State v. Giant of St. Albans, Inc., 6-70

• Citation: 128 Vt. 539,268 A.2d 739
• Decision Date: 29 July 1970
• Docket Number: No. 6-70,6-70
• Parties: , 63 Lab.Cas. P 52,378 STATE of Vermont v. GIANT OF ST. ALBANS, INC.
• Court: United States State Supreme Court of Vermont

Page 739

268 A.2d 739

128 Vt. 539, 63 Lab.Cas. P 52,378

STATE of Vermont v. GIANT OF ST. ALBANS, INC.

No. 6-70.

Supreme Court of Vermont.

July 29, 1970.

James M. Jeffords, Atty. Gen., H. Russell Morss, Jr., Asst. Atty. Gen., and Richard A. Gadbois, State's Atty., for the State.

Kissane & Heald, and Daniel J. Lynch, St. Albans, on the brief, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

BARNEY, Justice.

Two cases involving our Sunday closing law are before us, and were heard together in this Court. One, in which the defending and appealing respondent is a merchandising corporation, Giant of St. Albans, Inc., is here for review of certain criminal convictions. The other, involving Gilfel of Rutland, Inc., which conducts its retail store business as Ames Department Store, passes up certain certified questions and rulings on motions to dismiss, preliminary to trial on the merits. Since all issues raised are more broadly available in a conventional appeal, the convictions of Giant will be reviewed first, but with the benefits of a full presentation on the law by both respondents. If any of the certified questions in the Gilfel matter require further exposition, they will be taken up in a separate opinion to follow.

Giant of St. Albans, Inc., was convicted of eight counts of violating the provisions of 13 V.S.A. § 3301, which provides:

(a) A person shall not, between twelve o'clock Saturday night and twelve o'clock the following Sunday night, exercise any secular business or employment, except works of necessity and charity, nor engage in any dance, nor shall a person operate, promote or engage in any play, game, sport or entertainment, except winter and water sports, tennis, bowling, pool, billiards, golf, horse races and meets or horse shows during such hours which disturb the public peace or for which any compensation is received, directly or indirectly, except as follows:

(1) As otherwise provided in this chapter:

(2) Articles of food may be sold, served, supplied and delivered at any time of the day;

(3) Prepared tobacco, ice, sodas and soft drinks, ice cream, flowers, confectionery, souvenirs, antiques, baskets, newspapers, magazines, prescriptions, patent medicines, drugs, hospital supplies and locally made products may be sold and delivered, and real estate may be shown but not sold and fishing, hunting and other licenses may be sold at any time of the day;

(4) The sale of gasoline, grease, oil and other petroleum products to operators of motor vehicles, motorcycles, motorboats and aircraft may be made at any time during the day and making of repairs including the sale of repair parts to motor vehicles, motorcycles, motorboats and aircraft so as to permit such vehicles to proceed under their own power and the towing of any such vehicle unable to proceed under its own power shall be permitted at any time during the day, but the sale of motor vehicles, motorcycles, boats, motorboats, outboard motors and aircraft is prohibited;

(5) The sale and rental of skiing, skating, golf, fishing, tennis, trap shooting, bowling, swimming and water skiing equipment, boats, motorboats and outboard motors, within ten airline miles of areas devoted to such sports shall be permitted at any time during the day but such sale shall not be permitted at any other place;

(6) The operation of any public utility which is subject to regulation by the public service board shall be permitted;

(7) Pari-mutuel running and harness races or meets.

(b) Notwithstanding the provisions of this section, any secular place of business not otherwise prohibited by law may be operated between twelve o'clock Saturday night and twelve o'clock the following Sunday night if the natural person managing or in control of the management of the place of business conscientiously believes that the seventh day of the week or the period which begins at sundown on Friday night and ends at sundown on Saturday night should be observed as the Sabbath, and causes all places of business in Vermont which he manages or over which he has control to remain closed for secular business during the entire period of twenty-four consecutive hours which he believes should be observed as the Sabbath.

Upon being charged with Sunday operation in violation of this statute, the respondent consented to trial by court on agreed and conceded facts. These established that the respondent was open for business between one and six p. m. on the Sunday charged. Prosecution was based on the sales, at that time, of a gallon of paint, a paint brush, a steel pinch bar, a movie camera projection lamp, a pyrex cake plate, a pair of undershorts, a box of Christmas cards and a pair of nylon stockings. The respondent's business is that of a self-service general department store. Its stock includes both items exempted under 13 V.S.A. § 3301, and items not so exempted. The non-exempted items constitute the major portion of the respondent's business, so much so that it is economically prohibitive for the respondent to open on Sunday and sell only exempted items. The respondent was not eligible under 13 V.S.A. § 3301(b) to substitute a Saturday closing, and, in fact, was not closed any other day of the week. The conduct of business that Sunday did not, in any manner, disturb the public peace or tranquility. All customers were accommodated in its private parking area without traffic congestion. It was agreed that the respondent was not eligible to sell sporting goods on Sunday, being beyond the ten airline mile limit. The five hours of Sunday operation represented over ten percent of the week's gross sales, even though the store was open twelve hours on all other days. The employees on duty volunteered to work, and were paid on the basis of time and one-half for each hour worked, with a full day off during the week.

Each item listed in the facts as being sold was a separate count in the information, and the trial court found the respondent guilty on all counts. A fine of $200 was assessed on the first count and $10 on each of the remaining counts. The prosecution was initially challenged by a motion to dismiss, and that challenge renewed by a motion in arrest of judgment. With fines imposed on each count as a separate offense, this was made an issue by the respondent, also, by his claim that there was but one offense instead of eight. Execution of the sentences was stayed and this appeal perfected.

On May 29, 1961, the United States Supreme Court handed down four opinions confirming the right of state legislatures to variously regulate, within certain constitutional limits, the days on which it shall be legal to engage in certain business activities. These cases were McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393; Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536; Two Guys From Harrison-Allentown v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551 and Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563. These cases are binding on this Court with respect to standards imposed on our statutes in this field by the U.S. Constitution, including the Establishment Clause of the First Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and govern all constitutional issues brought before us in this appeal.

Since we are dealing with an acknowledged power in the legislature to enact regulatory measures, it is not for this Court to pass upon the propriety of the legislative election to exercise that power, nor to question the wisdom of resort to it. Our function is only to determine whether or not the manner or its exercise meets constitutional standards and violates any fundamental rights. Unless the unkempt form of the statute contributes to the infringement of constitutional rights, it is not grounds for invalidation.

The religious origin of the statute before us cannot be questioned. This is true of most such enactments. Such beginnings do not condemn the law as one respecting the establishment of religion in violation of the First Amendment, if subsequent development has sufficiently altered its purpose from one in aid of religion to one of setting aside a non-religious day of rest and recreation. McGowan v. Maryland, supra, 366 U.S. 420, 449, 81 S.Ct. 1101, 6 L.Ed.2d 393.

A brief review of the history of this statute will demonstrate just such a change in purpose from the implementation of proper religious observance to one of setting aside a time for general rest and recreation. Going back to the General Laws of 1917 we find section 7097 aiming its proscription not only at the promoter and organizer of dances, games and other Sunday activities, but at all the participants, including one who resorts to a house of entertainment for amusement and recreation on Sunday. Section 7099 forbad Sunday hunting.

In 1921, No. 215 of the Public Acts of that year relaxed the proscription on play, games, sports or entertainment to those for which compensation was received. No. 215 of the Public Acts of 1937 totally repealed the prohibition on Sunday hunting. Two years later No. 230 of the Public Acts of 1939 marked a complete change in the emphasis of the law. Winter sports, tennis and golf were totally excluded from the operation of the statute, and towns were given the option of voting to permit Sunday baseball, movies, lectures or concerts. The hours were variously limited to afternoon and evening, but admission fees were permissible. No. 70 of the Public Acts of 1949 added basketball and football to those options, and in 1955 Sunday...