State v. Footlick
| Decision Date | 02 June 1965 |
| Docket Number | No. 38978,38978 |
| Citation | 31 O.O.2d 411,2 Ohio St.2d 206,207 N.E.2d 759 |
| Parties | , 31 O.O.2d 411 The STATE of Ohio, Appellant, v. FOOTLICK et al., Appellees. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. The question of whether a drugstore opened on Sunday was within the work-of-necessity exception to Section 3773.24, Revised Code, is not concluded by a showing that drugs and medicines were offered for sale, and evidence that other products were purchased by an officer will support a conviction under an affidavit charging that the defendant opened a place for the transaction of business on Sunday.
2. Neither the character of the business (drugstore) nor the particular commodities sold are conclusive of the question of whether the opening of a store on Sunday falls within the work-of-necessity exception to Section 3773.24, Revised Code (Sunday Closing Law), and that question is one of fact to be determined under all the circumstances surrounding the particular case. (State v. Kidd, 167 Ohio St. 521, 150 N.E.2d 413, approved and followed.)
Defendants, appellees herein, who were store managers of Gray Drug Stores in Wooster, were charged with violations of Section 3773.24, Revised Code, which makes it unlawful to 'suffer or permit a building or place to be open for transaction of business * * * on Sunday.' The business transacted concerned sales to policemen of wrapping paper, an electrical extension cord, cigarettes, powder and a powder puff.
Defendants were charged by affidavits filed in the Wooster Municipal Court under Section 2935.09, Revised Code, and were convicted. Defendants appealed to the Court of Appeals which reversed the judgment on the ground that no complaints had been filed within ten days of the violations as specified in Section 3773.24, Revised Code. Other assigned errors relating to the convictions were held to be without merit.
The Court of Appeals, finding its judgment to be in conflict with that in the case of State v. Hamilton House Furniture, Inc. 118 Ohio App. 63, 193 N.E.2d 299, certified the record to this court for review and final determination.
James K. Leedy, Pros. Atty., and Richard Kauffman, Wooster, for appellant.
Funk, Funk & Eberhart, Edward K. Eberhart, Wooster, Jones, Day, Cockley & Reavis and Arthur L. Dougan, Cleveland, for appellees.
The question upon which this cause was certified to this court has meanwhile been determined adversely to the position taken by the Court of Appeals for Wayne County in the case of State v. Maynard (decided December 29, 1964), 1 Ohio St.2d 57, 203 N.E.2d 332, in which the syllabus reads:
However, '[c]ertification of the record of a case to the Supreme Court because of conflict between judgments of Courts of Appeals upon any question, brings the entire case before the Supreme Court for review.' Couk v. Ocean Accident & Guarantee Corp., Ltd., 138 Ohio St. 110, 33 N.E.2d 9; Pettibone v. McKinnon, 125 Ohio St. 605, 183 N.E. 786. Therefore, we consider the error additional to the error which was the basis of the certification, which error if well made would justify the judgment of the Court of Appeals.
Section 3773.24, Revised Code, as pertinent here, reads:
'No person, firm, or corporation shall engage in common labor or suffer or permit a building or place to be open for transaction of business, or require a person in his employ or under his control to engage in common labor or to open a building or place for the transaction of business on Sunday. * * *
'This section does not apply to work of necessity or charity * * *.'
Defendants contend that a drugstore which dispenses needed drugs on a Sunday is a work of necessity, and that once the store is opened for such purpose it may also sell other items which are not such as to make their sale on Sunday arguably a work of necessity.
A similar argument was advanced in the case of State v. Fantastic Fair and Karmil Merchandising Corp. (1962), 158 Me. 450, at page 464, 186 A.2d 352, wherein the statute, among other things, excepted from its operation 'stores selling gifts or souvenirs.' In the opinion it is stated: ...
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