Whitney Stores, Inc. v. Summerford

• Decision Date: 12 February 1968
• Docket Number: Civ. A. No. 67-771.
• Citation: 280 F. Supp. 406
• Parties: WHITNEY STORES, INC., and Robert H. Johnson, Plaintiffs, v. T. Kenneth SUMMERFORD, Solicitor for the Twelfth Judicial Circuit of the State of South Carolina, E. A. McLeod, Sheriff of Florence County, and T. E. Rogers, Jr., Magistrate, Defendants, and Belk's Department Store of Camden, South Carolina, Inc., Collins Department Stores, Inc., and South Carolina Retail Council, Inc., Intervenor-Defendants.
• Court: U.S. District Court — District of South Carolina

280 F. Supp. 406

WHITNEY STORES, INC., and Robert H. Johnson, Plaintiffs, v. T. Kenneth SUMMERFORD, Solicitor for the Twelfth Judicial Circuit of the State of South Carolina, E. A. McLeod, Sheriff of Florence County, and T. E. Rogers, Jr., Magistrate, Defendants, and Belk's Department Store of Camden, South Carolina, Inc., Collins Department Stores, Inc., and South Carolina Retail Council, Inc., Intervenor-Defendants.

Civ. A. No. 67-771.

United States District Court D. South Carolina, Florence Division.

Argued January 23, 1968.

Decided February 12, 1968.

Eugene N. Zeigler, Florence, S. C., for plaintiffs.

Daniel R. McLeod, Atty. Gen., State of South Carolina, and Everett N. Brandon, Asst. Atty. Gen., State of South Carolina, Columbia, S. C., for defendants.

David M. McConnell, Charlotte, N. C., and David W. Robinson, II, Columbia, S. C., for intervenor-defendants.

Before HAYNSWORTH, Circuit Judge, and HEMPHILL and RUSSELL, District Judges.

HEMPHILL, District Judge.

Plaintiffs,¹ insisting that Sections 64-2 through 64-2.5² of the South Carolina Code of Laws, as amended, are unconstitutional, ask a declaratory judgment of such in this court. They further seek judgment that a pattern of discriminatory enforcement exists, and position that the unconstitutional application and enforcement invite and deserve injunctive relief. As to plaintiffs' contentions of the unconstitutionality of the statutes, in themselves, this court does not agree. The district court will examine the facts bearing on discriminatory enforcement.

Complaint initiating this action was filed on October 26, 1967. Plaintiffs pitched on three allegedly separate and distinct causes of actions revolving around the South Carolina closing law³ more commonly referred to as the "Blue Laws."

In their first cause of action plaintiffs seek an injunction pendente lite and permanently. They assert that the defendants have subjected Whitney's employees to arrest and harassment; and that at the same time violations and enforcement have been overlooked against the competitors of the plaintiffs. Such action, plaintiffs claim, violate the equal protection of the laws clause of the Fourteenth Amendment to the Constitution of the United States of America. In the second cause of action, relief is sought on grounds that the Sunday closing laws are unconstitutional because the language is too vague and indefinite; further, that the fines for violations are so severe as to constitute cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments. A third cause of action seeks to enjoin alleged discriminatory enforcement as in violation of Civil Rights statute 1983⁴ of Title 42, U.S.Code, and the Fourteenth Amendment.

Defendants Kenneth Summerford and others entered a general denial, pled the doctrine of abstention and alleged the plaintiff was not properly constituted to do business in this state. On January 12, 1968 Belk's Department Store of Camden, South Carolina, Inc., Collins Department Store, Inc., and South Carolina Retail Council, Inc. were allowed to intervene as defendants. They pled, additionally, that if § 64-2.1 and 64-2.2 are unconstitutional they are separable and not essential to the regulatory scheme prohibiting conduct of business on Sunday.

A temporary restraining order of October 26, 1967 was continued until the entire matter, including permanent injunctive relief, could be heard by a proper tribunal. A three-judge panel was then designated by Chief Judge Clement F. Haynsworth, Jr., of the United States Fourth Circuit Court of Appeals, in accordance with 28 U.S.C.A. § 2284. Arguments were scheduled for Greenville, South Carolina.

We first consider jurisdiction. Plaintiffs assert jurisdiction on grounds that the South Carolina Blue Laws are unconstitutional because of vagueness in classification of goods which can legally be sold on Sunday and vagueness of the statutory terms "souvenirs and novelties."⁵ Plaintiffs also contend that the statutory provisions "works of necessity"⁶ are unconstitutionally vague and indefinite.

The statute requiring decision of a three-judge district court is to be strictly and narrowly construed, Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800, and it is elementary that the statute comes into play only when an injunction is brought to enjoin the enforcement of an unconstitutionally drawn statute. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512. Once a three-judge court panel has determined that no substantial federal question is involved the three-judge panel no longer has jurisdiction. Two Guys from Harrison-Allentown, Inc. v. McGinley, 179 F.Supp. 944 aff'd 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551 (D.C. E.D.Pa.1959).

Soon after the passage of the act in question, a prosecution in another but similar case was commenced. A conviction was secured, and the case was appealed to the Supreme Court of South Carolina, which affirmed, State v. Solomon, 245 S.C. 550, 141 S.E.2d 818, 14 A.L.R.3d 1277, primarily on the basis of McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961); Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961); and Gallagher v. Crown Kosher Super Mkt., 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536 (1961). An appeal to the Supreme Court of the United States was dismissed, Solomon v. South Carolina, 382 U.S. 204, 86 S.Ct. 396, 15 L.Ed.2d 270, for want of a substantial federal question.

The decision of the Supreme Court of South Carolina held the act to be unassailable on state or federal grounds, and specifically held it not to be in violation of the due process or the equal protection clauses of the Fourteenth Amendment. The effect of the Supreme Court's dismissal of the appeal from the Supreme Court of South Carolina, on the ground that there was no substantial federal question, was tantamount to an adjudication upon the merits. Beck v. McLeod, 240 F.Supp. 708 (D.C.S.C.1965), judgment affirmed, 382 U.S. 454, 86 S.Ct. 645, 15 L.Ed.2d 522. As such, it substantially forecloses the question here of due process or equal protection.

Specifically, the court held that the term "work of necessity"⁷ met the constitutional standards. The court further held that "necessity" is necessarily an elastic term because of various factors which must be considered in determining the question. The court held that "work of necessity" * * * "means labor reasonably necessary for the worker to perform to save himself from unforeseen or irreparable injury or loss or necessary for the welfare of community in which he resides, viewed in the light of the facts and circumstances existing at that time. It does not mean that which is indispensable, but it means something more than that which is merely needful or desirable."⁸ Solomon, supra, 141 S.E.2d at 829.

The problem of defining "novelties and souvenirs"⁹ has also been settled. The South Carolina court stated that "`novelties' and `souvenirs' are terms of common usage in the business world and business people of ordinary intelligence in the position of the defendant would be able to know what exceptions are meant by the terms, either as a matter of ordinary commercial knowledge or upon reasonable investigation. Under such circumstances there is no need to guess at the statutes meaning in order to determine what conduct it makes criminal."

Plaintiffs seek to avoid the mandate of this decision by stating that the factual basis was not sufficiently developed in the Solomon case, supra, to formulate a proper definition of the alleged vague terms of the statute. They contend that there has been a further factual development and since the definition of the terms is necessarily a factual matter the South Carolina Supreme Court did not have, at the time it decided the Solomon case, supra, a sufficient factual basis on which to base its decision.

While this three-judge court is not bound by a state court decision that a state statute is constitutional, Goesaert v. Cleary, 74 F.Supp. 735 (D.C. Mich.1947) aff'd 334 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163, the Supreme Court's dismissal of the appeal in Solomon because it was found to present no substantial federal question is a decision on the merits by the Supreme Court of the United States, which is binding upon us. Beck v. McLeod, supra. That adjudication forecloses any contention that the South Carolina statute is so facially vague or indefinite as to make it constitutionally infirm. The record in this case does not alter that view. The attack is centered upon the terms "novelties" and "souvenirs," but the showing here is entirely consistent with the assumptions in Solomon. Each is a term familiar to merchants and employed by them to describe recognizable classifications of goods. While there may be some peripheral questions as to the outer reach of either term, they are the terms of the trade, and there is no hint of a suggestion that either term could embrace the great variety of wearing apparel and most of the other hard and soft goods which the plaintiffs offer for sale in their store, the sale of which is economically essential to their Sunday operation.

Plaintiffs attack the penalty imposed in Section 64-2.3 as constituting cruel and unusual punishment and therefore being unconstitutional under the Eighth Amendment to the Constitution of the United States. While it is recognized that fines may constitute cruel and unusual punishment within the prohibition of the Eighth Amendment, United States v. Schechter, 8 F.Supp. 136 (E.D. N.Y.1934); Oak Mfg. Co. v. United States, 193 F.Supp. 514 (N.D.Ill.1961); O'Malley v. United States, 227 F.2d 332, cert. den. 350 U.S. 966, 76 S.Ct. 434, 100 L.Ed. 838, this statutory fine clearly does not fall within the prohibition. A substantial fine is necessary in situations of this nature in...