State v. Shop and Save Food Markets, Inc.

Decision Date17 April 1980
Docket NumberNo. 262-79,262-79
Citation138 Vt. 332,415 A.2d 235
PartiesSTATE of Vermont v. SHOP AND SAVE FOOD MARKETS, INC.
CourtVermont Supreme Court

M. Jerome Diamond, Atty. Gen., Richard A. Unger, Asst. Atty. Gen., Frank F. Berk, Sp. Asst. Atty. Gen., and Robert Olsen, Law Clerk (on the brief), Montpelier, and Dale O. Gray, Caledonia County State's Atty. St. Johnsbury, for plaintiff.

John H. Marshall and John L. Primmer of Downs, Rachlin & Martin, St. Johnsbury, for defendant.

Robert P. McClallen, Rutland, for Vermont Retail Grocers' Ass'n, amicus curiae.

William D. Robinson, Colchester, for Vermont Retail Ass'n, Inc., amicus curiae.

William H. Quinn of Pierson, Affolter & Wadhams, Burlington, for Grand Union Co., amicus curiae.

Before BARNEY, C. J., DALEY and HILL, JJ., SMITH, J. (Ret.), and GIBSON, Superior Judge, Specially Assigned.

BARNEY, Chief Justice.

On a Sunday afternoon in June 1978, the defendant Shop and Save Food Market was open for business and made a retail sale of canned food, amounting to $1.15. This resulted in the July 5, 1978, filing of a criminal complaint alleging a violation of 13 V.S.A. § 3353(2). This statute is a portion of the Common Day of Rest Act, 13 V.S.A. §§ 3351-3356, which regulates Sunday business activity. Violation of the statute is subject to criminal penalties which include a fine of not more than $200 and imprisonment for 30 days, per transaction, for a first offense. 13 V.S.A. § 3356. Because familiarity with the Act is essential to an understanding of the contentions of the parties, it is set out in an appendix to this opinion.

The defendant entered a plea of not guilty and moved to dismiss the charge on constitutional grounds. A hearing was had on the motion, and various facts were agreed to for the purposes of the motion. The court found the motion to dismiss supportable, holding that the exemptions to 13 V.S.A. § 3353 provided for by § 3354(7)(P) and (JJ) violate the equal protection and due process clauses of the United States Constitution. On motion of the prosecution and prior to the entry of judgment, the district court permitted interlocutory appeal to this Court under V.R.A.P. 5(b)(1). The other grounds for dismissal advanced by the defendant that the entire scheme of the Common Day of Rest Act violates the equal protection clause, that it is unconstitutionally vague in violation of the due process clause and that the defendant was entitled to rely on two Vermont district court rulings holding the Act unconstitutional were rejected by the district court. The defendant received permission to cross-appeal from this portion of the ruling.

On appeal, the defendant asserts each of those contentions. The Act is supported by a presumption of constitutionality. Re Montpelier & Barre Railroad, 135 Vt. 102, 102, 369 A.2d 1379, 1380 (1977). At the same time, the Act is one which converts activities which are ordinarily fully legal into crimes if engaged in on certain days. Whenever otherwise legal activity is made criminal, this Court is obliged to look carefully to determine that no basic constitutional concern has been transgressed and that no constitutional limitation on sovereignty has been overstepped. State v. Carpenter, 138 Vt. ---, 412 A.2d 285 (1980).

In State v. Giant of St. Albans, Inc., 128 Vt. 539, 268 A.2d 739 (1970), we considered a constitutionally based challenge to 13 V.S.A. § 3301, the statute which preceded the Act at issue here. The test which that statute survived is the one we apply today:

(T)he classification must rest on grounds somehow relevant to the statutory purpose. "Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, supra, 366 U.S. 420, 425-6, 81 S.Ct. 1101, 6 L.Ed.2d 393.

Id. at 546, 268 A.2d at 743.

Our obligation to examine the statutory classification for rationality is no mere formality. Not every classification in legislation intended to accomplish economic regulation will survive such scrutiny. Pabst v. Commissioner of Taxes, 136 Vt. 126, 131-34, 388 A.2d 1181, 1184-85 (1978). But see New Orleans v. Dukes, 427 U.S. 297, 306, 96 S.Ct. 2513, 2518, 49 L.Ed.2d 511 (1976) (per curiam) (overruling Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957)). It is also essential to understand that the mere fact of classification by a legislature does not establish, by itself, that the enactment is rationally related to a permissible state purpose. Pabst v. Commissioner of Taxes, supra; State v. Cadigan, 73 Vt. 245, 252-53, 50 A. 1079, 1081-82 (1901); Vt.Const. ch. I, art. 7.

As already noted, the district court, in holding the Act violative of equal protection, relied on the classification established by the combined impact of two exemptions: the exemption provided for by § 3354(7)(P) and the one provided for by subsection (7)(JJ).

Pursuant to (7)(P) the operation of any store wherein "no more than seven persons . . . are employed on the premises at any one time in the usual and regular week-day conduct of the business" is exempted from the prohibition against doing Sunday business. Pursuant to (7)(JJ) the operation of all food stores, except food stores required to comply with the Unit Pricing Act, is exempted from the prohibition. The Sunday operation of food stores required to comply with the Unit Pricing Act, 6 V.S.A. §§ 681-687, since those stores are excepted from the exemption provision, is prohibited. All food stores are required to comply with the Unit Pricing Act except stores which had gross revenues in the preceding year of less than $500,000, and stores which are owned and operated by one owner and members of his immediate family, unless such stores are part of a chain which had company-wide revenue of $1,000,000 or more during the preceding year. 6 V.S.A. § 686. (See appendix).

Looking more generally at the effect of these exemptions only on stores of the same nature as defendant food stores the scope of these classifications becomes apparent. We note that the parties have stipulated that 90% of all food stores are permitted to open under the statute. "Small" food stores are exempted from the Sunday closing requirement under (7)(P). Although the record does not describe the size relationship, (7)(JJ) also exempts food store which are "small" in the sense that they do less than $500,000 worth of business per year, unless they are part of a chain of stores grossing $1,000,000 or more. Yet, so long as they are not members of a chain, family owned food stores of an unlimited size in terms of dollar volume are exempted. Presumably, practical limitations on the size and industriousness of one family place some finite, if undefined, limitation on the size of such businesses.

The relation between these classifications and the expressed purpose of the Act to "establish a common day of rest by means of the general cessation of work" is one of unjustified overinclusiveness. Some exceptions to the general prohibition are necessary both in order to insure that the prohibition does not work a hardship on the public and to foster the "social occasions and recreation" which the Act seeks to advance by virtue of the "atmosphere of repose and tranquility" for which it aims. We do not take issue with the initial policy determination that it is appropriate to allow some food stores to open to serve these purposes. Nor would we find it irrational to make that distinction based on the size of the store in question. Nothing has been advanced to us nor can we conceive of any rational basis that demonstrates how the expressed ends of the Act are advanced in the slightest by a classification which permits family owned stores of almost any size to remain open. Indeed the classification undermines, in part, the "atmosphere of repose and tranquility in which . . . families, friends and relatives can gather together for social occasions and recreation." We are, therefore, required to conclude that the classification is not rationally related to the express purpose of the Act.

However, in judging the rationality of exemptions (7)(P) and (JJ) we are not limited to the Act's express purpose, but look to any legitimate public policy objective which can be asserted in its defense. State v. Carpenter, supra; Andrews v. Lathrop, 132 Vt. 256, 258-59, 315 A.2d 860, 862 (1974); State v. Auclair, 110 Vt. 147, 160, 4 A.2d 107, 113 (1939). In arguing in support of the statute the State contends that the true, if unexpressed, purpose of the statute is economic regulation. The State contends that the Act distinguishes on the basis of size to promote small business. Presumably, that would be a permissible state objective. As we noted above, this is not the objective promoted by this classification. The distinctions among food stores created by exemptions (7)(P) and (JJ) do not rest on size. They do exclude some large stores from Sunday operation, but only those which are not family operated. Since the classification is not rationally related to the end of promoting small business, that end cannot justify it.

We are left to consider what other ends are promoted by the classification. It is apparent that in part at least the classification does promote the family ownership of food stores. But economic discrimination based solely on consanguity is impermissible. Goodman v. Kennedy, 459 Pa. 313, 327, 329 A.2d 224, 231 (1974). Similarly, the...

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