State v. Kidd

• Decision Date: 30 April 1958
• Docket Number: 35317 and 35318,Nos. 35215,35233,35216,s. 35215
• Citation: 150 N.E.2d 413,167 Ohio St. 521
• Parties: , 5 O.O.2d 202 The STATE of Ohio, Appellee, v. KIDD, Appellant, The STATE of Ohio, Appellee, v. MILLS, Appellant. The STATE of Ohio, Appellee, v. LEFF, Appellant. The STATE of Ohio, Appellee, v. ULLNER, Appellant. (Two cases.)
• Court: Ohio Supreme Court

Page 521

167 Ohio St. 521

150 N.E.2d 413, 5 O.O.2d 202

The STATE of Ohio, Appellee, v. KIDD, Appellant, The STATE of Ohio, Appellee, v. MILLS, Appellant.

The STATE of Ohio, Appellee, v. LEFF, Appellant.

The STATE of Ohio, Appellee, v. ULLNER, Appellant. (Two cases.)

Nos. 35215, 35216, 35233, 35317 and 35318.

Supreme Court of Ohio.

April 30, 1958.

Syllabus by the Court

1. Section 3773.24, Revised Code, commonly called the Sunday closing law, is a valid, constitutional and enforceable enactment and is not vulnerable to the attack that it is a measure for the enforcement or promulgation of religious observances.

2. 'Work of necessity or charity' is exempted from the operation of Section 3773.24, Revised Code. The word, 'necessity,' is an elastic one, and what constitutes work of necessity is often a question of fact dependent on the circumstances surrounding the particular case.

3. The lawmaking branch of a state government in the exercise of its police power has the constitutional authority to make classifications and selections of those activities which it deems should or should not be prohibited on Sundays, and, so long as those classifications are not arbitrary, capricious or unreasonable and do not discriminate among the same classes or kinds of pursuits, they are valid.

In the several causes now here for review the defendants, storekeepers and one clerk, were charged with and convicted in various Municipal Courts of violating Section 3773.24, Revised Code, commonly known as the Sunday closing law or blue law, and all the convictions were affirmed on appeal.

Causes Nos. 35215 and 35216 originated in the Cincinnati Municipal Court. Defendant Kidd was a co-owner and operator of a self-serve food market in the city of Cincinnati, and defendant Mills was clerk at the check-out counter in such store. Purchases consisting of groceries, soap, an electric iron and insect spray were made in the store on a Sunday afternoon by police officers, who then advised Kidd and Mills that they were being cited to court--Kidd for opening and conducting a business on Sunday and Mills for engaging in common labor on that day. Affidavits were subsequently filed against the two. The cases were tried concurrently, and some of the evidence introduced is to the effect that the store was located in a neighborhood inhabited and frequented by those who lacked facilities for storing and preserving food.

Cause No. 35233 originated in the Cleveland Municipal Court. Leff, the defendant, was president of the Three Bears Super Stores, Inc., an Ohio corporation engaged in a number of stores in selling a variety of products. The store here involved was opened on a Sunday, sales of flashlight bulbs were made and prosecution followed.

Causes Nos. 35317 and 35318 had their inception in the Hamilton Municipal Court. One of the affidavits charges the defendant, Ullner, with opening or causing to be opened a building for the transaction of business on Sunday, and the other charges him with requiring a person (his employee) to engage in common labor on Sunday.

Causes Nos. 35215 and 35216 were appealed on questions of law from the Municipal Court to the Court of Appeals for Hamilton County. Cause No. 35233 went from the Municipal Court to the Court of Appeals for Cuyahoga County. Causes Nos. 35317 and 35318 went from the Municipal Court to the Court of Common Pleas of Butler County and from there to the Court of Appeals for that county.

In all causes, the Courts of Appeals affirmed the judgments of the lower courts.

All the causes are now here for disposition on appeals as of right and on the allowance of motions to require the respective Courts of Appeals to certify the records.

James W. Farrell, Jr., city solicitor, Robert J. Paul and Lyle W. Castle, Cincinnati, for appellee in cases Nos. 35215 and 35216.

Allen Brown, Cincinnati, for appellants in cases Nos. 35215 and 35216.

Ralph S. Locher, Director of Law, Bernard J. Conway and Edward V. Cain, Cleveland, for appellee in case No. 35233.

Wyner & Wyner, Cleveland, for appellant in case No. 35233.

Clem M. Imfeld, Jr., acting director of law, John W. Thomas, city solicitor, and Warren G. Bisdorf, Hamilton, for appellee in cases Nos. 35317 and 35318.

Robert P. Goldman, Reuven J. Katz, Paxton & Seasongood, Cincinnati, and Edward Pierce, Fitton, Pierce & Black, Hamilton, for appellant in cases Nos. 35317 and 35318.

ZIMMERMAN, Judge.

All the defendants challenge the constitutionality and validity of Section 3773.24, Revised Code, enacted by the General Assembly in the exercise of its police power. That section, as it is pertinent here, reads as follows:

'No person who is over fourteen years of age shall engage in common labor or open or cause to be opened, a building or place for transaction of business, or require a person in his employ or under his control to engage in common labor on Sunday. * * *

'This section does not apply to work of necessity or charity, and does not extend to persons who conscientiously observe the the seventh day of the week as the Sabbath, and abstain thereon from doing things prohibited on Sunday.'

It is axiomatic that courts may not inquire into the policy which motivated the enactment of legislation, and as stated in the first paragraph of the syllabus in the case of State ex rel. Dickmen v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59, 60, 'an enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.'

Sunday closing laws have generally been upheld as constitutional and valid against a variety of attacks, such as, that they constitute class legislation, that they are too uncertain, that they violate the constitutional rights of citizens as to equal privileges and immunities, that they violate the right of life, liberty or the pursuit of happiness, and that they violate the constitutional right of freedom of religion. 50 American Jurisprudence, 803, Section 5; and 83 C.J.S. Sunday § 3, p. 800.

Many years ago in a case involving a predecessor statute to present Section 3773.23, Revised Code, Judge Minshall, writing the opinion in the case of State v. Powell, 58 Ohio St. 324, 340, 50 N.E. 900, 901, 41 L.R.A. 854, made the following observations:

'The policy of Sunday laws is based upon the observed fact, derived from long experience and the custom of all nations, that periods of rest from ordinary pursuits are requisite to the well-being, morally and physically, of a people. * * * This is the foundation and policy of all statutes regulating the observance of a day of rest; and whether the day selected is one consonant to the religious views of a portion of the people or not does not affect the validity of the regulation, where no religious observance is enjoined.'

Section 3773.24, Revised Code, in no way interferes with the freedom of religious worship or the free exercise of religious beliefs, nor was it designed to. As was said by Judge Thurman in the early case of Bloom v. Richards, 2 Ohio St. 387, 392:

'Wisdom requires that men should refrain from labor at least one day in seven, and the advantages of having the day of rest fixed, and so fixed as to happen at regularly recurring intervals, are too obvious to be overlooked. It was within the constitutional competency of the General Assembly to require this cessation of labor, and to name the day of rest. It did so by the act referred to, and, in accordance with the feelings of a majority of the people, the Christian Sabbath was very properly selected. But, regarded merely as an exertion of legislative authority, the act would have had neither more nor less validity had any other day been adopted.'

Compare Stanfeal v. State, 78 Ohio St. 24, 84 N.E. 419, 14 Ann.Cas. 138. And see 38 Ohio Jurisprudence, 349, Section 10.

It is to be noted that excepted from the operation of the statute in issue is 'work of necessity or charity.' Obviously, no fixed and unvarying definition of 'necessity' as used in the statute can be given. That term is an elastic one. Certainly, it does not mean that which is wholly indispensable, but it does mean something more than that which is merely needful, desirable or convenient. For example, it is hardly a necessity to open a place of business of Sunday to make available to a purchaser an article which in the exercise of reasonable foresight he could have bought on a preceding day. To escape the inhibitions of the statute, labor performed or work done must come within the statutory exceptions, and whether it does is ordinarily a question of fact largely dependent on the circumstances surrounding the particular case. In the cases before us, all the lower courts determined that the element of necessity was lacking and we find no sufficient reason for overturning those determinations.

Another argument made is that Section 3773.24, Revised Code, is unconstitutional because it is a law for the promulgation of religious beliefs. True, that section by its terms is not applicable to 'persons who conscientiously observe the seventh day of the week as the Sabbath, and abstain thereon from doing things prohibited on Sunday.' However, the evidence in these cases under consideration does not disclose that the business places involved closed on any day of the week in the observance of a religious belief or for any other reason, and, therefore, the defendants are hardly in a position to attack the statute on the constitutional grounds asserted. Humphrey Chevrolet, Inc., v. City of Evanston, 7 Ill.2d 402, 131 N.E.2d 70; State v. Grabinski, 33 Wash.2d 603, 206 P.2d 1022. But to face the problem squarely, we entertain the view, in line with former decisions of this court already referred to and with those of other courts which have interpreted statutes similar to Section 3773.24, Revised Code, that such se...