Spokane County v. Valu-Mart, Inc.

• Decision Date: 10 November 1966
• Docket Number: No. 37753,VALU-MAR,INC,37753
• Citation: 419 P.2d 993,69 Wn.2d 712
• Court: Washington Supreme Court
• Parties: COUNTY OF SPOKANE, Respondent, v., a corporation, Appellant.

Page 712

69 Wn.2d 712

419 P.2d 993

COUNTY OF SPOKANE, Respondent, v. VALU-MART, INC., a corporation, Appellant.

No. 37753.

Supreme Court of Washington, En Banc.

Nov. 10, 1966.

Carl Maxey, Riner E. Deglow, Spokane, for appellant.

George A. Kain, Pros. Atty., Edward J. Parry, Deputy Pros. Atty., Spokane, for respondent.

HALE, Judge.

Has Spokane County, in an ordinance affecting Sunday business, gone beyond the legitimate police power? The Board of Spokane County Commissioners enacted ordinance No. 56--436 November 20, 1956, making it a criminal offense to operate a place of business on Sunday for the purpose of selling major household appliances, furniture and other described household furnishings. Valu-Mart, a large department store, now appeals from a judgment and sentence of conviction which imposed a $250 fine plus costs of $33.20, and challenges the constitutionality of the ordinance on formally agreed and stipulated facts.

The ordinance (Spokane County Code 7.12.010 et seq.) reads:

An ordinance relating to public peace and morals, prohibiting the sale of new and used furniture, major household appliances, television sets, floor coverings, bedding and draperies on Sunday, providing a penalty for the violation thereof, repealing all ordinances or parts of ordinances in conflict therewith and declaring an emergency.

The County of Spokane does ordain:

Section 1. Definitions. The term 'furniture' as used in this ordinance shall mean the main movable household articles used in living areas and outdoor porches and patios. Such furniture shall include, but is not limited to, chairs, tables, beds, davenports, sofas, dressers, desks, and whether the same are new or used.

The term 'household appliances' as used in this ordinance shall mean stoves, ranges, refrigerators, hot water heaters, space heaters, electric sinks, dishwashers, garbage disposals, clothes dryers, clothes washers, and freezers, and whether the same are new or used.

The term 'floor coverings' as used in this ordinance shall mean rugs, carpets, rug pads, as distinguished from tile, linoleum, or such like material as is permanently attached to the dwelling.

The term 'bedding' as used in this ordinance shall mean mattresses, mattress pads, bed springs, blankets, pillows and sheets.

The term 'draperies' as used in this ordinance shall mean draped or hung fabric, as distinguished from flat or roll type window blinds.

The term 'bartering, exchanging or selling at retail' as used in this ordinance shall mean those transactions subject to the Washington State Retail Sales Tax.

Section 2. Sales of furniture, major household appliances, television sets, floor coverings, bedding and draperies prohibited on Sunday. No person, firm or corporation, whether owner, proprietor, agent or employee, shall keep open, operate or assist in keeping open or operating any place or premises or residence, whether open or enclosed, for the purpose of selling, bartering or exchanging or offering for sale, barter or exchange at retail any new or used furniture, major household appliances, television sets, floor coverings, bedding and draperies on the first day of the week, commonly called Sunday.

This section shall not apply to a private citizen selling, exchanging or bartering his privately oned furniture, major household appliances, television sets, floor coverings, bedding and draperies used in his residence, from his own place of residence.

Section 3. Penalty. Any person, firm, or corporation violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine in any sum not exceeding Two Hundred Fifty Dollars ($250.00) or by imprisonment in the county jail for a term not exceeding ninety (90) days, or by both such fine and imprisonment.

Section 4. Repeals. All ordinances or parts of ordinances in conflict herewith are hereby repealed.

Section 5. Effective Date. An urgency and emergency for the passage of this ordinance is hereby declared to, and does, exist, and the same shall take effect and be in force from and after its passage.

Valu-Mart does not here question the validity of Sabbath laws generally, RCW 9.76.010 ¹ in particular, but confines its attack to the proposition that the ordinance constitutes an arbitrary, discriminatory and unreasonable exercise of the police power, describing this law as one having no reasonably discernible relationship to the public peace, health, safety, morals or welfare. Accordingly, we do not review the plethora of authority having to do with Sabbath legislation, ² nor analyze our own decisions covering this subject, ³ but limit this inquiry to ascertaining if the ordinance can be said to have any rational connection with the public peace, safety, health, morals or welfare.

We are not concerned with the wisdom of this ordinance, for the people through their lawfully designated representatives have reserved unto themselves the constitutional power to enact all kinds of laws, both wise and foolish, good and bad, effective or ineffectual. Our sole function is simply to determine if Spokane County had the constitutional power to enact and enforce this ordinance.

This being a measure to prohibit the carrying on of a particular calling or business on a specified day of the week relating to the sale or offering for sale of designated articles and kinds of articles, constitutes a use of the police power toward and concerning certain classified activities and categories of articles of commerce. It classifies both the business and the commodities dealt in by the business. Where there is a classification of both conduct and things for purposes of regulation under the police power, the classification must operate equally upon every activity and thing falling within each class, and must have both a reasonable and rational relationship toward fostering or preserving the public peace, health, safety, morals or welfare.

We can better understand the ordinance if we compare it with other legislation having apparently similar aims. First, it does not pertain to a public utility or other regulated industry, business, profession, calling, trade or activity deemed in law to be affected with the public interest. It does not concern the handling of peculiarly sensitive materials or products which, because of their inherently dangerous or unique qualities, renders them amenable to almost plenary police regulations, such as alcoholic liquors, drugs and pharmaceuticals, explosives, inordinately heavy and massive equipment, highvoltage electrical installations, and the like. It does not relate to the handling of articles or the performing of services which, because so conceivably affecting the public health, safety or security, may be carried on only by licensed personnel. No one has argued that furniture and appliance stores should, as are barber shops, loan companies, public utilities, hotels, grain warehouses, stock exchanges and innumerable other similarly identified businesses, be subject to regulation for the protection of the public.

The things forbidden to be sold under this ordinance fall within the most ordinary and mundane categories of commerce, subject to no greater regulation under the police power than groceries, minor appliances, fuel oil, coal, wood, building materials, shrubbery, garden tools, automobile accessories, and a myriad of other articles and devices, most of which are offered for sale by Valu-Mart and which, by definition, are excluded from the ordinance. These latter articles and thousands like them differ in no respect as to their effect upon the public health, safety, morals and welfare than those which cannot be offered for sale on Sunday under the ordinance. Curiously, although the measure specifically prohibits the sale of television sets on Sunday, it allows the sale of radios. The reason remains obscure unless radios must be generally classified as minor appliances and television sets as major ones. Would this distinction apply if the television set be small and the radio set large? And what of sterophonic record players, many types of which must be classified as major, both in price and size, yet presumably may be sold on Sunday under this ordinance.

Nor should the ordinance be deemed day-of-rest legislation, designed to provide every employed person with a day of rest during the work week. State v. Grabinski, 33 Wash.2d 603, 606, 206 P.2d 1022, 1024 (1949), cited by respondent, is actually based on the premise that 'Such legislation * * * should be regarded as day-of-rest legislation rather than as Sabbath or Sunday closing laws,' and supports this proposition with a statement from City of Seattle v. Gervasi, 144 Wash. 429, 258 P. 328 (1927), that the establishment of a compulsory day of rest in each week is a legitimate exercise of the police power. We affirm the rule that legislation designed to assure one or more days of rest each week lies within the ambit of the police power, but observe that the ordinance under inquiry does not purport to achieve this laudable attainment.

Nowhere does the ordinance imply that the police power is exerted for the health, welfare, morals, and safety of the county by curtailing the hours during which an employee--man, woman or child--may be required by his employer to labor. So far as pertinent to Valu-Mart--which operates and carries for sale thousands of items in its drug, appliance, housewares, toy, record, luggage, automotive accessories and supplies, hardware and sporting goods, women's and children's apparel, men's and boys' apparel, shoe, jewelry, camera and presumably grocery departments--all of these departments may be maintained in full operation on Sunday as long as the clerks do not sell one of the prohibited items.

Neither is this an ordinance to preserve the peace and quiet of the Sabbath. A limitation on sales of a few lawful and nonsensitive articles, while allowing sales...