*1 HECHINGER COMPANY STATE’S ATTORNEY FOR PRINCE GEORGE’S COUNTY 31, September Term,

[No. 1974.] Decided October argued Digges, before Smith, cause Singley, Eldridge JJ. Levine, O’Donnell, Crawford, Goldberg Victor L. with whom were Crawford& brief, Kass, on the Benny L. Boasberg, with whom Hewes, brief, appellant. Klores & Kass on the III, General, Warfield,

Albert Gallatin Assistant with Burch, whom were Francis B. Attorney General, and Sharp, Cláreme W. Attorney General, Assistant brief, appellee. *2 J., opinion delivered the of the Court. Singley, O’Donnell, J., concurs in the concurring opinion result and filed a page 713 mfra. trilogy

This rounds involving Sunday out a of recent cases closing laws, George’s two in County, Prince in one Montgomery County. In Maryland, Giant Inc. v. State’s Attorney George’s County, 501, Prince 267 Md. A. 2d for 427, appeal dismissed, (1973) 412 U. S. 915 we held that the Sunday closing applicable George’s law County, to Prince Maryland (1957, Repl. Vol.) (b) Code Art. 534H 1-3 § permit did not exemption Giant to avail itself of the drugstores, bakeries, accorded delicatessens because although operated pharmacy, Giant a delicatessen and a bakery store, within general its its business was the sale of products. food case, Drug Corp. Hechinger Co., second Dart

Md. A. 2d 266 interpretation involved the of a Sunday closing law, (1957, similar Repl. Vol.) Code Art. applicable Montgomery County. 534J The same Hechinger Company (Hechinger) appellant which is the here had declaratory instituted an injunctive action for relief Montgomery against the Circuit Court for Dart Drug Corporation, Drug Fair, Peoples Drug Stores, Inc. and Inc., alleging that the stores, defendants’ which sold 67% of permitted same items sold to remain open Sunday, on Hechinger required while to be closed. case, In we found that the three defendants did not qualify statutory exemption for accorded “[d]rugstores whose drugs basic business is the sale of related items” because their basic business was not the sale drugs. order, We modified the trial court’s and affirmed enjoining modified a declaration and order restraining conducting the defendants from business on Sunday any regularly employed weekdays store on persons any more six than one shift. began

This case in June of 1973when Attorney the State’s petition filed a injunctive for against relief Hechinger George’s Circuit Court for Prince County, seeking to enforce Sunday closing the same law which had been at issue in Maryland, Giant Inc. Attorney v. State’s Prince for George’s County, supra, 267 Md. 501. From a granting decree injunctive relief, Hechinger appealed Special to the Court of Appeals which affirmed in Co. v. State’s George’s Prince County, App. 707, 19 Md. 313 A. 2d 715 granted We certiorari. (1957, Repl. Vol.)

Code Statute) Art. (the 534H§ provides here, part: which is at issue “(a) In except specifically in this section provided, otherwise it is Sunday unlawful on wholesale or retail establishment to conduct business for labor *3 profit in the usual manner and location or to operate its any establishment manner for the general public. cause, direct, shall permit, It not or any employee agent authorize engage or in or conduct Sunday.” business on its behalf on “(c) Nothing applies in this section to:

1. Farmers Nurserymen

2. (6) 3. Small business with not than more six persons any exception on one shift with the persons engaged or retailers in the sale motor vehicles.” Hechinger, which advertises “The World’s Most operates Unusual Lumber Yards” two stores in Prince George’s County: Heights one at Marlow and one at Prince George’s Center, Shopping Hyattsville. Plaza near In Dart Chapter July of the Laws effective 1974 amended 534H§ “Any (c) persons so that it now reads: with not than more six on Sunday exception persons engaged one shift on with retailers change (c) 3, A sale of motor vehicles.” similar was made in 534J Montgomery County. applicable to 18-19, Co., Hechinger supra, 272 Md. at Drug Corp. v. being “in company president his Hechinger’s described or, general business” lumber, merchandise hardware and being business.” alternatively, in the “home center Ross, of the Sergeant Robert R. morning Sunday,

police department, that on testified Hechinger store at Marlow 1973, he visited 3 June employees He found 75 customers Heights. some testimony he culled the items can be From Ross’ the store. materials, building They included: the store. saw for sale evergreen furniture, shrubbery, appliances, lawn tools, windows, door accessories, swimming pool machine washing iceboxes, supplies, frames, paint, hardware hibachis, machines, stoves, grills, charcoal, pic- barbecue bark, chemicals, insecticides, supplies, nic decorative fencing, fertilizers, tubs, boxes, pots, garden stones, flower tools, hoses, sweepers mowers, carts, hand lawn sprayers, spreaders, storage buildings, plastic pipe. In response question, that Ross estimated less than garden one was related fourth store devoted (as distinguished nursery stock, items from most of outside) displayed employ- was five or and that six were in that ees area. testimony, stipulated of Ross’

At conclusion was Hechinger’s Hyattsville store, open day, also that substantially only different. The other was not witness company’s president, John W. who testified for the defendant. company said sold some 220 items stock, including

growing evergreens, roses, flowering *4 shrubs, bedding plants; fruit annuals and employees years attended last 3 about had a course given Company Marysville, lawn M. care the O. Scott nursery Ohio, area most of and that the outside where occupied stock was sold an area about one third the size of Hechinger’s opinion approximately the store. It Mr. company’s his derived he 50% of sales were from what regarded nursery items, related which included barbecue grills, hibachis, birdhouses, chemicals, insecticides, charcoal, bark, stones, brick,

decorative fencing, fertilizers, flower tubs, boxes, fountains, pots, (metal furniture wood), and/or garden carts, gloves, grass catchers, shrubs, rosebushes, flats, bulbs, hammocks, tools, hand shovels, hoes, rakes, spades, weeders, forks, shears, pruners, clippers, loppers, trowels, hoses, sprinklers, nozzles, sprinkling cans, insect foggers, sweepers, patio stones, lawn blocks, peat moss, “all conditioners,” power tools, other soil saws, edgers, trimmers, tillers, grass seed, seed, vegetable flower plant seed, sprayers, spreaders, statuary, storage buildings, trellises, wheelbarrows, patio decking, plastic pipes, cement, sand, tile, creosote, drain and sod. examination,

On cross Mr. explained further by saying company’s answer that his sales are about equally divided between items used inside the house and items used outside the figures 'by house. No evidence of sales categories was introduced.

Hechinger challenges the result reached the trial court Special affirmed Appeals Court of ground on the posited that it was a on narrow definition of a as a place plant where propagated, life is with the natural consequence nurseryman, that a contemplation within the 27, (c) operator just Art. 534H 2 is the nursery.2 such a relying on determinations reached in the zoning law, Refining context of Anderson v. Humble Oil & Co., (1970); 226 Ga. 174 S.E.2d 415 Suburbia Gardens Nursery, Louis, Inc. v. (Mo. St. 377 S.W.2d 266 1964); Nurseries, Town Needham v. Inc., Winslow (1953) Nurseries, Mass. 111 N.E.2d 453 A. C. Inc. v. Brady, App. Div. 105 N.Y.S.2d 933 see 67 Nursery (1950, Supp. 1974), C.J.S. would have us hold that give scope we should a broader than did the chancellor or the Special Appeals nurseryman Court of to the term as used Dictionary English Language Webster’s New International (2d 1944) place trees, shrubs, ed. a defines where “[a] vines, etc., transplanting are or for' use as stocks for grafting; plantation young plants” nurseryman trees or other and a nursery.” applied by who conducts “[o]ne the older or cultivates This was the test cases, Nursery collected in 67 C.J.S. at 2-3

711 this, fully prepared will Although we to do it the Statute. are Hechinger, since our view a correct of little comfort to be below, regard for what we as the result was reached but wrong reason. construction, statutory

Turning question to the the General was last before should be noted that the Statute Chapters by 277 Assembly when it was amended By then, legislature must 1969.3 282 of the Laws of developed in the in mind situation which had have had Washington, where metropolitan areas of Baltimore plant customarily for sale many nurserymen offered elsewhere, propagated and raised material which had been day by It is too late the seller or others. either argue exemption extended the Statute only by propagator and nurserymen may be availed materials, be plant the Statute must grower of since usages existing light at the of customs construed amendment, v. Town Needham time of its enactment or Mass, Nurseries, Inc., supra, 111 N.E.2d Winslow 330 at 455-56; Loyola College, 316, 328, at Williams v. 257 Md. cf. Sands, Statutory (1970); 2A Sutherland 263 A. 2d C. 47.28, (4th 1973). 141-42 ed. Construction § however, concession, Even affords no solace to this us, Hechinger, can no because on the facts before ranging regarded nurseryman wide as a than the more be regarded Drug operations of Food or could be Giant Dart purposes Sunday closing drugstore, for those of a Hechinger clearly may shows that while laws.4 record wide lumberyard, its is that of a seller of a not be a apply range general Even if we Mr. merchandise. Hechinger’s amorphous it is somewhat inside/outside test home, products by his sold for use outside the clear definition, plant materials and include much more than — fertilizers, insecticides, nursery related items such course, Chapter 1974 which became Excepting, of the Laws of long instituted. case had been after this effective Maryland 4. See Giant of v. State’s (1973); Dart dismissed, 427, appeal U. S. A. 2d 267 Md. 15, 320 Co., A. 2d Corp. 272 Md. Drug soil, moss, mulch, potting pots, seeds, bulbs, peat house tools, like, and the plants, hand all of small which are Washington *6 customarily nurseries sold Nurseries, Needham metropolitan area. Town v. Winslow of relies, Inc., supra, recognized at 101-02 on which Mass, 111 N.E.2d and at of that stock of not by nursery, grown premises may sold a but held on the be “fungicides, insecticides, that sales of items other than humus, mulches, chemicals, peat moss, and fertilizers” were permitted operation nursery, a a use to the of not incidental in an area zoned residential. See also Suburbia Gardens Nursery, Louis, supra, Inc. v. St. 377 S.W.2d at of may 272-73. Difficult it be as on the record before Hechinger’s principal business, us to characterize which may center, store, well be that of a home a hardware of of appliance store, dealer, certainly an a or of retail lumber it is nursery. not that of

There were photographs introduced in evidence of other nursery operations which, according Mr.

open Sunday. adjuncts department Two of them were stores, which were otherwise closed. A third was at a store, seemingly operated hardware with six or fewer employees. nursery which, Another was a as far as we could photographs, only ascertain from the sold related items.

Hechinger’s second contention is that the Statute is so vague, ambiguous, insusceptible uncertain and of definition process. recognized as to amount to a denial of due We have process only vague that due is violated when a statute is so persons ordinary intelligence necessarily guess must meaning its and differ application, as to its MacLeod v. Park, City 477, 481, Takoma 257 Md. A. 2d (1970). compelling answer to this contention is that the argument regards same was made the same statute George’s Maryland Attorney Giant v. State’s Prince supra, 514-15, County, 267 Md. at where we said: imperfect drafting “But the does not 534H § compel holding vague the statute is sense, urged by indefinite in a constitutional contrary, bearing Giant. On mind that penal statute, that, written, 534H is a we think it sufficiently explicit person to enable a ordinary intelligence degree with ascertain a fair precision prohibits what it and what conduct on part will him penalties; render liable to its not, therefore, does affront the constitutional guarantees process.” of due

See also Rebe v. State’s 262 Md. 277 A. 2d 616 regard right Because we the result reached below as the one, we shall affirm.

Judgment affirmed; stay order vacated; paid by costs to be *7 appellant.

O’Donnell, J., concurring:

I by majority, concur with the result reached the I but grant injunctive upon would sustain the relief the more ground appellant, Hechinger Company, restricted that the is exception not Maryland within the set forth in the Code (1957, Vol.), Repl. 27, (c) 1971 H (2), Art. 534 in that none of § by brings the merchandise sold it within the definition of a “nurseryman” as term I that is known and defined. cannot concur that in when Assembly the General enacted that section, breaking” nor in 1969 when the “Sabbath statute it, legislature was last before that the “must have had in developed metropolitan mind the in situation which had the Washington, many areas of Baltimore where nurserymen customarily plant offered for sale material elsewhere, by which had been and raised either by the seller or I others.” Nor do concur with the view that day argue exemption in is too late the that the

“[i]t by nurserymen may extended the Statute to be availed of only by propagator grower plant the materials.” majority suggest

What if seems to is that appellant selling upon premises baled, at retail balled — bushes, plants though potted trees, and flowers

or propagator purchased wholesale elsewhere from the — only plant as well grower materials and sells of such items, appellant thus be a nursery-related would exemption The “nurseryman” in the statute. and within adjunct retail majority then concludes that because non-nursery-related items and a by appellant of sales merchandise, operator of a range general it is not the wide nursery. exemption appears kindred The first reference to such — Vol.) 27, (b) (1957, Repl. Art. the Code § — the Acts of 1959 of Ch. 811 of

codification Sunday in Anne Arundel permitted on the sale together with flowers and shrubs” “artificial and natural (f) in the specified merchandise. Subsection limited other — 236 of the Acts of a codification Ch. same section — breaking” excepted application of the “Sabbath from the Allegany County retail operation in of certain statute among or establishments, which were “nurseries included vending plants, stands shops selling or roadside flowers ” — provided vegetables plants selling fruits, and flowers open during time such establishment the entire (3) persons employed or Sunday, three not more than supplied.) working. (Emphasis H issue, in Art. exception here set forth The § George’s County, was enacted (c), applicable subsection, identical 421 the Acts of 1968. same Ch. (c), J as Art. content and codified form and Montgomery was enacted Ch. 630of applicable to exceptions, Art. The same now codified as the Acts of 1968. (c), 686 of the Acts of 534L was enacted Ch. *8 § year by County. following The Ch. applicable to Baltimore Assembly 1969, enacted the General of the Acts of 764 27, (c), M for exceptions, as Art. now codified identical § and Wicomico Counties. Harford 1973, 343, of the Acts of By Chapters 681 and 718 (c), 27, H in Art. provisions as are contained identical § respectively Anne applicable similarly as enacted 27, Washington (Art. 534N), Arundel and Calvert Counties § 27, County (Art. 5340), County 27, and (Art. Frederick § § By 534Q). comparison, Ch. 744 of the Acts of codified 534R, in (c)(3)exempts as “types subsection as of business” § “agricultural including florists, activities nurserymen and farmers, fishing” County.1 and commercial Harford respective

Each of provides those sections Art. 27 (b) subsection thereof:

“Notwithstanding any provision section, of this operation following types of of retail Sunday: establishments is allowed on Drug principal 1. stores whose is the business drugs sale and related items. principal

2. Delicatessens whose business is the sale delicatessen and food related items. bakeshops.

3. Bakeries and principal 4. Gasoline stations whose business is gasoline, oil, sale and other automobile maintenance items.” majority, by interpretation “nurserymen,” their have effect added an additional classification to (b) 27, 534H, subsection in Art. which in effect would read § principal “Stores whose shrubs, sale plants flowers, and nursery-related and items.” Such exemption classification and was not created the General Assembly; rather it chose to use the limited term “nurserymen.” exempted It could have shops “Nurseries or selling plants,” flowers and as was done Ch. 811 of the Acts of for Anne Arundel but it did not. When “nurserymen” classification respective was used in the applicable statutes to the various counties that word had a plain meaning definite limited, and and such is as the 1. Ch. of the Acts of 1973 re-enacted 534M for Wicomico § County; eliminated all references in that section Harford enacted section, applicable solely County. new 534R Harford § 534M, (b) N Art. include within subsection §§ Q “Restaurants, grills bars,” 534L, and snack as amended as does Ch. § (for Washington County) Acts of 1973. includes Art. (b) (5), “Restaurants, parlors, bars within subsection ice cream snack grills,” (6), “Antique shops.” adds *9 “ recognizes, to a majority who conducts or ‘[o]ne cultivates ”

nursery,’ according to the dictionary definitions, a nursery place “is a shrubs, where plants, forth, and so are from seed or transplanting, otherwise for use as grafting stock for and for sale.”3 See Piekos v. Bachand, 333 Mass. 129 N.E.2d 890 quoting with approval that same definition set in Town forth Needham Nurseries, Inc., Winslow Mass. N.E.2d 453 (1953).See also Suburbia Gardens Nursery, Inc. v. Louis, St. (Mo. 1964); S.W.2d 266 Nursery C.J.S. (1950, Supp. 1974); and 58 Occupations, Am.Jur.2d Trades (1971) (concerning regulation Professions “nurserymen”). — experience with J.) little (Bowen, of no The Chancellor — appellant was not holding that

agronomy succinctly stated: “nurseryman,” who conducts nurseryman one is definition “A talking about nursery, . . . we are but operates a or That, we agricultural sense. in the here nurseryman glean because think, not difficult is statutory farmers, [by right after follows one, so if the first which is arrangement] arrangement we by the nothing statute else nursery in the talking they are about apprehend opposed to applies agriculture as as it sense dictionary. nursery you find in the kind of other operation which by definition an is Now material, plant propagation of itself with concerns forms of animal of certain propagation with or that is of fact that a matter hold as life. We statute, none other by the intended definition statute; as a that offered having been exact precise susceptible fact matter defendant’s therefore definition makes the statute section this argument Opinion, Majority n. 2. 3. See vagueness lack of

unconstitutional certainty definiteness or must fail. contention, . With this Com-

. . [that *10 “nurseryman”] gentlemen, we are un- pany is a agree in view the the the Court takes of able to operation makes critical which matter the operator something and the a part operation is nurseryman is that of the which nursery, is not the definition of and that critical to products of selling at retail or wholesale of the the propagation but the of the material propagation It is which makes an which is sold. opposed

operation nursery as to the distribution in or transfer to the the world of commerce place in the market of the consumer ultimate nursery. products Now this record is devoid of the propagates any evidence that the defendant goods green in anything that he sells either department department seed or or the live, products which he sells. As a matter material fact, he the evidence would indicate that does not testimony he in his is that must maintain because origin plants stores certificates of for those regulation are sensitive and fall within the which various, governmental agencies promulgated by the live, regulate the sale and distribution of plant material, agriculture products and related items. It make if one can would as much sense argue say he with oneself to is a fertilizer fertilizer, in he sells or he is manufacturer because agri-chemical he sells the business because products and others who manufacture of Ortho chemicals, in these or that he is the cattle business he sells cow manure. Nor is he because fact, a tree business virtue of that lumber mill, farmer, foundry in or a saw casting go garden because he sells ornamental gates. ...” Gilbert,

Judge opinion delivered the for the Court of who Special affirming grant Appeals4 injunctive relief, in Court, reached the same conclusion. For the he stated: appellant “In this Court the argues that it ‘offers growing more than 220 varieties of public stock for purchase. And common sense us in tells order growing such . [appellant] stock items . . would have water plants and fertilize the periodically,’ ‘good order healthy to sell merchandise.’ Appellant quoted utilizes the statement as a premise upon grounds which it a conclusion that because it plants fertilizes waters in order to them, sell ‘raising’ plants is the business of nurseryman. sale and thus ais adopt We decline to appellant’s reasoning. line of ‘nurseryman’ The word defined Webster’s *11 Third Dictionary English New International the of Language (unabr. 1967) as, ed. ‘one whose occupation trees, is the scientific cultivation of plants.’ shrubs and definitions are found [Similar Wagnall’s Funk and College Standard Dictionary, Text (1963); Edition The American Heritage Dictionary English Language the (1969); Nursery 67 (1950).] C.J.S. 3 A is defined the same source to mean ‘an area where trees, plants grown shrubs or are for transplanting, for budding use as stocks for grafting, and or for sale.’ Nurseries, In Town Needham v. Winslow 330 95, 100, 111

Mass. N.E.2d 456 the Supreme Judicial Court of Massachusetts said:

‘According dictionary definition a place shrubs, is a where plants, and so forth, are from seed or otherwise transplanting, grafting, for for use as stock for and for sale. See Miethke v. Pierce 173 4. Company Attorney George’s County, v. State’s for Prince App. 707, 19 Md. A. 2d [(1933)]; 23 P. 2d Wash. Judges, 38 Cal. v. State Board General Met.) Baker, (1Mass. [(1869)];Miller v. [42 (1 Walker,

27 (1840)]; Mass. Whitmarsh v. [42 Met.) (1840)]; Assessors Paine Board Weston, 7 N.E.2d 584 297 Mass. Town of ” 710-11, at App. at 313 A. 2d [(1937)].’ 19 Md. stated for the Court:

He further appellant employees of the water “That the part plants are shrubs that fertilize the place view the appellant’s inventory, does not our definition of appellant within ambit of the the nurserymen. conducting a retail appellant

We think ordinarily and not, is as the word business Ergo, appellant used, nursery. is not a naturally adopt argument nurseryman. If were to we appellant effect urged upon we would in us nurseryman every bona authorize fide engage retail in a appellant. that of enterprise similar guise then, their Nurserymen could under the sell, Sunday, exemption, statutory undertake to sundry items offered sale diverse appellant. 27, 534H nurserymen in art. as used

The word contrary vagueness, on the (c) void but 2 is not 711-12, App. .” Md. clearly . . definitive. *12 718. 313A. 2d at special class of views. was a

I with these It concur quite enterprise legislature undertook which the commercial Assembly did not intend limitedly exempt; General plants, purchases enterprise which exempt every business “nurserymen” wholesale flowers, etc., shrubbery, from Sunday these horticultural to sell then undertakes on and word general public. use of products at retail (c) (1) “farmers” in subsection and the use term juxtaposition by “nurserymen” legislative arrangement (c) (2) suggest subsection would that the Assembly General encompass classify together grow intended to and those who propagate agricultural products grow with those who — propagate products horticultural not those retail nursery products grown sellers of such elsewhere.

ARTHUR & OF TREACHER’S FISH CHIPS

FAIRFAX, INC. et al. v. CHILLUM TER-

RACE LIMITED PARTNERSHIP 4, September Term,

[No. 1974.] Decided November