State v. Spartan's Industries, Inc., B--1255

• Decision Date: 05 November 1969
• Docket Number: No. B--1255,B--1255
• Citation: 447 S.W.2d 407
• Parties: The STATE of Texas, Appellant, v. SPARTAN'S INDUSTRIES, INC. et al., Appellees.
• Court: Texas Supreme Court

Page 407

447 S.W.2d 407

The STATE of Texas, Appellant, v. SPARTAN'S INDUSTRIES, INC. et al., Appellees.

No. B--1255.

Supreme Court of Texas.

Nov. 5, 1969.

James E. Barlow, Dist. Atty., San Antonio, Soloman Casseb, Jr., Bruce Robertson, John Gilliland, San Antonio Crawford Martin, Atty. Gen., Monroe Clayton, Asst. Atty. Gen., Austin, for appellant.

Bloch & Walton, William H. Bloch, Corpus Christi, Lang, Cross, Ladon, Oppenheimer & Rosenberg, James D. Stewart, San Antonio, Oscar Spitz, Corpus Christi, Kampmann, Kampmann, Church & Burns, George A. Kampmann, San Antonio, Berman & Fichtner, Jay S. Fichtner, Dallas, for appellees.

REAVLEY, Justice.

The question in this case is the constitutionality of the Sunday (or Saturday) closing law, Article 286a. Vernon's Ann.Texas Penal Code. We uphold the statute.

The suit was brought by the District Attorney of Bexar County, acting in the name of the State, to enjoin four discount stores operating in Bexar County, Spartan Industries, Inc., Barker's of San Antonio, Inc., Shoppers World of San Antonio, Inc. and Globe Stores, Inc., together with certain employees, from selling certain items of merchandise on the two consecutive days of Saturday and Sunday in violation of Article 286a. The defendants attacked the constitutionality of the statute in extensive pleadings, and the trial court agreed with their arguments when the case came on for trial. No statement of facts is before us, and the briefs state that no evidence was heard by the trial court.

JURISDICTION

The State has taken a direct appeal to this court under the terms of Article 1738a, Vernon's Ann.Texas Civil Statutes. A question of jurisdiction must be faced. it arises because the trial court judgment decrees 'that each of the said Pleas in Abatement be and the same are hereby sustained, and that this cause be and the same is hereby dismissed * * *' This disposition of the case, if we were not to look behind the recitation, would not fit the requirement of Article 1738a, which provides that direct appeals to this court may be taken from orders of trial courts 'granting or denying an interlocutory or permanent injunction on the ground of the constitutionality or unconstitutionality of any statute * * *.' Upon reading the full transcript we find that defendants' only ground for their 'plea in abatement' was the unconstitutionality of the statute. The trial court gives the unconstitutionality of the statute as the reason for its judgment and decrees 'that Plaintiff, the State of Texas, take nothing by its suit for injunctive relief against the Defendants * * *' We treat the so-called plea in abatement as a plea in bar and, since the trial court's take-nothing judgment could be the only intended judgment, the language as to the dismissal is disregarded as meaningless. When the judgment is thus interpreted, it denied the permanent injunction sought by the State on the ground of the unconstitutionality of Article 286a, and this court has jurisdiction of the direct appeal.

This holding may be compared to the one in Touchy v. Houston Legal Foundation, 432 S.W.2d 690 (Tex.Sup.1968). In Touchy, the defendants filed a plea in abatement based on lack of standing of the plaintiffs to maintain the suit, and also filed a motion for summary judgment that plaintiff take nothing. The trial court heard the two pleas at the same time and rendered judgment reciting that the plea in abatement was sustained and the cause was dismissed, and further reciting that the motion for summary judgment was granted. Since the asserted ground of the plea in Touchy was a proper ground of abatement, we dealt with that ground and with the action of the trial court in dismissing the case. If the trial court could not have reached the merits of the case, its recitation of a ruling on the summary judgment motion had to be regarded as meaningless. In the case at hand, there was no ground for abatement and we regard the language as to abatement and dismissal as meaningless.

The corporate defendants first argue that Section 1 of Article 286a prohibits consecutive day sales by 'any person,' and that this must be construed to apply only to natural persons and not to corporations. Since this question is entirely separate from any constitutional issue, we decline to consider it on the ground of the limitation of our jurisdiction in a direct appeal. Halbouty v. Railroad Commission of Texas, 163 Tex. 417, 357 S.W.2d 364 (Tex.Sup.1962).

Article 286a was enacted by the Legislature in 1961. Section 4a of the statute as originally enacted permitted the sale of otherwise prohibited commodities when the purchaser certified to the seller that his need of the item was an emergency. The construction of this section brought the statute to this court in 1964 in State of Shoppers World, Inc., Tex., 380 S.W.2d 107. The question there was whether the seller could rely on the purchaser's certificate, or whether the statute required that there be no sale in the absence of an actual emergency. The court upheld Sec. 4a by construing it not to require an objective determination by the seller. The State argues in the case before us that this court has already determined the constitutionality of Article 286a in its entirety, but the opinion makes it quite plain that the attack on Sec. 4a was the only constitutional issue considered. The defendant there had obtained certificates from its purchasers and, as the law was construed by this court, there had been no violation. The court of civil appeals had properly ruled that the State was not entitled to an injunction, and there was no cause for this court to rule further.

The Legislature removed Sec. 4a from this Article in 1967.

Citing Article I, Sections 15, 17 and 19 of the Texas Constitution, and Article XIV of the United States Constitution, appellees contend that Article 286a discriminates against them and denies them equal protection or immunity, that it denies them due process of law by virtue of vagueness or uncertainty of the prohibited act, that it takes or damages their business or property without compensation, that it authorizes the injunction of a nuisance where there is no nuisance in fact and thus denies the right to a jury trial on that issue, and that it denies them due process by prohibiting or unduly oppressing a lawful business in a manner which has no reasonable relation to the public health and welfare. Finally, they contend that the caption of the original Act of the Legislature failed to comply with Article III, Section 35 of the Texas Constitution.

The statute has been upheld against similar attack in two of the courts of civil appeals in three opinions: Spartan Industries, Inc. v. State, 379 S.W.2d 931 (Tex.Civ.App.1964, no writ); Hill v. Gibson Discount Center, 437 S.W.2d 289 (Tex.Civ.App.1968, writ ref. n.r.e.); State v. Sundaco, Inc., 445 S.W.2d 606 (Tex.Civ.App., 1969, writ ref. n.r.e.).

EFFECT AND OBJECTIVES OF THE STATUTE

Before weighing specific constitutional appeals against the precedents, we should understand what the Legislature has done by its enactment or Article 286a. We may as well decide at the outset whether this enactment has a reasonable relation to the public welfare. Has the Legislature arbitrarily interfered with the merchants of Texas, or can it be said that a proper objective is served by this law? Whether the statute is a legitimate exercise of the police power of the state is central to most of the questions now before us.

The full text of Article 286a is set forth in the appendix following this opinion. It specifically provides in Sec. 5a that the older Sunday closing laws are not repealed. Articles 286 and 287, Texas Penal Code, still prohibit sales, or the opening of a place of business, by any merchant and trader (subject to certain exceptions for drug stores, hotels, restaurants, etc.). The penalty for violation of Article 286 is a fine of not less than twenty nor more than fifty dollars.

Article 286a enumerates a long list of articles from clothing to motor vehicles, and gives the business man the choice of trading on either Saturday or Sunday, but provides that if he sells on both days, he may be subjected to injunction or greater penal penalty.

To weight the full effect of Article 286a we must decide whether it prohibits the sale by the same person of one or more of the named articles on Sunday when different articles, but ones named in the statute, were sold on the preceding Saturday. Thus, could a merchant close off his appliance department on Saturday and then operate on Sunday with nothing but his appliance department open? We construe the statute to prohibit this. It says that any person who sells on both days shall be guilty of a misdemeanor. Who sells What? Who sells 'any clothing; clothing accessories; wearing apparel;' etc., meaning that if 'any' named item is sold on one day, it is illegal to sell 'any' named item on the other day. The statute does Not say to the merchant that he may not sell clothing, or sell clothing accessories, or sell wearing apparel on consecutive days. The effect of separating each article between the semicolons and applying the prohibition only to consecutive day sales of a separate article, would be to have the Legislature permit a merchant to sell watches on Saturday and clocks on Sunday, blinds and draperies on Saturday and curtains on Sunday, washing machines and radios on Saturday and driers and television sets on Sunday. This would be a nonsensical plan to ascribe to the Legislature.

To judge the reasonableness of this statute, we have before us only the face of the statute with no evidence, but it appears there that the principal plan is to close mercantile establishments and department stores on Sunday. This is the reason for the broad list of commodities, the injunction process, and the provision in Sec. 5 that the statute applies only to those 'engaged in the business of selling such item(s).' The merchant...