*1 through no act of the ended of law and impos- plaintiff not the defense make available plaintiff. sibility parties performance When the expiration they knew of the contract entered into the patents, if saw fit contract dates of complain royalty beyond now time, by operation brought anticipated about of an condition of this that preclude conclusion of law. our plaintiff, agreement phase dur- granting any ing license contract, life lubricants under or sell to manufacture it is mentioned, which the states formulae within these alleged he did. accordingly cause reversed and proceedings not inconsistent further remanded opinion. Bouck Chief Justice Burke, Mr. Justice Young concur. 14,193. No. Springs.
Allen 141) (75 [2d] 10, 1938. January Rehearing denied Decided December *2 plaintiff in error. Foard Brothers Ben S. Wendelken, for defendant error. En Banc. Knous delivered opinion the court. in error, to whom we shall refer
Plaintiff defend- as ant, was violation convicted of the of an ordinance City pertinent, of Colorado which, far follows: any reads as shall person, “It he unlawful for corporation open keep firm, or association or to cause open keep store for the of mer- sale necessity; Sunday, except required chandise on nothing prohibit any person, in this section shall corporation keeping open association firm, or legitimate orderly transaction business boarding hotel, restaurant, hath house, house, confec- tionery, drug livery garage pre- retail or stable store, delivery vent the fresh milk, cream, cream, ice bakery prepared papers fruits, tobacco or articles, Sunday.” following stipulated
The case heard on facts: ‘‘ alleged 1. conducted a That at time the defendant Springs, of Colorado day alleged, Sunday, sold in the usual staple groceries his course required by necessity, groceries except as all were thereof and the sales are retail time, of their at
That Sundays the usual course flavoring soaps, extracts, teas, such items products usually spices and similar coffees, retail stores.” Among other contentions the asserts that facts ordinance is in case, under the as to him, Colorado Con- Y, of section article violation legisla- special discriminatory inhibiting stitution tion. reversed think of conviction must
We *3 ground. on this city,
Unquestionably that a it is the law authority by power, police the the exercise of the general carrying its prohibit on within to the ordinance Sunday, occupations of all on limits those by or businesses charity, upon ground there that
of the or government peace, good good and welfare the order, promoted protected. It its and will inhabitants equally an however, is its certain, that if adopted discriminatory to or amounts so ordinance purpose irrespective special legislation, of the or class for duty passed, a it relieve it is the court illegal from effect. will the under ordinance here observed that generally: provides it shall First,
consideration that any any person keep open store for unlawful Sunday, except on sale merchandise Sunday by necessity; permits on sale second, person, articles; of milk and other enumerated and, operation, exempts absolutely from its in the third, orderly legitimate transaction of business, certain including drug stores and retail stores. establishments, drug ordinance, therefore, Under the terms a store, lawfully on can character do same busi days engaged during in which it is ness other stipulated week. usual course of their that say legitimate orderly which is “in the drug conduct of their business,” stores days Sunday “soaps, on other sold flavor spices ing usually products teas, coffees, and similar extracts, ’’ By retail stores. the same stipulation agreed of facts the defendant Sunday sold, as was the usual course his business on staple groceries. ques It cannot be stipulation tioned, if, does not concede, so indeed, being by drug the articles enumerated as staple groceries. come within classification of Under stipulation facts, ordinance creates whereby perfectly a condition lawful for a retail staple groceries, store sell while the operator at the same ordinance time selling these identical items. This Colo. 530, 58 Pac. principle 1089, held unconstitutional an ordinance offending. charged In the defendant was city the violation prohibited any of an ordinance of of Denver which keep open “to within conduct, city, clothing the limits of or other certain * * * ** * enumerated offer within clothing or other merchandise * * * Sunday.” mentioned The evidence established kept clothing city that the store in the *4 place of that had merchandise character in of his Sunday. discharged business on He the trial judgment, saying upon affirmed and we this subject: police city, powers, may
“The in of the exercise its occupations subject all within to limits reasonable regulations, protection public for the interests, or arbitrary power public not an welfare; by police
one, which controlled for the avocations be People, regulations question. judicial Eden v. is a any benefit to either cannot be of Ill. good city, government limit the of to the welfare or engage right in the business a common to exercise upon by arbitrarily imposing merchandising upon Sunday, and certain articles disabilities dealers.in happen engaged yet to a business others, allow who necessary neither character, or avocation a different upon although day, continue it charitable, nor public permitting upon generally, the effect on would be the or avocations business carrying from the on business result same as would ** # doing. from so on those far it affects ordinance, clear “It particular clothing, is directed to a class dealers in exempts others substantial merchants, and without operate upon why is made reason back generally upon merchandise, all dealers them, not doing compels them to refrain from avocations. or all neighbors yet en- Sunday, allows their business gaged not ordi- mentioned in the sale privilege they conclude, are denied. We nance alike, all does affect the ordinance occupation liable in- which is not that a business morality, disorder, create tend to terfere with special city no cannot control, and over which prohibition subject singled made out, Sunday. People, App. May 157; supra; Granneman, 132 Mo. Krech, State Tacoma v. 326.” naming while ordinance,
The Colorado of a as a could legal attained conducted not be by excluding ordinance, in the Denver condemned exempted class which could operate of retail least the case at and, *5 privilege selling have the denied grocery store. not, conld suc cessfully he, contended that the business is in way per unlawful nor se; conduct does its public morality—if manner interfere with does—to any greater or different extent than would the conduct ing legitimate merchandising The business. supra, consequently applies doctrine of just forcibly to a as to an establishment store clothing. selling here Colorado As to Springs discriminating ordinance has the vice of where legislative no there is basis discrimination. The authority undoubtedly adopting the ordinance by
was motivated a desire to further the prevent observance of that Sabbath and the desecration operation of secular establishments. object, However, the not meet in that, did this result stipulated, Sunday under facts here the sale on groceries by drug stores—exempt from the precisely disturbing have ordinance—would upon effect the observance the Sabbath proscribed Upon of the defendant. supra, principle the Denver v. Bach, Mergen Denver, followed this court Pac. wherein was that an ordinance held prohibited keeping open grocery selling Sunday ipso groceries on facto invalid. accordingly reversed and cause proceedings
remanded directions to dismiss the against the defendant. dissent. Mr. Hilliabd Justice Bakke Justice Bakke, dissenting. opinion,
I am in accord with court’s because it invalidating effect of an ordinance has Springs, in Colorado a home rule been places stamp quarter century, approval of a so- all of merchandise the sale lands called stores. *6 clearly closing legislation, valid, such, is as discriminatory. No 60 1030. ex C. J.
unless otherwise is here involved of the tended discussion discrimination necessary. principles controlling stated been have The many and a sufficient times and reiterated re case of In recent statement of them found in the Interrogatories, (2d) P. where 587, 52 etc., 663, upheld law. so-called restaurant we except may groceries case be Ky. necessity. 190 S. 83, Commonwealth, 173 v. McAfee App. Hogan, 212 Mo. 381; L. 1917C, W. R. A. State 671, S, W. stipulation, urges, Defendant recited in selling groceries are in Colorado may legit- every abe interference. That without urging complaint, ordi- here that the but no imate one govern test all, After that situation. nance does not despite provisions, but of a law is done is not what provides. what it necessary
itWas defendant to merchan- sell meaning exception of the dise involved within the ‘‘ ’’ Again ordinance, stipulation say simply I no. The of facts recites ordinary staple groceries Sunday. urges course trade Defendant groceries necessity necessary, exists when- a are hence anybody buy them, that, ever wants to specious argu- they time. That can sold at language con- ment. The of the ordinance Necessity, here, used strued fashion. so strained a emergency. requires nature a circumstance in the of an definitely Something “in of his busi- usual course degree must with- ness.” The or extent to which it n attempt out the we here usual course of do not question decide. of fact be determined That is each shown case. There was no here. reply onr in his calls attention to the brief,
Defendant, (2d) (Cal.), recent of Deese Lodi July, similar 1005, decided in in which a somewhat Appeals voided District Court ordinance was persuasive California, not conclusive. which is but language: Lodi “The The California court used this ordinance has neither Christian observance moráis, support Sunday, public safety it.” health, welfare, language applicable California That is not here. The guise clearly discriminatory. Under ordinance was of police power protect orderliness an exercise of cleanliness, closed health and expressly permitted pool halls, halls, dance *7 liquor operate, sporting to be and contests stores to and contrary express provisions to its held. were thus Its being purpose. ordinance before us, declared clearly not is as dis- reasonable in its classification, criminatory. exempt purports “re- transactions quired necessity,” specific of its and the legislative exemptions it If are well within discretion. permitted one class of merchants the sale circumstances such sales under question presented. class, another a different appear the record. No such facts thought by con The two Denver cases court trolling, 530, 58 1089, Pae. County
Mergen Denver, 104 385, v. Colo. authority for the reached. are not conclusions 399, Pac. law ordi is a between There distinction positively things done, to be forbid nances forbid cases and those recognize distinction. that should The court Finally, Klotz, St. the Ohio case—Olds O. authority (2d) not be considered as 371—should 3 N. E. regulate sought involved there
here. The ordinance on week closing as well hours of opinion will at the glance mere Sundays, at against the force of is directed indicate it The ques the week. tempted regulation during of hours closing tion is not discussed. is, it law to interpret is the courts duty of they wish how administered, how is being are “not of Colorado the ordinances
to be. If the legis- concern times, in tune” with the ours. body lative opinion. in this Hilliard concurs Mr. Justice 14,144. No. Stepp.
Estate Stepp. Stepp (75 146) [2d] December Decided