State v. Grabinski

• Decision Date: 26 May 1949
• Docket Number: 30788.
• Citation: 206 P.2d 1022,33 Wn.2d 603
• Court: Washington Supreme Court
• Parties: STATE v. GRABINSKI.

206 P.2d 1022

33 Wn.2d 603

STATE v. GRABINSKI.

No. 30788.

Supreme Court of Washington

May 26, 1949

Department 1

Joe Grabinski was convicted of selling uncooked meats and groceries on the first day of the week, and he appeals.

Judgment affirmed.

Appeal from Superior Court, Yakima County; Dolph Barnett, judge.

Velikanje & Velikanje and John S. Moore, Jr., Yakima, for appellant.

Owen Clarke, Prosecuting Attorney, and Gordon Hanson, Yakima, for respondent.

HILL Justice.

This is an appeal from a conviction for violating Rem.Rev.Stat. § 2494, in that appellant sold uncooked meats and groceries on the first day of the week. That section of our statute is as follows:

'Every person who, on the first day of the week, shall promote any noisy or boisterous sport or amusement, disturbing the peace of the day; or who shall conduct or carry on, or perform or employ any labor about any trade or manufacture except livery-stables, garages and works of necesity or charity conducted in an orderly manner so as not to interfere with the repose and religious liberty of the community; or who shall open any drinking saloon, or sell offer or expose for sale, any personal property, shall be guilty of a misdemeanor: Provided, that meals, without intoxicating liquors, may be served on the premises or elsewhere by caterers, and prepared tobacco, milk, fruit, confectionery, newspapers, magazines, medical and surgical appliances may be sold in quiet and orderly manner. In works of necessity or charity is included whatever is needful during the day for the good order or health or comfort of a community, but keeping open a barber-shop, shaving or cutting hair shall not be deemed a work of necessity or charity, and nothing in this section shall be construed to permit the sale of uncooked meats, groceries, clothing, boots or shoes.'

Appellant contends that the act is class legislation and unconstitutional, as violative of amendment 14, § 1, of the constitution of the United States, and Art. I, §§ 3 and 12, of the constitution of the state of Washington.

Appellant concedes that these contentions were decided adversely to him in Seattle v. Gervasi, 144 Wash. 429, 258 P. 328, but urges that conditions have so changed since the statute was enacted in 1909 and since we last passed upon its constitutionality in the Gervasi case in 1927, that a different conclusion should now be reached.

It is pointed out that there is a general and growing disregard for any restrictions on the use that man should make of the Sabbath; that the state game commission, under the authority vested in it by the legislature, Rem.Supp.1947, § 5992-24, regularly fixes Sunday as the opening of the game fishing season and the hunting season for game birds and deer; that the state horse racing commission, under like authority to determine the place and time of race meets, authorizes horse racing (and, of course, pari-mutuel betting) on Sunday, Rem.Rev.Stat. (Sup), § 8312-4. The argument might well be summarized in Lowell's lines:

'New occasions teach new duties; Time makes ancient good uncouth;

They must upward still, and onward, who would keep abreast of Truth.'

We must decline to consider this argument as it relates to Sabbath observance. Whether an individual's conduct is a violation of the Fourth Commandment (Exodus 20:8-11; Deuteronomy 5:12-15) must first be determined in the court of his own conscience, and is subject to review by an infinitely higher Court than this. We have neither original nor appellate jurisdiction, and the argument that 'Time makes ancient good uncouth' should be reserved for the Court that ultimately passes upon the issue of violations of the Commandments.

The statute which the appellant was convicted of violating makes no reference to the Sabbath, but prohibits certain activities on the first day of the week; it has been upheld by this court, not as an implementation of the Fourth Commandment, but as a proper exercise of the police power. As was said in State ex rel. Walker v. Judge, 39 La.Ann. 132, 139, 1 So. 437 (quoted in Seattle v. Gervasi, supra, 144 Wash. page 433, 258 P. 330):

'There exists a remarkable consensus of authority that the establishment of a compulsory day of rest in each week is a legitimate exercise of the police power.'

Such legislation as that under consideration should be regarded as day-of-rest legislation rather than as Sabbath or Sunday closing laws. It is clear from a reading of the opinion in the Gervasi case that, had the legislature selected the second, the third, or any other day of the week, the decision would have been the same.

In 1909, when Rem.Rev.Stat. § 2494, was enacted, the first day of the week naturally was selected as the compulsory day of rest, because for centuries trade, commerce, and industry had generally ceased on that day. That the reason for cessation was originally religious is undisputed; it was the day adopted by the great majority as their Sabbath and for a fulfillment of the Fourth Commandment. Secular law recognized, from a social standpoint, the desirability of a day of rest in seven, and quite naturally selected the day already established by the mores of the people.

The legislature but recently authorized the closing of banks on Saturday, Rem.Supp.1947, § 3292a, and the closing of public offices on Saturday afternoon, Rem. Supp.1941, § 9963-1, and it would seem that the trend is toward the establishment of two days of rest each week. The desirability of having the same days of rest for everyone, so far as possible and convenient, is made obvious when, in Olympia, for example, one tries to get a haircut on Monday or a tooth filled on Thursday, those being the days of rest adopted by the tonsorial artists and the dental profession in that city, in addition to the one prescribed by custom and Rem.Rev.Stat. § 2494. If it is ultimately decided that two days of rest each week are desirable, it would be natural for the legislature to select the last day of the week for the additional day, because it is a growing custom so to do, and because that, likewise, is a day which a considerable number observe as the Sabbath.

However, appellant argues that Rem.Rev.Stat. § 2494, is unconstitutional because it excepts tobacco, milk, fruit, confectionery, newspapers, magazines, and medical and surgical supplies from the general prohibition of the sale of personal property on the first day of the week, and is therefore discriminatory. As long as the legislature limits its exceptions to specific commodities, such enactments are almost universally upheld. No agreement is to be expected between different individuals as to what items should be sold on the day of rest, and it is generally held that the legislature has the right to designate the articles which can be legally sold on that day. Seattle v. Gervasi, supra; State v. Diamond, 56 N.D. 854, 219 N.W. 831; State ex rel. Hoffman v. Justus, 91 Minn. 447, 98 N.W. 325, 64 L.R.A. 510, 103 Am.St.Rep. 521, 1 Ann.Cas. 91. Accord: Ness v. Supervisors of Elections of Baltimore City, 162 Md. 529, 160 A. 8; Ex Parte Johnson, 77 Okl.Cr. 360, 141 P.2d 599. See, also, annotations, 46 A.L.R. 290, 119 A.L.R. 752.

There is no restriction as to who may sell the designated articles, and no burden is imposed upon any person which is not imposed upon all persons in the same class. In the Gervasi case, supra, we quoted an excellent statement from State v. Dolan, 13 Idaho 693, 715, 92 P. 995, 1002, 14 L.R.A.,N.S., 1259:

'* * * What reason the legislature had for making the particular classification they did is a matter upon which no two minds might agree. To one person, it might seem unreasonable to permit cigars to be sold on Sunday, and to prohibit the sale of tea, coffee, and other articles, yet the Legislature has deemed it wise to make this classification. Inasmuch as the classification extends the same privileges to everybody, and there is no discrimination, and no burden imposed on any person of a class which is not imposed upon all of the same class, this court cannot revise the judgment of the Legislature as to the wisdom of such classification. * * *'

Appellant cites Broadbent v. Gibson, 105 Utah 53, 140 P.2d 939, and commends it to our consideration. As we read the Broadbent case, it specifically approves a statute such as ours, where there is a general prohibition of all sales on a designated day, with certain articles specifically excepted; but holds unconstitutional a statute in which certain types of stores are permitted to remain open and to sell the same articles that others are prohibited from selling. For example, under the Utah statute, a grocery store handling tobacco and candy could not open on Sunday for the sale of those articles, but must remain closed; a tobacco store could sell tobacco only, and a confectionery store could sell confections only; whereas a bowling alley, a hotel, or a pharmacy might sell both. The discrimination in such legislation is obvious. Under the Washington statute, on the other hand, large department and grocery stores might open for the sale of tobacco and candies, if they so desired; although for economic and perhaps other reasons they do not avail themselves of that privilege, there is, nevertheless, no discrimination against them.

We are content to adhere to our former holdings that Rem.Rev.Stat.§ 2494, standing alone, is not unconstitutional.

Appellant raises two other issues, which have not heretofore been passed upon by this court, when he urges that § 2494, when read in conjunction with § 2496, is unconstitutional as a violation of religious freedom and as being discriminatory on the basis of religious beliefs. We find no violation of Art I, § 11, as amended, of our state constitution,...