*4 Before JONES, J., EAGEN, O’BRIEN, C. ROB- ERTS, POMEROY, MANDERINO, NIX and JJ.
OPINION MANDERINO, Justice. appellants, Goodman, Nate Goodman and Voss &
Inc., complaint equity seeking enjoin filed the en- *5 Sunday proscribing
forcement criminal statute of the groceries. produce Act of meats, and June sales of fresh 4699.- 24, 1939, 872, 699.15, amended, 18 P.S. § P.L. as § 7364). hearing, Following (recodified a as S. § appeal denied and this followed. relief was of all appellant, Goodman, the sole owner The Nate Goodman, appellant, corporate Voss & of the stock Pennsylvan- grocery Inc., operates Erie, store in which a Bunyan Bunyan. The Paul the name of Paul under ia, employed persons, alwаys or store, ten more which has In grocery ad- line of store items. carries standard department which dition, a delicatessen the store has sandwiches, baked prepared salads, sells foods such Bunyan the Paul beans, spareribs. In 1972, and chicken County were twenty-eight in Erie other stores store and subjected to arrests for sales. present filed on December
The action was multiple attempt gain arrests. 1972, in relief from challenged has filing action, the Act Since ap repealed and reenacted. 18 Pa. S. 7364. been § moot however, rendered pellants’ action, is not cause wording act is by of the new reenactment. Since change shall Act, which we the old with one identical to challenge properly discuss, appellants’ before later Statutory S. § Act us. The Construction its and is repealed henever statute states “[w] or provisions time reenacted same are at the same statute, repealing substantially the same terms active continued in construed as earlier statute shall be rights under such operation. All incurred and liabilities preserved enforced.” earlier statutе prohibits exceptions, act, certain The new with selling or any engaging in the person from business produce meats, dealing in fresh at retail otherwise Sunday. are three groceries Pa. S. 7364. There § exceptions in the prohibi- law. law states apply tion does not retail establishment: *6 (1) employing persons; less than ten (2) produce groceries where fresh meats, are of- proprietor
fered so sold or [sic] members of his family; immediate or (3) prepared premises where food on the for human
consumption. (The appeared or wоrd between the word offered the word in repealed sold in statute. The word so the reenacted misprint.) statute is an obvious Hopewell In Bertera’s Foodland, Masters, Inc. v. 236 A.2d this Court held that exceptions act and the to the act did violate either the Appellants federal or the state constitutions. raise concerning no constitutionality gen- issue prohibition eral in the act. The issues raised concern the exceptions alleged discriminatory and the enforcement of the act.
I. appellants urge The that we our deci considеr sion in constitutionally exception Bertera that the first They valid. exception contend that that denies them equal protection of the in laws violation of their Four teenth special Amendment rights, and constitutes a law Pennsylvania in violation of the See Pa. Constitution. Const, art. 32(7), arguments Both of § P.S. these § rejected were again considered and in Bertera. We must reject arguments. these
Bertera “employing held that ten the words less than persons” “employing persons” did not mean than ten less Sunday, persons” “employing but meant ten less than any at Statutory time. Act of 1972 Construction gives guide following us in Section 1922: ascertaining Assembly
“In
the intention of the General
presump-
in
following
the enactment of a statute the
tions,
others, may
.
among
.
.
be used:
[t]hat
language
resort
when
court of last
has construed the
Assembly
subsequent
statute,
used
the General
subject
the same
on the same
matter intends
statutes
language.”
placed
construction
on such
1922.
Pa. S. §
decision,
legislature,
after the
reenact-
Since
Bertera
exception
using
to those
ed
first
words identical
decision,
should
at the time
the Bertera
we
act
рresume
legislature
that the
intended the first
mean what we
it
in Bertera.
said meant
except
retail establishments
decision to
“employing
persons”
with-
ten
time was
less than
at
*7
McGowan
legislature’s
constitutional discretion.
Maryland,
tail establishments the same commodities into two different solely classifications based on the number of employees arbitrary, in and results harm to economic appellants. Initially, statutory we note that all clas permitting differently sifications one class to be treated than another class, type involve some measure harm one discrimination, the classes. Such how ever, does make the classification unconstitutional. legislature authority has the constitutional to estab provide lish persons different classifications of and to for different treatment of the classifications under the long law so as the basis for each classification is reasona bly sought prevented. related to the In Mc evils to be Gowan v. Maryland, 366 U.S.
1105, 6 L.Ed.2d the Court stated equal protection test as follows:
“Although precise developed, no formula been has per- Court has held Fourteenth Amendment scope mits the enacting States wide discretion groups differently laws which affects some of citizens safeguard than others. The constitutional offended grounds wholly if the classification irrel- rests on objective. evant to the achievement of the State’s legislatures presumed State have enacted within power that, their despite constitutional the fact practice, inequality. their laws result some A statu- *8 tory any discrimination not be if оf will set aside state reasonably (ci- justify facts it.” conceived omitted). tations determining legislative
The test for validity classi provisions 3, Pennsyl fications under of article Constitution, special sig vania prohibiting laws, not is Dilworth, Bargain nificantly City different. U.S.A. v. 129, (1962); 407 439 Pa. 179 A.2d also Chartiers see Valley County Joint Schools v. School Directors Board of Boehm, (1965). v. 211 520, A.2d 487 day providing in a
The state has
valid interest
public,
of rest and recreation for members of
general
against Sunday
proscriptions
sales are constitu
Many
general prohibitions
exceptions
tional.
to the
have
upheld
recognition
public’s en
been
of a
that the
because
joyment
en
can be
day
of rest and recreation
day
employment
hanced
set aside
of some on
Guys
for
rest and recreation of
Two
others.
from
582,
Harrison-Allentown,
McGinley,
Inc. v.
366 U.S.
Mary
(1961);
“Distinctions stated terms target attack number, have often been the by the argued here, ruled . . . It is and it was . below, for court no that there can be reason distinc- have tion, purposes taxation, those who between eight. Yet, only employees have and those who seven often type this is the which law of distinction num- upon called It a difference make. day ends bers which the moment when marks
323 night begins, infancy when the disabilities of termi- legal competency nate and the status of It assumed. separates large incomes which are from taxed exempt, ones smallеr which are as it marks here the proprietors larger difference between the businesses proprietors who are taxed and the of smaller business- es who are not. expense
“Administrative convenience and collection or measurement the tax are alone suffi- justification cient for the difference between the treat- taxpayers ment of small incomes or small and that meted out to others.” 510-11, 873,81
Id. at
at
57 S.Ct.
L.Ed. at 1253-54.
Carmichael,
See also cases cited
footnote 2: Consoli-
Illinois,
207,
616,
203,
dated Coal
22
Co. v.
185 U.S.
S.Ct.
872,
(coal
employing
46 L.Ed.
mines
five or more
875
subject
Arkansas,
inspection);
211
McLean v.
U.S.
551,
206,
(mines employ-
539,
29 S.Ct.
classification County Valley Board wise, Joint Chartiers School v. of 487 Boehm, 211 A.2d v. School Directors classification, upheld (1965), we a numerical having more code, school districts school which treated having 4,000 pupils differently than school districts than 4,000 pupils. less than classify legis- according a
Many existing to other laws legislatively number latively A selected number. selected may particular of those who sue a dollars divides legislatively may not, selected a court from those who successfully may be years of those who number divides may legisla- not; a those who sued on a contract from may days tively who divides those selected number of may not. who have in the courts from those redress grocery act, legislatively number In the selected legitimate legisla- reasonably “less than ten” relates legislature may provisions objectives. establish tive The permitting employed that others people to be so some may day It chose enjoy their of rest recreation. objective by providing establish- that retail achieve this open. employing persons less ten remain ments than upon choice that its We have basis which to conclude no legislature a number was Had the chosen unreasonable. might conclud- thousand, ten there be a basis for such as relationship to ing no the number had reasonable might complete- objective. legislative a number Such ly legitimate objective providing legislative thwart hand, day we recreation. On the other rest and hardly which would allow could invalidate employing employee to re- one retail establishment Maryland Sunday closing law, open. consid- main Maryland, ered in 366 U.S. McGowan v. exception, (1961), contained
1101, 6
such an
L.Ed.2d
unconstitutional. McGowan
and it was
declared
many exceptions
pointed
had to be
out that each of the
upheld
justify
exception.
any
if
state
facts could
Obviously, somewhere between the number one and the
thousand,
number
validity
ten
the line of cоnstitutional
might
crossed,
say
but we cannot
the line
crossed
was
legislature
when the
selected “less than ten.”
legislature
given
is to be
wide discretion
judicial
classifying,
legislative
into
inquiry
clas
sifications should not concern
itself with
wisdom
long
so
choices
as the
are reasona
choices
bly
objectives.
legitimate legislative
Levy
related
v.
Louisiana,
88 S.Ct.
L.Ed.2d 1010
McGowan
366 U.S.
*11
420,
1101,
Safeway
(1961);
81
6
S.Ct.
L.Ed.2d 393
Assoc.,
334,
Stores v. Oklahoma Retail Groc.
360
79
U.S.
1196,
Valley
(1959);
3
S.Ct.
L.Ed.2d
Chartiers
1280
County
Joint School v.
Directors v.
Board
School
of
Bargain
Boehm,
520,
City
(1965);
418 Pa.
II. exception. The next per. issue concerns the It second mits open retail establishments to remain “where fresh meats, produce by and are the offered sold [or] groceries
326 family.” proprietor or his immediate members of Hopewell 7364(c)(2). the Pa. S. At time Bertera’s § Foodland, Masters, 20, 37, Inc. A.2d decided, exception was this contained addi- interpreted language tional mean that which Bertera open retail establishment remain “where fresh could meats, produce groceries by or are offered sold proprietor family em- or of his members immediate ploying persons.” аdded.) (Emphasis less than ten See amended, 24, 1939, 699.15, Act of June P.L. § excep- In P.S. 4699.15. the second § reenactment of tion, legislature language. The deleted the italicized reasoning exception not therefore Bertera as to this controlling. change This made when was the repealed grocery act was and reenacted. exception
The second retail establish- now classifies or ments into those the commodities are offered where persons family and sold who are members same by per- or those where like offered sold сommodities are family. The who are members same sons open are former are allowed to on but latter solely separate not. classifications based offering selling commodi- family status of those or advantage gives thus an economic ties. *12 solely degree groups of consan- certain of the because degree similarly except guinity. Groups situated, for the thereby consanguinity, harm. of economic suffer specifically whether consider Bertera did not family reason solely a classification based on status was оbjective ably legitimate legislative to be the related to Sunday closing assumed laws. Bertera attained the in stores classified that discrimination favor of economic solely itself, was family status, in and of on the basis agree. objective. cannot legitimate legislative We legiti discrimination, itself, is not Economic in and of closing of justifies legislative objective the mate which Sunday dis- Economic and not others. stores on some
327 constitutionally crimination be when it can tolerated legitimate objec- incidental to some other family might tive. A clаssification on status based reasonably objective legitimate legislative related to a contexts, though other even inci- economic discrimination dentally results, perceive but we unable to rea- relationship sonable present context. Without relationship, family such the violates status classification equal protection amendment, the fourteenth clause of Morey Doud, 1344, v. 1 354 L.Ed.2d U.S. 77 S.Ct. (1957); Cahoon, 1485 Smith v. 283 Daniel, 75 (1931); 1264 L.Ed. Commonwealth 243 article A.2d 400 and violates Pennsylvania prohibits special Constitution which City laws. Pittsburgh, Kurtz v. Pa. 31 A.2d (1943); Casey, Commonwealth v. 80 A. (1911). To the extent inсonsistent that Bertera is with opinion, this it is overruled.
III. appellants The next court contend that the trial erred holding appellants’ that entire establishment retail open could excep- not remain on the third under exception Sunday opening tion. That of a re- allows tail prepared prem- establishment “where food is for consumption.” 7364(c)(3). ises human 18 Pa. S. § Bunyan store, The trial court found that the Paul which occupied eight square feet, thousand five hundred used square preparation feet for the of food for human con- sumption meaning within the the third therefore, held, act. The trial court that the appellants open portion premises could of the devot- ed to preparation consumption. food human court, however, trial appellants right denied the open remaining portion was not store which preparation consumption. used for the of food for human appellants argue that the entire retail establishment *13 square open though five hundred remain even excep- third purpose qualifying for the feet is used for a agree. tion. cannot We appellants urged by interpretation
The any employing that a retail establishment would mean open employees permitted to Sun number would be third day premises for the portion qualified if Act, in as exception. Statutory Construction Under the ob intent, certaining legislative are consider we 1921(c) (4). ject by 1 Pa. to be attained a statute. S. § particular of a consequences We are also consider pre 1921(c)(6). interpretation. must We S. § Assembly a result not intend sume that the General does 1922(1). The that or 1 Pa. S. is absurd unreasonable. § ap interpretation suggested consequences of the general prohibition pellants would render ineffective produce against meats, sales of fresh groceries. legislative objective providing The day We thwarted. rest and recreation would be interpretation. appellants’ accept thus unable entire retail properly appellants’ trial court that the held open ex the third under establishment not remain could ception.
IV.
trial
that
appellants’
final claim
had
concluding
court
act
erred
that
Although
against
discriminatorily appliеd
been
them.
uniformity
the record
establishes that there was a lack
no
Sunday closing law,
there
enforcement of the
uni
evidence
the lack
record to establish
formity
purposeful
was
discrimination
the result of
particular
appellants
aimed at a
were
of which the
class
purposeful
shown
members. A
must be
discrimination
presume
cannot
we
such discrimination. Snowden
(1943);
Hughes,
321 U.S.
tutional second Statutory portions remaining the act. The the of from provides: 1972, 1 Act of Pa. S. § Construction every provisions shall be severable “The of statute provi- the court that valid . the finds unless inseparably essentially the so and sions of statutes are depend provision upon, the with, void and so connected application, presumed it the General or that cannot be pro- Assembly remaining the valid would have enacted finds one; or unless the court visions without the void alone, standing remaining provisions, that valid incomplete incapable being are of executed are and legislative accordance with the intent.” guidelines provided, we Under the conclude unconstitutional second is severable. provisions act not “es constitutional sentially with, inseparably and connected and . dependent exception. upon,” the unconstitutional second presume Assembly not We cannot that the would General portions have enacted the act with constitutional exception. out unconstitutional The constitu second portions complete capable tional of ex act are and ecution accordanсe with the intent.x appellants’ open Since the entire store Sun- day exceptions, they under either the first or re- third subject general prohibition against main Sun- day produce meats, groceries, sale of fresh and and are injunctive not entitled relief. opinion expresses EAGEN,
Part I of the views this POMEROY, MANDERINO, NIX and JJ. expresses II opinion JONES,
Part of this views J., EAGEN, C. and MANDERINO, ROBERTS JJ. members of express of all the views III and IV
Parts O’BRIEN, except J. the Court pay party costs. own affirmed. Each Decree concurring opinion in J., which ROBERTS, files a joins. JONES, J.,C. dissenting opinion in concurring
NIX, J., files a J., joins. POMEROY, which *15 O’BRIEN, J., dissenting opinion. files a ROBERTS, (cоncurring). Justice majority’s I dissent from the refusal to invalidate Sunday Trading exemption employing Law’s of stores persons.1 agree exemption less ten than I that for family-operated Because, businesses is unconstitutional.2 my view, exceptions severable,3 I both invalid would affirm the decree of the chancellor.4 justification exempting
What is the stores small Sunday majority, from the Trading de- Law? The while voting drawing propriety much attention to the particular line (less employees) at a to size fails than ten properly relationship this purposes consider the to the Although 1. Hope- the Court was faced in Bertera’s with this issue Foodland, Masters, 20, well (1967), Inc. v. Pa. A.2d 197 428 236 controlling that case is court. opinion of the because there no was opinion announcing Justice Musmanno filed the result. opin- Chief Justice concerring Bell and Mr. Justice Roberts wrote ions. (now Justice) Mr. Justice Justice Chief Jones and Mr. Eagen concurred in the result. filed a dis- Mr. Justice O’Brien opinion. senting separate opinion. Mr. Justice Cohen filed a Consequently, 2. join Opinion I in Part II of the of the Court. Hopewell Foodland, 20, 3. Masters, 55, Bertera’s Inc. v. Pa. 428 236 (1967); A.2d Chiroрractic 210 see State Board Exam- 293, 298-300, iners (1971). Fellowship, v. 272 A.2d 481 Life 4. appellant only Because challenges validity statutory of the exemptions, opinions none of the in this case are be read to as expressing any constitutionality view on the vel non of the Sun- day Trading Laws. solely em- based on number of law of discrimination expressed my view, ployees. I concur- adhere to Hopewell Foodland, ring opinion Inc. Bertera’s Masters, A.2d that between, arbitrary relationship there is no rational and the economic created distinction purрoses Sunday Trading of the Law. opinion:
As noted in that Supreme thing in Two say, Court “It is one legis- Guys power of the say, that it ‘within the did to have concluded that these businesses lature [dis- disrupting particularly department count were stores] day atmosphere of the because the intended danger great attracted, of motor traffic volume competitors opening and their their also large employees.’ at number of 366 U.S. thing ration- quite to use But it is another this
1140. give competitive es- ale as a boost smaller lever super- Legislature tablishments. For the to deсide markets, stores, disrupt the desired as well as discount Sunday atmosphere legislate the rationale is to within exempts Guys. Yet, of Two when the the cor- statute *16 inject prohibition, the el- ner store from its we Sunday our ement of economic discrimination into entirely closing law, and thus create an different situa- by Supreme tion the Two from that faced Court Guys.” 55-56,236
428 Pa. at at 216. A.2d today agrees that, Indeed, majority the “[e]conomic legitimate leg- discrimination, itself, is not a and of objective. can be tol- islative Economic discrimination constitutionally it is incidental erated when legitimate legislative objective.” other some Ante, at 213.
Despite
majority
recognition,
the
fails to demon-
this
exemption for small stores to
strate the relation of the
legislative objective.
purpose other
If the
noise,
Sunday Trading Laws
to curtail traffic and
see
is
McGinley,
Guys
Inc.
Two
Harrison-Allentown,
from
582, 591,
1135, 1140,
lative according employees solely number of is manifest- ly irrational, the location of the is irrelevant. line Legislature solely
Here chose to differentiate ground statutory objective. unrelated to And a dis- its plainly crimination that has cannot no rational basis protection challenge. Hence, equal withstand ex- ceptions constitutionally impermissible.
JONES, J., joins concurring opinion. C. in this dissenting). NIX, (concurring Justice accept reasoning majority that re- I cannot *17 employ- approval exemption in the for sults of an stores persons ing rejecting than less ten and classification upon justification family If the affiliation. based exemption approved by majority (less the than ten employees) significantly is that small retail stores are purposes sought less to the offensive to be achieved Sunday Trading Laws,1 family-op- the limitation of a (if so) erated business is as effective not more than arbitrary selection оf the number nine.
I expressed by subscribe to the views late Justice Musmanno in Hopewell Foodland, Bertera’s Mas Inc. v. ters, 20, 236 A.2d 197 that:
“Exception No. 2 is a There are humanitarian one. many family-owned grocery small stores from which a family unjust derives its livelihood. It would type op- shut down this store, allowing of a while eration employ of marts persons. which mem- Since not, except bers an immediate in- family do in rare stances, go excessively into figure, numerous there danger is no that a corner store could swell supermarket into a by polygamists mammoth manned boasting hundreds of at children.” at 236 A.2d Id. 205.
Accordingly, I, while I concur Parts III and IV opinion Manderino, of Mr. Justice I dissent from must my Part II. In view of belief that the second valid, problem also I have not considered the discussed opinion for the Court Part under V. POMEROY, J., joins dissenting concurring in this opinion.
O’BRIEN, (dissenting). Justice respectfully previously I must dissent for the reasons I Masters, Hopewell Foodland, stated in Bertera’s Inc. (1967). 236 A.2d 24, 1939, § 1. § Act of 18 P.S. June P.L. 699.15 as amended 4699.15, question § constitu- recodified 18 P.S. 7364. The ap- tionality general presented in this “Blue Laws” is not peal. Appellant challenge validity has limited his statutory exemptions my views have been confined presented. narrow issue