State v. Sundaco, Inc.
| Decision Date | 29 August 1969 |
| Docket Number | No. 4281,4281 |
| Citation | 445 S.W.2d 606 |
| Parties | The STATE of Texas et al., Appellants, v. SUNDACO, INC. et al., Appellees. . Eastland |
| Court | Texas Court of Appeals |
Richard Price, Dist. Atty., Don Butler, City Atty., Ben Niedecken, Jr., Asst. City Atty., Abilene, for appellants.
Berman & Fichtner, W. W. Mitchell, II, Dallas, for appellees.
The State of Texas and the City of Abilene brought this suit against Sundaco, Inc., M. N. Landau Stores, Inc., d/b/a Clarks and Joseph Piper to enjoin the defendants from selling and offering for sale certain merchandise on consecutive days of Saturday and Sunday in violation of Article 286a. Both plaintiffs and defendants filed motions for summary judgment. The District Court found that there was no genuine issue of any material fact in the case and further found that Article 286a Vernon's Ann.T.P.C. was so vague and indefinite that it was unconstitutional, and granted defendants' motion for summary judgment. The State of Texas and the City of Abilene have appealed.
The applicable portions of the statute in question are as follows:
'Art. 286a. Sale of goods on both the two consecutive days of Saturday and Sunday.
Prohibition of sales; items; misdemeanor
Section 1. Any person, on both the two (2) consecutive days of Saturday and Sunday, who sells or offers for sale or shall compel, force or oblige his employees to sell any clothing; clothing accessories; wearing apparel; footwear; headwear; home, business, office or outdoor furniture; kitchenware; kitchen utensils; china; home appliances; stoves; refrigerators; air conditioners; electric fans; radios; television sets; washing machines; driers; cameras; hardware; tools, excluding non-power driven hand tools; jewelry; precious or semi-precious stones; silverware; watches; clocks; luggage; motor vehicles; musical instruments; recordings; toys, excluding items customarily sold as novelties and souvenirs; mattresses; bed coverings; household linens; floor coverings; lamps; draperies; blinds; curtains; mirrors; lawn mowers or cloth piece goods shall be guilty of a misdemeanor. Each separate sale shall constitute a separate offense.
Sales for charitable and funderal or burial purposes; real property sales
Sec. 2. Nothing herein shall apply to any sale or sales for charitable purposes or to items used for funeral or burial purposes or to items sold as a part of or in conjunction with the sale of real property.
First offense; subsequent convictions; penalties
Sec. 3. For the first offense under this Act, the punishment shall be by fine of not more than One Hundred Dollars ($100.00). If it is shown upon the trial of a case involving a violation of this Act that defendant has been once before convicted of the same offense, he shall on his second conviction and on all subsequent convictions be punished by imprisonment in jail not exceeding six (6) months or by a fine of not more than Five Hundred Dollars ($500.00), or both.
Purpose; public nuisances; injunction; application and proceedings
Sec. 4. The purpose of this Act being to promote the health, recreation and welfare of the people of this state, the operation of any business whether by any individual partnership or corporation contrary to the provisions of this Act is declared to be a public nuisance and any person may apply to any court of competent jurisdiction for and may obtain an injunction restraining such violation of this Act. Such proceedings shall be guided by the rules of other injunction proceedings.
Emergency purchases; certification
Sec. 4a. Repealed. Acts 1967, 60th Leg., p. 79, ch. 39, § 1, eff . Aug. 28, 1967.
Occasional sales
Sec. 5. Occasional sales of any item named herein by a person not engaged in the business of selling such items shall be exempt from this Act.
Legislative intent
Sec. 5a. It is the intent of the Legislature that Articles 286 and 287 of the Penal Code of Texas are not to be considered as repealed by this Act; provided, however, that the provisions of said Articles shall not apply to sales of items listed in Section 1 of this Act which are forbidden to be sold on the day or days named in this Act. Acts, 1961, 57th Leg., 1st C.S., p. 38, ch. 15, eff. Nov. 7, 1961.'
Article 286, V.A.T.P.C. is a general penal statute prohibiting and penalizing the selling of goods on Sunday. Article 287, V.A.T.P.C. exempts certain types of transactions, markets and dealers from a compliance with Article 286, supra, and permits the sale of certain articles on Sunday.
Legislative acts are entitled to great respect and it is the duty of the courts to uphold them, if possible. 16 C.J.S. Constitutional Law § 98, p. 357. It is a well settled principle of law that a State statute is presumed to be constitutional and will not be held otherwise unless it clearly and undoubtedly contravenes some constitutional provision. 12 Tex.Jur.2d, pgs. 385, 386, 429.
It is also well settled that a Legislative act, particularly a criminal or penal statute, should be reasonably clear and plain, and where the language of such an act is essentially so indefinite, uncertain and vague that it cannot be understood it is inoperative, unenforceable and void. 53 Tex.Jur.2d, pgs. 41--43, V.A.P.C. Art. 6. A statute which forbids or requires performance of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates 'due process of law.' Lone Star Gas Company v. Kelly, 140 Tex. 15, 165 S.W.2d 446 (Tex.Com.App.); Connally v. General Construction Company, 269 U.S. 385, 46 S.Ct. 126, 127, 70 L.Ed. 322; Ex parte Chernosky, 217 S .W.2d 673 (Tex.Cr.App., 1949).
In appellants' first point it is urged that the court erred in holding that Article 286a, V.A.T.P.C. is unconstitutional by reason of being vague and indefinite and in granting appellees' motion for summary judgment.
The essence of appellees' contention in support of the judgment, holding that the statute in question is so vague and indefinite as to be void, is that there are no standards, guide lines or criteria therein by which an individual of ordinary intelligence can determine without doubt or indecision what conduct is allowed and what is prohibited. Appellees assert that the statute does not prohibit all sales on consecutive Saturdays and Sundays; that under the statute it is legal to make sales on consecutive Saturdays and Sundays, but that the sale of some specified items are prohibited on such consecutive days. Appellees however contend that the unconstitutional vagueness and indefiniteness of the statute exists in that it cannot be determined, without doubt and indecision, just what the restricted items are. We cannot agree with appellees' contention.
Somewhat similar statutes in other states with respect to the kind of merchandise that cannot be sold on Sunday have...
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