State v. Hurliman

• Decision Date: 19 June 1956
• Citation: 143 Conn. 502,123 A.2d 767
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Charles HURLIMAN. Supreme Court of Errors of Connecticut

Page 767

123 A.2d 767

143 Conn. 502

STATE of Connecticut v. Charles HURLIMAN.

Supreme Court of Errors of Connecticut.

June 19, 1956.

George W. Ganim, Bridgeport, with whom, on the brief, was Raymond W. Ganim, Bridgeport, for appellant (defendant).

George R. Tiernan, Prosecuting Atty., New Haven, for appellee (state).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

INGLIS, Chief Justice.

The defendant was charged with and convicted of the crime of 'selling or exposing for sale certain goods, wares or merchandise' on Sunday in violation of § 2492c of the 1953 Cumulative Supplement, as amended, Cum.Sup.1955, § 3302d. He has appealed, assigning as error the overruling of his claim that the statute is unconstitutional.

There is no dispute as to the facts. The defendant was the proprietor of a delicatessen store in Milford. On Sunday, March 13, 1955, he sold one-half pound of liverwurst to a customer. The sale was not one of necessity or mercy, nor was it within any of the classes of sales excepted from the prohibition of the statute. The defendant was not excepted from the operation of the statute because of any religious beliefs. General Statutes, § 8609.

Section 2492c is entitled 'Work and recreation on Sunday.' It is long. So far as it is applicable to the present case, it reads: 'Any person who shall do, or require an employee to do, any secular business or labor, except works of necessity or mercy, or, unless required by necessity or mercy, keep open any shop, warehouse or manufacturing or mechanical establishment, or sell or expose for sale any goods, wares or merchandise, or, except as hereinafter provided, engage in any sport, between the hours of twelve o'clock Saturday night and twelve o'clock Sunday night next following, shall be fined * * *. The provisions of this section shall not prohibit the making of emergency repairs to motor vehicles, * * * including the furnishing of any labor or the sale of gasoline necessary to permit the same to proceed under their own power * * *. The foregoing provisions of this section shall not apply to any amateur ball game or other outdoor game or sport by or between amateurs on Sunday; provided no admission fee shall be charged and the same shall be so conducted as not to interfere with public worship or disturb the reasonable comfort, quiet and peace of any person, * * * The sale of milk, bakery products, fruit, ice, ice cream, confectionery, non-alcoholic beverages, tobacco in any form, smokers' supplies, newspapers and other periodicals, drugs or supplies and repair parts for motor vehicles * * * by retail dealers whose places of business are open for the sale thereof on secular days, shall not be a violation of the provisions of this section.'

The defendant's principal contention is that the statute is discriminatory because, although it prohibits the sale of goods, wares and merchandise generally on Sunday, it permits the sale of a considerable number of specified articles. For that reason, he says, it is violative of the equal protection of the laws clause contained in article first, § 1, of the Connecticut Constitution and in § 1 of the Fourteenth Amendment to the Federal Constitution.

A statute does not necessarily violate these constitutional provisions merely because it grants certain privileges or immunities to one class of persons and denies them to another class. 'The discriminations which are open to objection are those where persons engaged in the same business are subjected to different restrictions, or are held entitled to different privileges under the same conditions. It is only then that the discrimination can be said to impair that equal right which all can claim in the enforcement of the laws.' Soon Hing v. Crowley, 113 U.S. 703, 709, 5 S.Ct. 730, 733, 28 L.Ed. 1145. We have stated tha law on this subject as follows: 'Legislation, even though it is within the police power, may be violative of due process if it is discriminatory in that it deals differently with different classes of persons without the existence of some natural and substantial difference, germane to the subject and purposes of the legislation, between those within the class included and those whom it leaves untouched. State v. Cullum, 110 Conn. 291, 295, 147 A. 804; Lyman v. Adorno, 133 Conn. 511, 521, 52 A.2d 702.' Schwartz v. Kelly, 140 Conn. 176, 181, 99 A.2d 89, 92. 'The constitutional guaranty * * * does not prevent classification, but does require that classification shall be reasonable, not arbitrary, and that it shall rest upon distinctions having a fair and substantial relation to the object sought to be accomplished by the legislation.' Atchison, T. & S. F. Ry. Co. v. Vosburg, 238 U.S. 56, 59, 35 S.Ct. 675, 676, 59 L.Ed. 1199.

It is fundamental that no one will be heard to question the constitutionality of a statute unless he is adversely affected by it. State v. Donahue, 141 Conn. 656, 665, 109 A.2d 364; McAdams v. Barbieri, 143 Conn. 405, 411, 123 A.2d 182. The defendant as a retailer of food can be adversely affected only if other retailers of food, his competitors, are granted privileges which he does not have. Accordingly, the question in the present case narrows down to this: Does the statute, by denying to retailers of most kinds of food the right to sell on Sunday and at the same time permitting the sale of some kinds of food, treat the one class of retailers differently from the other when there is no substantial difference between them germane to the subject matter and purpose of the legislation?

There is no disputing the fact that the statute prohibits in general terms the sale and offering for sale of foodstuffs except when the sale is an act of mercy or necessity. On the other hand, by way of exception, it permits the sale of milk, bakery products, fruit, ice cream, confectionery and nonalcoholic beverages. Thus, those who retail meats, groceries and delicatessen products are treated differently from those who retail the various foods specified in the exception.

The purpose of the statute, as its title and history indicate, is to secure a fitting observance of Sunday both as a day for religious worship and as a day for rest and recreation. State v. Miller, 68 Conn. 373, 376, 36 A. 795. Over the years the trend has been toward a...