*2 WARREN, HOYT, Before DUGGANand JJ.
OPINION WARREN, Justice.
This case involves the article 9001 of Texas Revised Civil Stat- utes, commonly called the Texas “Blue pre- Law.” The Texas Court has viously facially held the statute constitu- against tional contentions additionally similar to those lant contends that the trial by appellees made in this case. The trial court’s of fact were irrelevant to however, court, found that it was not legal issues in the Appellant case. previous bound decisions because refers this court to numerous Texas deci- the records before those courts were upholding sions the statute. fully developed. The court held the below Appellee responds that article 9001 vio- *3 statute appel- unconstitutional and refused process equal protection lates due pro- and application permanently enjoin ap- lant’s amendment, visions of the fourteenth that pellees violating from the statute. Our the unconstitutionally vague, statute is question main appeal on is thus whether provisions making that the of the statute the evidence adduced at trial established a nuisance are unconstitutional because the the statute is unconstitutional. We sale of certain merchandise on consecutive hold that the evidence failed to establish Saturdays Sundays and is not harmful to the unconstitutionality statute’s and there- public pub- health and welfare and not a fore reverse and remand for for en- cause nuisance, lic and that the trial court’s find- try permanently enjoining ap- of an order ings binding of fact are this on court since pellee violating from article 9001. appellant challenge appeal. did not them on Appellant incorporated is an trade associ- cross-points, its claims the trial engaged ation whose members are retail- holding court erred that the selective ing. Appellee selling is a chain retailer discriminatory and enforcement of the stat- mainly hardware, materials, tools, building clause, equal protection ute violates the supplies. and A large percentage of the that the statute violates the Texas Consti- goods appellee may offers for sale not le- tution, proof that the lack statute’s re- gally on Saturday be sold both a and Sun- (that quirements a defendant’s act was a day of the same prohi- week because of the nuisance) clause, process violates the due bitions of article 9001. the statute violates interstate
Article 9001 forbids the sale of various Finally, appellee commerce clause. con- Saturdays items on consecutive and Sun- by prior tends that we are not bound deci- days. punishment The statute authorizes Supreme sions of the Texas Court because up a fine for the first offense $100 accompanied by fully those cases were not larger subsequent and a fine for offenses. developed records and social and because It also declares that the violation of the act changes economic since the enactment of public any person is a nuisance and allows provision the statute render unconstitu- injunctive to obtain relief to restrain a vio- tional. excepts lation of the act. The law sales for The first of Texas deci- Court charitable, purposes, funeral or burial analyzing constitutionality sion conjunction items sold in real proper- Industries, Spartan’s Blue Law is State v. ty- Inc., (Tex.1969), appeal 447 407 violating admits the statute dism’d, 590, 1359, 90 S.Ct. 25 allowing employees its to sell listed items 596 The court in L.Ed.2d Saturdays in the statute on consecutive 286a, held that article Industries Sundays during November 1983. (the predecessor to article Penal Code 9001), reasonably public was related to the error, points appellant In six related welfare, deny per- that the statute did not contends that the trial court in con- erred selling equal pro- prohibited sons items cluding that article 9001 violated the four- law, that the statute tection of was teenth amendment of the United States indefinite, vague legisla- and that if the Constitution, by pre- that it was not bound act, it may prohibit may ture an upholding vious Texas Blue Law decisions .authorize statute, injunction against The court that act. changes and that conditions the rule that a court since the statute’s enactment caused the also restated only if Appel- statute to declare a statute unconstitutional become unconstitutional.
47 legit- validity arbitrarily precedent the statute interferes with force as and the of a activity previously upheld imate such a manner as to have under constitu general no reasonable relation to the People wel- tional attack. v. Acme Mar See kets, Inc., fare. 372 37 N.Y.2d N.Y.S.2d (1975)(fully developed 334 N.E.2d State, Gibson Products Co. v. record); Nashville, Ry. C. & St. L. v. Wal (Tex.1976), denied, S.W.2d 128 cert. 405, 415, 486, 488, ters, 294 U.S. S.Ct. 53 L.Ed.2d (1935) (changed L.Ed. 949 factual condi (1977), the court considered an attack tions). static, society The law is not against constitutionality of article changes demands our attentiveness to alleging appellants that the statute denied Nevertheless, environment. as human equal protection principle, appellee a constitutional retains court, law. The with three members dis- establishing the burden of that the statute senting, reaffirmed the is unconstitutional under the established the Blue previous Law and noted its deci- *4 judicial standards of review. We must in Spartan’s sion Industries. therefore determine whether the evidence Distributing Gibson Co. Down- presented in the trial court the shows that Development town Association El of the violates Texas United States Paso, Inc., (Tex.), appeal Constitution. dism’d, hearing temporary injunc- At the on the (1978), Greenhill, L.Ed.2d 674 Chief Justice tion, appellee’s the director of stores testi- court, writing for a unanimous followed the difficulty complying fied that his firm had in previous decisions the two cases and inability with article 9001 because of his to considered the of the stat- products determine what fall within the again ute settled. The court held that the proscription, compliance statute’s and that deny equal statute did not protection or in costly with the Blue Law is terms of lost appellants additionally to and business. preempted held that the law was by Sherman Anti-Trust Act and did not consti- Appellee provided testimony also of illegal
tute an restraint on trade. expert several witnesses. Professor Wil- Texas, University M. bur Cohen of the
Appellee acknowledges holdings formerly Secretary of the United States Industries, Products, Gibson Health, Department Education, and Wel- and Distributing, Gibson but insists that fare, perceive concluded that he could neither the trial court nor this court relationship rational between the statute’s bound those decisions because in each of proscriptions and the health and welfare of appeals those cases the directly were taken from the trial court of Texas. to the Texas provisions Court under the of article 1738a Moore-Ede, Christopher pro- Dr. Martin Statutes, of the Texas Revised Civil and School, fessor at Harvard Medical testified accompanied by developed were not factual although the Blue Law was aimed at hand, Appellee, records. on the other ad- promoting goals, desirable social it is a trial, duced evidence at considerable includ- “clumsy, inequitable, way and archaic opinions reports prepared various and Moore-Ede, achieving goals.” Dr. an by experts relating to the effect of the authority adaptation twenty- on human Texans, fully Blue Law on in order to de- day/night cycles, four hour also testified velop demonstrating a record the unconsti- positive he could “net while find no tutionality of the Blue Law. welfare, health, effect” of the statute on recreation, perceive nega- he did a “net agree, general proposition, We as a effect,” including possible presented that the amount of tive increases evidence a case, prior changes pollution, possible the extent increases in stress members, society among family inequities since a statute’s enactment or the decision, households, career/wage-earner date of the affect a decision’s two stu- dents, and households headed working health welfare of Texans. Dr. Lucas mothers. Dr. Moore-Ede admitted that he did express opinion as to the rela- performed had no scientific study of the tionship between the goal statute and its effects of the Blue Law on Texans and that providing day of rest for the citizens of he had prior reached his gath- conclusion the state. ering “documentation” relationship on the considering After expert testimony between the statute and the welfare of presented, other evidence the trial Texans. court temporary issued a injunction against deposition also offered the testi- appellee and set the cause for trial on the mony Wooton, of Dr. Leland Associate Pro- permanent injunction. By stipulation, all Organizational fessor of Behavior at South- evidence produced at the temporary injunc- ern University Methodist Business School. tion hearing was carried forward to the Dr. Wooton only percent concluded that 3.6 permanent trial on injunction. Addi- employees the total number of in Texas tionally, appellee called various retailers to employed by selling businesses items testify regarding increasing importance regulated by the statute. Sunday sales to their businesses and to Dr. Wooton also identified various trends consumers and difficulty of complying affecting operation of the Blue Law. with the statute allegedly because of its He increasing noted that an number of vague list of items. part-time workers results fewer full-time cross-examination, many On employees wit- working on the weekends and *5 nesses admitted their importance economic interest in of the Blue Law providing day Also, a of rest to outcome of the many full-time workers trial. wit- diminished; has been buying trends nesses admitted that dictionary definitions development indicate of an “unbalanced goods of listed in article 9001 were both shopping pattern,” shifting emphasis of sensible unambiguous. shopping weekends; time to pro- and that rebuttal, In appellant testimony offered duction trends indicate a shift to a service- Rivers, of a retailer Jr., and of Dr. Norfleet oriented economy where productivity is en- expert in demographic and market re- by hanced weekend Finally, work. Dr. search. Dr. prepared critiques Rives Wooton noted a trend in retail diversifica- analyses prepared by appellee’s experts, tion and emergence “super of stores” Drs. Wooton and Moore-Ede. Dr. Rives selling variety a wide regulated of both survey noted that Wooton’s and statistics unregulated goods. potentially large a group omitted of retail- Additionally, Dr. Wooton directed the scope: ers from its retail firms of one to preparation survey, of a which admit- was employees (comprising four as much as for- evidence, regarding ted into employ- ty-seven percent sector). of the Texas retail practices. survey, ment From the Dr. Lucas, Like Dr. Dr. Rives attacked the Wooton concluded that there was no statis- methodology survey by directed Dr. tically relationship giv- relevant a between Wooton, noting sample that the unrep- was provide en firm’s choice of whether to a resentative, questions that certain elicited day employees of rest to and whether it potentially responses, biased and that no regulated unregulated goods. sold provided definitions were for terms used rebuttal, appellant offered the testi- questionnaire. Dr. Rives concluded for Lucas, mony George Jr., of pro- assistant various reasons that the Wooton and University fessor at Texas A & M in the findings wholly Moore-Ede were without Department Marketing. of Dr. Lucas con- validity. scientific survey cluded that Dr. Wooton’s had “seri- evidence, reviewing After the trial methodological problems,” ous and that it following court reliability analysis had little as a scientific made of the effects of the Texas Blue Law on the fact: imprecision
1. the total Of Texas work force of 15. The of those classifi- 7,821,000 impossible many cations makes it people, about are em- 14% merchants to know whether their mer- ployed by retail establishments. chandising comply Article 9001. will Approximately people 2. 25% 16. Merchandise classifications of Ar- employed by retail establishments are distinguish ticle 9001 between items that regu- with firms which sell merchandise identical, essentially making are the sale by lated Art. 9001 Tex.Rev.Civ.Stat. illegal of some without rational rela- (“Article Law”). 9001” or the “Blue purposes tion to the actual or stated 1984, 281,350 3. in Texas the act. employed by selling were businesses 17. Substantial social and economic regulated merchandise under Article changes occurred in have Texas since 9001. Article 9001 was enacted in 1961. regulated by 4. The items Article enacted, 18. When Article 9001 was 9001 are therefore sold less than four patterns patterns some work of fam- percent Texas work force. ily organization they different were than selling 5. Those businesses merchan- today. are regulated by dise Article are rate, 19. The increased divorce required Saturday to close on either large entering number women Sunday. force, consequent growth work and the Many regu- 6. are businesses which dual career all number of families open lated the Blue Law are in fact changed practices have the fundamental days seven a week. family structure that were uncontest- Among selling the retail busineses assumptions ed when Article 9001 was regulated by no merchandise the Blue enacted. Law, almost open one-third are for busi- larger percentage A20. of families ness on Saturdays consecutive and Sun- today wage have two or more earners days. than in 1961. 8. The Blue Law does achieve percentage 21. The males who *6 day uniform of rest for the workers of employed married and has decreased Texas. since 1968. 9. The Blue Law does not achieve a solely 22. More women are now re- day uniform of rest for the retail work- maintaining sponsible for their families ers of Texas. financially than in 1961. employers, 10. That almost all irre- 23. has been an increase of the There spective they of whether sell merchan- entry into the work force of mothers regulated by provide dise Article young children. employees their day with a of rest. 24. certain The restriction of items 11. That the Blue Law is not Saturdays on for sale successive cause of most workers in Texas achiev- Sundays an inconvenience causes to day at least one of rest. many prospective purchasers in Texas. 12. Merchandise classifications of Ar- fifty percent people 25. of those Over relationship ticle 9001 no to the bear employed part- in the retail sector work day achievement of a of rest for workers time. in each week Texas. provides particular- 26. Retail trade a relationship
13. There is no between ly important people source of income for health, Article 9001 and the recreation part-time, especially women. who work of the of the and welfare State important shopping 27. Weekend is Texas. avoiding many retail businesses in regulated by capac- 14. drop productivity The classifications of in caused idle imprecise. ity. items under Article 9001 are businesses, Sunday developed any in many completely
28. For is productive day of the prior in fact the most cases. week. A2. statute that is constitutional Productivity 29. concerns have also unconstitu- when enacted become expand merchan- caused retailers to their by change a in the conditions to tional dise assortment. applied. which it is strategy The mer- 30. scrambled 3. Article 9001 violates the Four- chandising product diversification now teenth the Constitution of Amendment to specialty used practiced even stores is the United States because classifica- it widely more the retail sector than imposes any tions it do not bear rational inwas 1961. relationship legitimate to the state inter- significant relation- 31. There is little achieving day est of a common of rest ship type of merchandise between for the workers of Texas under actu- sold a retail establishment and a re- applied. al facts to which it is open tailer’s decision to be on both Satur- the Four- 4. Article 9001 violates day Sunday. teenth Amendment to Constitution City 32. Neither the of Houston nor the United States because bears currently enforcing Ar- County Harris is relationship actual or ar- rational 9001, although and coun- ticle some cities legitimate interest. ticulated state currently ties the State of Texas the Four- 5. Article 9001 violates enforcing Blue Law. teenth Amendment to the Constitution Enforcement of Article 9001 33. possi- it is not the United States because by private County Harris is carried out person for a to know advance ble groups.
interest proposed conduct will later whether his 34. There are no hardware stores illegal. be held to have been improvement among the home stores permits Legislature 6. Because of the Retail Merchants Associ- members private enforcement of a nuisance and (the “Association”). ation presumption of creates an irrebuttable 35. of the Association’s own Several nuisance, irrespec- the existence of that currently violating Article members are facts, the defendant of the actual tive opportunity to defend deprived of an has not filed suit 36. The Association deprived of its of nuisance and claim against any its for viola- one of members rights under the Fourteenth tions of Article 9001. Constitution Amendment to the purpose in 37. The Association’s United States. competi- bringing prevent suit is to this not reach the issue 7. This Court does selling merchan- advantage tive *7 the Blue Law is unconstitu- of whether days a dise seven week. the Constitution of the State tional under regulated by of merchandise Sale of Texas. Saturdays Article 9001 on consecutive Sundays any does not have discerni- enforcement scheme private 8. The health, upon the wel- harmful effect ble in by Article 9001 does not contemplated a com- in fare or comfort Amendment itself violate Fourteenth munity in this State. States, of the United to the Constitution 3, I, 19, or both Article Section Section or addition, the follow- the court issued of the State of the Constitution [sic] ing conclusions of law: Texas. by earlier is not 1.This Court bound Blue Law operation of the 9. The the State of of the courts of decisions interstate commerce does not affect constitutionality un- upholding the man- constitutionally objectionable any States of the United der the Constitution Law, ner. the record was of the Blue since by contends that we are bound statute was perfectly efficient ac- by of fact made complishing day the trial court a possible of rest and that appellant negative
because has not specifically at- effects Finally, were observed. tacked findings. the court’s individual Dr. study, though perhaps As Wooton’s meth- noted, previously however, flawed, odologically duty actually our in re- indicated viewing some provision level of effectiveness the statute in a closing is to party determine whether the down retail businesses on week- challeng- ing Revco, D.S., Inc., ends. the enactment See State v. has carried its burden 219, 1984, 221 (Tex.App.—Dallas under applicable no standard of review. writ). We thus turn to the challenges various by appellee.
asserted Thus, while the means chosen
legislature
inactivity
to secure commercial
SUBSTANTIVE DUE PROCESS AND
on the weekends
operate
indeed
“im-
EQUAL PROTECTION
perfectly
incompletely”
since some mer-
stay open
chants
all
regardless
week
regard the standard of review in
We
Law,
imperfections
Blue
do not rise to
causes such as this to be different from
essentially
level of an
arbitrary or dis-
applied
involving
cases
fundamental
criminatory
Moreover,
burden.
even
rights.
rights
Fundamental
or interests
though there is
“inequality
some
in the
guaranteed
those
Rights
the Bill of
economic
engineer-
burden of such social
of the United States Constitution or are in
ing,”
may impact
since the statute
adverse-
some
constitution,
manner traceable to the
women,
ly on
part-time
some
student
work-
or those that the
preserva
court feels are
ers,
consumers,
busy
the end of reduc-
tive of other basic civil
political rights.
activity
commercial
is not invalidated.
Shapiro
Thompson,
See
v.
394 U.S.
Robbins,
parte
See Ex
661 S.W.2d
1322, 22
(1969);
S.Ct.
L.Ed.2d 600
Harper
(Tex.App.—El
1983, writ). Finally,
Paso
Virginia
Elections,
State Board
while
society
demonstrated that
Review of the record demonstrates that
VAGUENESS
Mr. Cohen’s testimony was not based on
analysis
substantive
of the statute.
The trial court also
that
found
arti
merely
Dr. Moore-Ede
vague
concluded that the
cle
unconstitutionally
9001 was
un-
amendment,
First,
testimony
appellee’s wit-
it
der the fourteenth
“because
trial did demonstrate the exist-
in
nesses at
possible
person
for a
to know
not
potentially conflicting definitions of
ence of
proposed
his
conduct will
advance whether
in
statute and that
some items listed
illegal.”
to have
As
later be held
been
introduced since
products
new
have been
equal protection,
process and
with due
cross-exami-
the statute’s enactment. On
rejected sim-
numerous Texas courts have
however,
nation,
many
appellee’s retailer
arguments.
ilar
agreed with various common
witnesses
Industries,
the Texas Su-
Spartan’s
of items contained
sense definitions
preme
rejected
argument
that
Court
dictionary.
average
one’s
prohibi-
process
violated due
article 9001
Moreover,
ruled un-
the Arkansas statute
provi-
against vague and indefinite
tions
vague Im-
constitutionally
Handy Dan
sions and concluded:
Center,
distinguish-
was held
provement
[Virtually all of these terms are com-
able from the Texas statute Michelle
will be understood
mon words which
Corp.
Retailers Association.
v. El Paso
marginal
ques-
If a
any merchant.
There the court wrote:
ap-
posed for the
tionable case could be
distinguishable
find
statute
We
our
“hardware,” for
plication
the word
in Handy
from that struck down
Dan.
example,
ground
be no
this would
descriptive
the fourteen
While some of
legislative enactment.
vitiating an entire
stat-
phrasings utilized in
Arkansas
[the
(citations omitted).
at 413
S.W.2d
the same or similar to those
ute]
our
appearing in Article
Sec.
Vagueness
have also been raised
attacks
categories
presents forty three
statute
court cases.
rejected
appeals
in several
merchandise,
greater
proscribed
Corp. v. El Paso Retailers
See Michelle
specificity.
Association,
(Tex.App.
TIVE ENFORCEMENT Appellee by cross-point Finally, appellee asserts that in its argues fourth trial holding court erred of the cross-point that that enforcement subject was the of selective enforcement in imposes unconstitutional “Blue Law” “an violation of the United States and Texas impairment Ap- of interstate commerce.” Assuming Constitutions. has pellee contends that manufacturers outside standing claim, to assert this it to we view goods within the state the state cannot sell be without merit. Sunday, result, on and as a interstate com impaired. merce will be
Appellee contends that enforcement County the Blue Law in Harris been has authority for the novel Appellee cites no private groups, surrendered to interest nature, proposition that a statute of this appellant, enjoin as that seek to com- such equal to Texas and applying force allowing petitors while their own members producers selling goods in Tex- out-of-state continue to violate statute. as, clause violates interstate commerce urges private this selective enforce- United States Constitution. Cf. is in ment constitutes “state action” and Inc., Assoc., 125 Vt. Rockdale State v. equal protection violation clauses (exemption produc- for local 218 A.2d the federal and state constitutions. allowing Sunday ers sales where out-of- Sunday producers sell on pro- state could not The fourteenth amendment does not unconstitutional). Clearly, a state discriminating held purely private hibit actions commerce, persons. Only regulation affecting against similarly situated interstate *10 54
assuming
many findings
promulgated by
such a
of
arguendo that ours is
fact
upheld
provision,
regulation
will be
if the
is
Appellee argues
trial court.
these
end,
to a
rationally
legitimate
related
state
findings
binding
are
us in our review of
on
outweighed
regulatory
and the
is
burden
constitutionality
the Blue Law since
of
Tribe,
by that state interest.
L.
Amer
See
Ap-
they
unchallenged by appellant.
were
(1978). Un
ican Constitutional Law 326
pellee further contends that
this court
conducted,
analysis
arti
previously
der the
only
have considered
evidence
“should
[its]
cle 9001 does not violate the interstate com
and construed all inferences in
favor.”
[its]
merce clause.
appellee
Finally,
contends that this court
reviewing
sufficiency
erred
of the
CONCLUSION
point
assigned
on
evidence when
was
There is little
the Texas Blue
doubt that
appeal.
unpopular
and
As the Tex-
Law
archaic.
In-
Supreme
as
Court noted
Restated,
in re
obligation
our
however,
dustries,
not our task to
viewing
aof
statute
legisla-
judge
popularity
the wisdom or
of
process
equal protection
under the due
and
cogni-
provision. We
also be
tive
should
principle
judicial review
zant of the
of
provisions of
United States
Vornado,
77
Hyland,
enunciated in
Inc. v.
any
is to
whether
determine
Constitutions
(1978), appeal
A.2d
N.J.
reasonably
relationship can
be
rational
dism’d,
99 S.Ct.
purpose
between the statute’s
conceived
Vomado,
(1979).
L.Ed.2d 84
the New
means.
local economic
and its
interme
Jersey Supreme Court reversed an
only wholly arbitrary
will
sphere,
acts
be
of a
appellate
diate
court’s invalidation
as violative of due
invalidated
analogous to
Texas Blue Law
protection. City New
v.
equal
Orleans
of
and concluded:
Dukes,
297, 303-04,
96 S.Ct.
obligation
paramount
have the
Courts
2516-17, 49
As the
L.Ed.2d 511
merely
legislation
not to invalidate
be-
of the United States
members
policy;
they disapprove
public
its
cause
of
wrote:
Court
do
is to
yield
impulse
to the
to
so
inter-relationship
subvert
the sensitive
super-
as a
judiciary may not sit
[T]he
govern-
three
between the
branches
desire-
judge
the wisdom or
legislature
at
of our form of
ment which is
the heart
legislative policy
determina-
ability
democracy.
neither affect
tions made
areas that
ex rel.
OPINION “Findings Fact” are in court’s lower REHEARING Law” and are actuality “Conclusions of PER CURIAM. applicable to rules reviewable under thus See, Finding Fact Num e.g., cases. all appellee con- rehearing, In its motion (“There rela- rational supra is no by ignoring the court ber that this erred tends tionship powers legislature poli- between Article 9001 and the to formulate health, cy. recreation welfare *11 Texas”). event, any of the State Appellee’s rehearing motion for is over-
where the constitutional issues involved are ruled. inextricably intertwined with the trial findings, proper court’s consideration of requires issues review entire Kansas, record. Fiske v. State 274 Cf. 380, 385-86, 655, 656-57,
U.S. 47 S.Ct. 71 (1926);
L.Ed.2d 1108
Northern
R.
Pacific
Dakota,
585, 593,
v. North
429, 432,
(1915) (where
S.Ct.
L.Ed. 735
CRIDER,
Randy
Appellant,
constitutionality of state statute is attacked
v.
reviewing
obligated
court
to review facts
they
“intermingled”
when
with conclu-
Byron APPELT,
al., Appellees.
et
law).
sion of
See also State ex rel. Guste
No. 14376.
Corp.,
(La.1985)
v. K-Mart
detailed review of evidence unconstitu- Law).
tionality Jersey of New Blue Our not, however,
review should include an
evaluation the credibility of witnesses
since the trier of fact sole judge is the
credibility of witnesses. County Harris v.
Hall, 141 Tex. 172 S.W.2d
(1943); Dunlap, Cobb 656 S.W.2d (Tex.App. Corpus Christi writ — n.r.e.).
ref’d sum, where a statute’s constitu
tionality challenged pro under the due protection equal
cess and clauses of the constitutions,
state and federal the review required court is to examine all the presented attempt
evidence to demon
strate the absence rational relation
ship between statute’s means and ends. submission, original
On we reviewed all the
evidence, including judi admitted notice,
cial but absent an evaluation of credibility, in determining ap-
witness
pellee to meet failed its burden. The stan developed
dards of to evaluate review legislation of .economic
narrowly powers circumscribe the
appellate judiciary. appellee’s We decline upon supplant
invitation to encroach