Skag-Way Dept. Stores, Inc. v. City of Omaha

Decision Date11 February 1966
Docket NumberSKAG-WAY,No. 36078,36078
Citation179 Neb. 707,140 N.W.2d 28
PartiesDEPARTMENT STORES, INC., a Corporation, Appellant, v. The CITY OF OMAHA, Nebraska, a Municipal Corporation et al., Appellees.
CourtNebraska Supreme Court

Syllabus by the Court

1. An ordinance of a city which has for its sole purpose the closing of legitimate business on Sunday and other Sabbatical days to promote religious observance does not promote the health, safety, peace, and good order of the city's inhabitants.

2. A legislative body may make a reasonable classification of persons for purposes of legislation concerning them, but the classification must rest upon real differences in situation and circumstances surrounding the members of the class relative to the subject of the legislation which render appropriate its enactment.

3. In determining whether or not a classification of persons in unconstitutional, discrimination is the essence of classification and is not objectionable unless founded upon distinctions which the court is compelled to find unreasonable.

4. A city ordinance providing for Sunday closing cannot prohibit that which is harmless in itself, or require that to be done which does not promote the health, safety, peace, and good order of society.

5. A prohibition of activities on Sunday for the promotion of the health, safety, peace, and good order of society by requiring a periodic day of rest is sustainable as a proper exercise of the police power if the classification of persons to which it applies is reasonable.

6. In order to determine whether or not persons or transactions within the provisions of an act are on a different basis from those excluded, the purpose of the act is of great importance. The objects and purposes of a legislative act afford the basis for determining the propriety of the classification.

7. Legislation which is directed to a portion of a class, and the object of the legislation applies equally to the whole as well as the part, the legislation is discriminatory and contravenes constitutional provisions requiring uniformity as to class.

8. Where prior decisions of a court are based on distinctions and circumstances which no longer exist, it is the province of the courts to reexamine their holdings in the light of the changed conditions and circumstances in determining the constitutionality of legislation.

Cunningham & Blackburn, Grand Island, for appellant.

Herbert M. Fitle, City Atty., Edward M. Stein, Frederick, A. Brown, Sebastian, J. Todero, Walter J. Matejka, James E. Fellows, Allen L. Morrow, P. A. Spenceri, Omaha, for appellees.

Heard before WEITE, C. J., and CARTER, SPENCER, BROWER and McCOWN, JJ.

CARTER, Justice.

This is an action by Skag-Way Department Stores, Inc., against the City of Omaha, its mayor, and chief of police to enjoin the threatened enforcement of Chapters 19.12 and 19.24 of the municipal code of the city of Omaha. The defendants filed an answer and cross-petition asserting the validity of the questioned code provisions and praying that the court so hold. The trial court found for the defendants and dismissed the action. The plaintiff has appealed.

Section 19.12.010 of the code provides that it shall be unlawful for any person to sell, offer to sell, give away, or dispose of, in any way, any new or used clothing, shoes, jewelry, ready to wear items, or hardware, on Sunday; and all places of business from which such goods are ordinarily sold, as the main or primary businesses of such places, shall be closed on Sunday, provided that no restriction therein contained shall extend to those who conscientiously observe the seventh day of the week as the Sabbath and pursuant to such observation shall keep their places of business closed on the seventh day of the week commonly known as Saturday. Penalty provisions are the provided.

Section 19.24.010 provides that it shall be unlawful for any person on Sunday to open to the public, or to sell, or offer to sell, give away or dispose of in any way from any store, establishment, or location where grocerties, fruits, or vegetables are sold, any groceries, fruits, vegetables, or articles ordinarily sold from a grocery, fruit, or vegetable store or stand, or to open any meat market, sell, offer to sell, or give away from such meat market, any meats or other products ordinarily sold or handled in meat markets, and all such stores, establishments, and meat markets shall be closed on said day, provided nothing contained therein shall extend to those who conscientiously observe Saturday as the Sabbath and pursuant to such observation shall close and keep closed their store or meat market on Saturday. Penalties are then imposed for a violation of this section of the code.

The plaintiff is engaged in the retail department store business in Omaha. It has for sale all of the articles of merchandise set out in the cited code provisions and many more such as food and beverages for immediate consumption, petroleum products, gardening equipment, sporting goods, drugs, optical goods, radio and television sets, dry goods, tobacco, confections, tools, and newspapers.

The authority of a city to enact ordiances under the police power for the preservation of the peace, good order, safety and health of its inhabitants is not here questioned. State v. Somberg, 113 Neb. 761, 204 N.W. 788. The questions here raised are whether or not it can be said that the questioned provisions of the municipal code are for the preservation of the peace, good order, safety, and health of the city's inhabitants and, second, whether or not the provisions are discriminatory as to the sale of goods of the same class. Early cases in this country sustained Sunday closing on the theory that it was within the police power to promote a day of religious worship in that it promoted the helath, peace, safety, and good order of society. This theory, in part at least, has been carried into the code sections presently before us. The sections appear to be grounded on the protection of a Sabbatical day rather than for the preservation of the peace, good order, safety, and health of the inhabitants of the city. The modern cases on the subject hold that Sunday closing laws based solely on Sundsay as a Sabbatical day conflict with the First Amendment to the Constitution of the United States prohibiting any law respecting an establishment of religion, or prohibiting the free exercise thereof. We fail to see, and it has not been pointed out to us, how the Sunday closing...

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