Zayre of Georgia, Inc. v. City of Marietta

• Decision Date: 25 September 1969
• Docket Number: No. 26161.,26161.
• Citation: 416 F.2d 251
• Parties: ZAYRE OF GEORGIA, INC., et al., Appellants, v. The CITY OF MARIETTA et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

416 F.2d 251 (1969)

ZAYRE OF GEORGIA, INC., et al., Appellants, v. The CITY OF MARIETTA et al., Appellees.

No. 26161.

United States Court of Appeals Fifth Circuit.

July 30, 1969.

Rehearing Denied and Rehearing Denied September 25, 1969.

Hoke Smith, Malcolm H. Ringel, Smith, Cohen, Ringel, Kohler, Martin & Lowe, William T. Johnson, Atlanta, Ga., for Zayre of Georgia, Inc., and S. S. Kresge Co., appellants.

Lawrence B. Custer, Marietta, Ga., for Gibson's Discount Centers, Inc., intervenor; Custer, Brenner & Smith, Marietta, Ga., of counsel.

Berl Tate, Arthur Crowe, Jr., Ben F. Smith, Sol. Gen., pro se, George W. Darden, Marietta, Ga., for appellees.

Before BELL and COLEMAN, Circuit Judges and BOYLE, District Judge.

Rehearing Denied and Rehearing En Banc Denied September 25, 1969.

BELL, Circuit Judge:

This is an appeal from the denial of a motion to broaden a preliminary injunction issued by the United States District Court for the Northern District of Georgia.¹ We affirm.

Appellants, Zayre of Georgia, Inc. and S. S. Kresge Company, both retail department stores,² initiated this litigation seeking an injunction against the cities of Marietta and Smyrna, Georgia and the Solicitor General of the Cobb Judicial Circuit prohibiting the discriminatory enforcement of the Georgia Sunday closing law, Ga.Code Ann. § 26-6905,³ and the revocation of business licenses on the grounds of alleged violations of the closing law. Appellants alleged that while they were being threatened with prosecution and revocation of their business licenses for remaining open in violation of the statute, other business establishments selling all or some of the items which appellants offered for sale in direct competition with appellants were being allowed to conduct business on Sunday without threat of prosecution or revocation of licenses. It was appellants' contention that such unequal enforcement denied them equal protection of the law as guaranteed by the Fourteenth Amendment to the United States Constitution.

On the same day the complaint was filed the District Court issued a temporary restraining order, the pertinent part of which reads as follows:

"In the meantime and until further order of this Court the defendants and all persons acting in concert with them, are temporarily restrained from enforcing Section 26-6905 of the Code of Georgia of 1933 in a discriminatory manner and from revoking business licenses by reason of the violation of said Code Section in a discriminatory manner. This restraining order is not intended to prohibit the enforcement of Section 26-6905 of the Code of Georgia of 1933 * * * nor to prohibit the revocation of business licenses by reason of its violation, but rather it orders that such enforcement be on a nondiscriminatory basis * * *."

Thereafter, the court entered a preliminary injunction in substantially the same terms as the temporary restraining order previously entered. Appellants moved for further relief. Their idea was that the relief originally sought was not broad enough in that others not in competition with them were being allowed to operate their regular businesses or engage in their regular occupations on Sundays without threat of sanction, while appellants were required to do so at their risk. Accordingly, appellants moved the district court to enlarge and broaden the preliminary injunction already in effect so as to enjoin this alleged form of discrimination. They cited several examples of non-competitive businesses or occupations as to which the statute was not being enforced. Some of these included aircraft manufacturing, real estate, florist, the delivery of newspapers, theaters, funeral directors, and radio stations. The district court denied the motion to enlarge and set out the principal reason for said denial as follows:

"This case originally came before this court on the basis of discriminatory enforcement of the statute as between persons similarly situated within Cobb County. This is what was enjoined and all that was enjoined. It is still enjoined. But by their motion to enlarge the plaintiffs do not complain of discriminatory enforcement against them. What they do complain of is non-enforcement against other professions and trades in which plaintiffs are apparently not engaged. There is, of course, a great difference between discriminatory enforcement of a statute and non-discriminatory non-enforcement. So far as appears from their motion, for example, the plaintiffs themselves, if they care to do so, may operate a funeral parlor, a radio station, a pet shop, a florist shop or a business in any of the other categories complained of on the same basis as all other persons.

"Such being the situation, it is difficult to see how the plaintiffs have standing to assert the charges contained in their motion."

There is no contention that the Sunday closing law is unconstitutional. Cf. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), and Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961). The sole issue presented is whether appellants have standing to assert a denial of equal protection under the facts of the case. We agree with the district court that they do not.

Appellants' predicate is the Fourteenth Amendment prohibition against unequal enforcement of statutes or ordinances announced in Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886):

"* * * Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution."

The resolution of the issue in the case before us depends upon the extent to which the principle of Yick Wo is applicable to the facts of this case. Yick Wo involved discrimination based on race between two classes in direct economic competition with one another. Here, after the granting of the preliminary injunction, there could no longer be any inequality of treatment among those in direct economic competition nor is any claimed. Consequently, there is no basis for applying the teaching of Yick Wo in the instant case wherein those allegedly receiving preferential treatment are not in similar circumstances to appellants.

In a recent case we found no substantial federal question in a context of alleged disparate treatment of school children not similarly situated. Davis v. Georgia State Board of Education, 5 Cir., 1969, 408 F.2d 1014. We stated:

"Basic to any complaint of denial of equal protection must be some showing that the persons or groups being treated differently are similarly situated and that their disparate treatment by the state is either without any rational basis or is based on some invidious factor such as race. * * *" 408 F.2d at 1015.

If appellants are contending, as the district court discerned the situation, that they should be immunized from prosecution under the statute unless and until other violators are brought to justice, then their attack also must fail under the circumstances here. A similar argument was rejected by the Supreme Court in Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). See also Moss v. Hornig, 2 Cir., 1963, 314 F.2d 89; and United States v. Rickenbacker, 2 Cir., 1962, 309 F.2d 462.

In sum, appellants failed to allege a cause of action under the equal protection clause. The federal courts have no general supervisory power over the operation of state and local governments. The federal courts can, of course, afford relief where the equal protection of the law is denied by a state or a local government but such a denial subsumes discrimination. A showing of discrimination rests, in turn, on a difference in treatment as between those similarly situated. The similarity element is missing here.

Affirmed.

BOYLE, District Judge (dissenting).

I respectfully dissent and would, therefore, reverse and remand the case to the District Court with directions to enjoin any discrimination whatsoever in the enforcement of the statute amongst all those pursuing the same or different business or occupations not within the statutory exceptions.

The courts of Georgia are the proper courts to pass upon the meaning of a Georgia statute (including any exceptions...