State v. Lindsey
| Decision Date | 11 March 1969 |
| Docket Number | No. 53525,53525 |
| Parties | STATE of Iowa, Appellant, v. Ed LINDSEY, Appellee. |
| Court | Iowa Supreme Court |
Richard C. Turner, Atty., Gen., David A. Elderkin, Asst. Atty. Gen., and Jack F. Broderick, Asst. Scott County Atty., for appellant.
Frank D. Tucker, Jr., Bettendorf, for appellee.
The sole issue presented by this appeal is whether a single sale of a motor vehicle on Sunday constitutes a violation of the provisions of section 322.3(9) of the 1966 Code of Iowa.
Pursuant to a county attorney's information filed on May 22, 1968, in the Municipal Court of the City of Davenport, Iowa, charging the defendant Ed Lindsey, a licensed motor vehicle dealer, with violating the provisions of section 322.3(9) of the Code by selling a motor vehicle on Sunday, May 12, 1968, in Bettendorf, Iowa, trial was had on October 22, 1968. In a written opinion the trial court found defendant not guilty 'for the reason that the State's testimony shows only a single sale on Sunday, May 12, 1968, and that such single sale does not constitute 'engaging in business', * * *' and dismissed the charge against him. The Commissioner of Public Safety, charged with the administration of chapter 322, being vitally interested in the enforcement of the provisions of section 322.3(9), through the Attorney General, requests our consideration of this holding in the appeal. There is no appearance on behalf of defendant and, of course, he may not again be tried on this charge.
I. The prime object of section 322.3 of the 1966 Code regulating the business of buying and selling new or used motor vehicles in this state is for the protection of the public, being a police power measure rather than a revenue measure. Diamond Auto Sales, Inc. v. Erbe, 251 Iowa 1330, 105 N.W.2d 650.
Section 322.3(9) provides:
In Diamond Auto Sales, Inc. v. Erbe, supra, 251 Iowa 1330, 1336, 1337, 105 N.W.2d 650, 652, 653, a constitutional attack on the legislation now designated as section 322.3 of the Code, we upheld the statute and declared the provisions thereof were within the police power of the state. We held the prohibited acts were reasonable and proper because of the danger arising from driving such motor vehicles on Sundays when mechanics are not available, the danger of fraud or mistake in title transfers because they and liens thereon cannot be checked on that day, and because liability insurance may not be readily available on Sunday. As to subsection 9, we pointed out that this business is highly competitive in nature and that, because of 'unreasonable and competitive lust' of some, all dealers are forced to keep open long hours on week days and on Sunday, and that some states have found this inimical to the public welfare. We further pointed out that police power now is generally held to include the promotion of prosperity and the general welfare as well as the promotion of the public health, safety or morals. We adhere to that decision and hold this legislation was a valid exercise of the police power of Iowa and not a mere licensing or revenue measure.
II. As a general rule, the performance by a person of a single or isolated act relating to a licensed activity will not be considered as engaging in or carrying on such business or profession within the purview of the law requiring a license. 93 A.L.R.2d Anno: License, section 3, pages 94, 95. Also see Novak v. Redwine, 1954, 89 Ga.App. 755, 81 S.E.2d 222, 225; York v. Dotson, Tex.Civ.App.1954, 271 S.W.2d 347, 349. The trial court, relying upon this rule, was convinced the State must show more than one or an occasional Sunday sale before a violation of section 322.3(9) could be upheld. It stated, although the legislature 'probably intended to ban a single Sunday sale', the language used would not permit a prosecution for a single sale. We cannot agree.
Where the proper construction of a statute indicates that it applies to a single act, the usual and general meaning of the words 'engaged in the business' should not prevail. State v. Blackwell, 196 S.C. 313, 13 S.E.2d 433, 434. This is especially true where the single act may endanger the public and be inimical to the public welfare.
Defendant was engaged in the business of selling motor vehicles. Subsection 9 prohibits him from doing so on Sunday. He made a sale on Sunday and thus represented to the customer that he was engaged in his business on Sunday. This is sufficient.
III. There is a well recognized exception to the single or isolated transaction rule relating to licensed activities, i.e., where the primary or sole purpose of the legislation involved is to protect the public peace or safety, and where a single or isolated act could jeopardize it. 93 A.L.R.2d, Anno: License, section 5, pages 99, 100. Therefore, determination of the primary purpose of the legislation is of substantial importance where single or isolated transactions are involved.
Although this appears to be a case of first impression in Iowa, other states have considered the matter and generally hold, where the transaction is covered by a regulatory or police power measure, a single act constitutes a violation of the law, and the fact that the act involves a license fee does not prevent application of the exception to the rule. State v. Cotner, 87 Kan. 864, 127 P. 1, 42 L.R.A.N.S., 768; Mueller v. Burchfield, Mo.App., 218 S.W.2d 180; 359 Mo. 876, 224 S.W.2d 87, 13 A.L.R.2d 153; State v. Blackwell, supra, 196 S.C. 313, 13 S.E.2d 433; Cantrell v. Perkins, 177 Tenn. 47, 146 S.W.2d 134. Although these cases are not exactly in point, the issue we face here seems to have been resolved by construing the statute to reach the legislative intent and purpose of the provision. We must do likewise.
In State v. Blackwell, supra, appellant had been convicted of practicing embalming without first obtaining a license. His contention on appeal was that a single act did not constitute the practice of that profession within the meaning of the statute. In disposing of that contention the South Carolina Supreme Court considered the...
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