constitution of the United States. Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551, rehear. den., 368 U.S. 869, 82 S.Ct. 21, 7 L.Ed.2d 69; McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393; Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221; Dominion Hotel v. Arizona, 249 U.S. 265, 268, 39 S.Ct. 273, 63 L.Ed. 597; Patsone v. Commonwealth of Pennsylvania, 232 U.S. 138, 144, 34 S.Ct. 281, 58 L.Ed. 539.

The plaintiffs contend that notwithstanding the validity of the ordinance, upon its face, it has been rendered void and they are entitled to an injunction against its enforcement because the city officials have discriminated against the plaintiffs in its enforcement. They allege that, from the date of the adoption of the ordinance to the present time, the city executives and law enforcement authorities have 'intentionally, purposely, unjustly and illegally discriminated between plaintiffs and their competitors by selective enforcement * * * against plaintiffs and their employees while openly permitting violations of said ordinance by competitors and their employees,' both by permitting other non-exempt business establishments to open for operation on Sunday and by permitting exempt and non-exempt establishments to sell on Sunday types of merchandise which the ordinance forbids to be sold on Sunday in any establishment. The truth of this allegation is admitted, for the purpose of this appeal, by the demurrer.

This Court has said that the principle of the equal protection of the law, made explicit in the Fourteenth Amendment to the Constitution of the United States, was also inherent in the Constitution of this State even prior to the revision thereof at the General Election of 1970. State v. Glidden Co., 228 N.C. 664, 46 S.E.2d 860; State v. Fowler, 193 N.C. 290, 136 S.E. 709. By the above mentioned revision, it has now been expressly incorporated in Art. I, § 19, of the Constitution of North Carolina.

This constitutional protection against unreasonable discrimination under color of law is not limited to the enactment of legislation. It extends also to the administration and the execution of laws valid on their face. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Ex Parte Virginia, 100 U.S. 339, 25 L.Ed. 676.

In the Yick Wo case the Court said, 'Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.' That was a habeas corpus proceeding brought by a Chinese, imprisoned because he operated a laundry in a wooden building in the City of San Francisco in violation of a city ordinance. The ordinance prohibited operation of a laundry, except in a brick or stone building, without a permit granted by the city's Board of Supervisors. It was admitted that the petitioner, and 200 of his countrymen similarly situated, had petitioned the board for permission to continue their businesses in the same houses in which they had been operating laundries for many years, in accordance with health and fire regulations, and that all petitions from Chinese applicants had been denied, whereas all, save one, of the applications for permits from persons not Chinese had been granted. The Supreme Court of the United States noted that the ordinance provided no standards for the guidance of the board and, therefore, conferred upon it the power to give or withhold permits arbitrarily. However, as above noted, the Court declared that the discriminatory administration of the ordinance was a denial of the equal protection of the law and required the discharge of the prisoner from state custody.

One who violates a law, valid upon its face, does not bring himself within the protection of the Yick Wo rule merely by showing that numerous other persons have also violated the law and have not been arrested and prosecuted therefor. Mere...