State v. Cranston, 6537

• Decision Date: 07 December 1938
• Docket Number: 6537
• Citation: 59 Idaho 561,85 P.2d 682
• Parties: STATE, Respondent, v. RONALD V. CRANSTON and FORD C. CLIFF, Appellants
• Court: Idaho Supreme Court

85 P.2d 682

59 Idaho 561

STATE, Respondent, v. RONALD V. CRANSTON and FORD C. CLIFF, Appellants

No. 6537

Supreme Court of Idaho

December 7, 1938

SUNDAY CLOSING LAW-STATUTES-CONSTITUTIONAL LAW.

1. That times and conditions have changed affords no reason for holding unconstitutional an act which was once approved on judicial review and has stood unchallenged for nearly a third of a century since such decision was announced.

2. The Sunday closing statute is constitutional. (I. C. A., sec 17-2503.)

3. Alleged fact that it was common knowledge that, with respect to many phases of the Sunday Closing Law, it had absolutely been ignored, could not be considered by court in passing on validity of statute. (I. C. A., sec. 17-2503.)

4. Supreme Court has power to construe but not to amend or repeal statutes.

5. A change of public opinion with reference to a law cannot be considered by court in determining power of legislature to enact a law or the duty of the courts and administrative officers to enforce it.

6. The keeping open of a grocery store for the sale of cheese, bread and butter constituted a violation of the Sunday Closing Law as against contention that cheese, bread and butter were "refreshments" within statutory exemption, since fact that word "refreshments" in statute was immediately preceded by modifying word "nonintoxicating" and was followed by an exemption of candies and fresh fruits, indicated that legislature intended the word "refreshments" to apply only to liquids. (I. C. A., sec. 17-2503.)

7. The exemptions, contained in the Sunday Closing Law, limited to places primarily established for sale of certain necessaries or where the articles are made or produced, does not constitute unjust discrimination, since it is not necessary to exempt all the places of business where such articles might or can be sold. (I. C. A., sec. 17-2503.)

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Charles F. Koelsch, Judge.

Prosecution for violation of Sunday Closing Law, sec. 17-2503, I. C. A. Judgment of conviction. Affirmed.

Affirmed.

Elam &amp Burke and Delana & Delana, for Appellants.

Sunday closing laws, to be upheld, must provide for a general cessation of business and labor. Section 17-2503, I. C. A. is not in this class, but singles out as unlawful only one act, that is, of keeping open a place of business for certain purposes, while permitting all other classes of business and labor to be performed. (Sec. 17-2503, I. C. A.; Ex parte Scaranino, 7 Cal. (2d) 309, 60 P.2d 288; Ex parte Westerfield, 55 Cal. 550, 36 Am. Rep. 47; Elliott v. State, 29 Ariz. 389, 242 P. 340, 46 A. L. R. 284.)

Section 17-2503, I. C. A., is invalid and unconstitutional in that it is in violation of the fourteenth amendment of the federal constitution, as it deprives the defendants of their property without due process of law, denies them the equal protection of the law, and abridges the privileges and immunities of the citizens and the defendants. (Mergen v. City of Denver, 46 Colo. 385, 104 P. 399; Ex parte Jentzsch, 112 Cal. 468, 44 P. 803, 32 L. R. A. 664; State v. Granneman, 132 Mo. 326, 33 S.W. 784; Ragio v. State, 86 Tenn. 272, 6 S.W. 401.)

Said Sunday Closing Law is also in violation of section 1, article I, and section 19, article III of the constitution of the state of Idaho, as it deprives the defendants of the right of acquiring, possessing and protecting their property, and is local, special and class legislation, and unlawfully discriminates between citizens engaged in keeping open a place of business for the sale of goods, wares and merchandise, and those engaged in any other lawful business or labor. (City of Pasadena v. Stimson, 91 Cal. 238, 27 P. 604; Ex parte Scaranino, 7 Cal. (2d) 309, 60 P.2d 288).

J. W. Taylor, Attorney General, R. W. Beckwith, E. G. Elliott, Lawrence B. Quinn and D. W. Thomas, Assistant Attorneys General, for Respondent.

Words and phrases should be given their ordinary and approved usage in a statute (sec. 70-113, I. C. A., and State v. Dolan, 13 Idaho 693, 92 P. 995, 14 L. R. A., N. S., 1259). This law has been in effect in Idaho since 1907 and has been interpreted by this court in State v. Dolan, supra, and In re Jacobs, 13 Idaho 720, 92 P. 1003, and therefore the interpretation placed on the law by the court, where a long period has expired since the interpretation without amendments affecting this phase of the law, the court is without power at this time to change the interpretation ( In re Speer, 53 Idaho 293, 23 P. 239, 88 A. L. R. 1086).

AILSHIE, J. Holden, C. J., Budge and Givens, JJ., concur. Morgan, J., did not participate in the decision.

OPINION

AILSHIE, J.

This is an appeal from a conviction under the Sunday closing statute, sec. 17-2503, I. C. A. The statute was originally enacted by the legislative session of 1907 (1907 Sess. Laws p. 223). As originally enacted the section (2) here involved read as follows:

"It shall be unlawful for any person or persons in this State to keep open on Sunday for the purpose of any business, trade, or sale of goods, wares, or merchandise, any shop, store, building, or place of business whatever: Provided, that hotels and restaurants may furnish lodging and meals, and Provided, That this section shall not apply to livery stables, or to stores in so far as the sale of medicines or sick room supplies are concerned, or to undertakers while providing for the dead, or to news stands in so far as the quiet sale and delivery of daily papers and magazines is concerned, nor to sale of non-intoxicating refreshments, candies and cigars.

"Any person or persons violating this section shall be guilty of a misdemeanor and on conviction thereof said offender shall be fined in any sum not less than twenty-five dollars ($ 25.00) nor more than one hundred dollars ($ 100.00), or shall be imprisoned in the county jail not to exceed thirty days and upon a second conviction by both such fine and imprisonment."

The validity of this act was sustained in State v. Dolan, 13 Idaho 693, 92 P. 995, 14 L. R. A., N. S., 1259, and followed in In re Jacobs, 13 Idaho 720, 92 P. 1003. In 1911 this statute was amended (1911 Sess. Laws, chap. 101, p. 344) in reference to the sale of non-intoxicating refreshments, as follows: "nor to the sale of non-intoxicating refreshments, when the same are not sold or dispensed over a saloon bar, nor to candies, fresh fruits and cigars." Subsequent to the amendment of 1911 the constitution was amended so as to prohibit the manufacture and sale of intoxicating liquors (art. 3, sec. 26, Const.) Consequently the law no longer recognized a "saloon bar" and no kind of refreshments could be lawfully dispensed therefrom. The act here in question was again amended in 1921 and the amendment dropped the part immediately following the word "refreshments" which related to sales "over a saloon bar" and added further exemptions, so that the act after amendment reads as follows:

"It shall be unlawful for any person or persons in this State to keep open on Sunday for the purpose of any business, trade, or sale of goods, wares, or merchandise, any shop, store, building, or place of business, whatever: Provided, That hotels and restaurants may furnish lodging and meals; and Provided, That this section shall not apply to livery stables, garages, automobile service station or stores insofar as the sale of medicines or sick room supplies is concerned, or to undertakers while providing for the dead, or to news-stands in so far as the quiet sale and delivery of daily papers and magazines is concerned, nor to the sale of nonintoxicating refreshments, . . . . nor to candies, fresh fruits and cigars, nor to bakeries insofar as the quiet sale of their products is concerned, or shoe shining stands, or common carriers insofar as the receipt, transportation or delivery of express shipments of ice cream, bakery goods, dairy or perishable farm products is concerned. Any person or persons violating this section shall be guilty of a misdemeanor, and on conviction thereof, shall be fined in any sum not less than $ 25 nor more than $ 100, or shall be imprisoned in the county jail not to exceed 30 days, and, upon a second conviction, shall be punished by both such fine and imprisonment." (Italics supplied.) and now comprises sec. 17-2503, I. C. A.

In the meanwhile the state has had a local option law (1909 Sess Laws p. 9), constitutional and statutory prohibition (sec. 26, art. 3, Const., amended Nov. 6, 1934, 1935 Sess. Laws p. 375) and is at present itself engaged in buying, selling and dispensing liquor (Idaho Liquor Control Act, 1935 Sess. Laws, chap. 103, p. 222), and yet the Sunday Closing Law still remains on the statute books in substantially the same terms as originally enacted with the exceptions only as above noted. In other words, for a period of practically 32 years, during which time constitutions, laws, customs, practices and even morals have undergone the greatest change ever experienced in the same length of...