RUTLEDGE et al. v. GAYLORD‘S, INC. HUGHEY et al. v. GAYLORD‘S, INC.
29608, 29647
Supreme Court of Georgia
February 13, 1975
233 Ga. 694 | 213 S.E.2d 626
Mackay & Elliott, Thomas W. Elliott, for appellees.
29608. RUTLEDGE et al. v. GAYLORD‘S, INC.
29647. HUGHEY et al. v. GAYLORD‘S, INC.
NICHOLS, Chief Justice.
Gaylord‘s, Inc. filed a complaint in the Superior Court of Muscogee County against the District Attorney of the Chattahoochee Judicial Circuit, the Solicitor of the State Court of Muscogee County, the sheriff of such county and the Chief of Police of Columbus, Georgia in which the plaintiff corporation sought to have declared unconstitutional an Act entitled “The Common Day of Rest Act of 1974.”
The first section of the Act attacked provides: “The purpose of this Act is to promote the health, recreation, welfare, repose and religious liberty of each individual of this State. The provisions of this Act are not designed to be discriminatory in any way or to any group, but rather to provide the public with necessary benefits and services at all times, while at the same time protecting the lawful humanitarian, social, and religious rights of each individual.”
Section 2 contains the following definitions: “(a) the ‘two (2) consecutive days of Saturday and Sunday’ shall mean the time between midnight on Friday and midnight on Saturday and from midnight on Saturday to midnight
“(b) ‘Two rest days’ means the time between midnight on Friday and midnight on Saturday and from midnight on Saturday to midnight on Sunday.”
Section 3 of the Act provides: “Any person operating a business who, on both the two (2) consecutive days of Saturday and Sunday, sells, offers for sale, or shall compel, force or oblige his employees to sell any item, except those businesses, activities and items exempted from the provisions of this Act, shall be guilty of a misdemeanor. Each item illegally sold shall constitute a separate offense.”
Section 4 provides for a fine for violating such Act and Section 5 declares the operation of any business, except those exempted, as a public nuisance and authorizes the district attorney or others to bring an equitable proceeding to enjoin the further violation of such Act. Section 6 mandates those businesses which operate on Saturday or Sunday to make all reasonable accommodations to the religious, social and physical needs of employees who customarily worship on such work days.
Sections 7 and 8 exempt from the provisions of such Act the activities of any person, nonprofit organization or nonprofit corporation conducting an activity solely for charitable or religious purposes, governmental agencies in the conduct of its official duties and its employees in the discharge of their official employment.
Sections 9 and 10 provide for the following additional exemptions: “Section 9. (a) The prohibitions of this Act are not applicable to the following businesses and activities or to the employees thereof: (1) restaurants, cafeterias, bakeries or other prepared food service facilities; (2) hotels, motels, and other lodging facilities; (3) hospitals and nursing homes; (4) dispensaries of drugs, medicines, toiletries and health needs; provided that areas of any store being utilized for the sale of goods not allowed by this Act shall be closed on one of such consecutive days; (5) ambulance and burial services; (6) generation and distribution of electric power; (7) distribution of gas, oil and other fuels; (8) telephone, telegraph and messenger services; (9) public transportation services, including taxi
“Section 10. The provisions of this Act are not applicable to and shall not prohibit: (a) casual transactions between persons, none of whom are thereby carrying on a business or business transaction; (b) agricultural operations such as farming, animal and poultry husbandry, forestry and allied activity; (c) The conduct of the businesses and activities referred to in sections 7, 8 and 9 of this Act; (d) The practice of the healing arts by persons licensed or otherwise authorized to practice the healing arts under the laws of Georgia.”
Section 11 provides for counties to be exempt from or included in all provisions of such Act after referendum. Provisions are then made in such Act for a referendum in 1974 in all counties.
While the Act here under consideration is entitled the Common Day of Rest Act of 1974 and states in its caption that it is “an Act to limit the doing of business on both the two consecutive days of Saturday and Sunday,” yet a review of the Act discloses that it is in reality an Act which prohibits only “sales” on both Saturday and Sunday by certain businesses. The Act nowhere limits the operation of any business activity other than sales, and even sales are not limited when done by a business exempted by the Act. Thus, sales may be made by manufacturing concerns whether wholesale or retail. The operator of a service station or a garage who also sells automobiles may make sales of such automobiles under the Act. Yet, a dealer in automobiles who neither operates a service station or a repair shop would not be permitted to be open on both Saturday and Sunday for business.
The Act nowhere curtails the delivery and installation of products sold on another date. Any service contracted for on another date may be performed on the “day of rest.”
Only “dispensaries of drugs, medicines, toiletries and health needs” under Section 9 (a) (4) and “grocery stores and other stores or businesses which primarily sell unprepared food products, toiletries and health needs” under Section 9 (a) (29) are required to close down a part of their operation on the “day of rest.”
It is deemed unnecessary to look further into the
Section 1, quoted above, sets forth the intent of such Act. When this section of the Act is read together with Section 6 which mandates that those businesses operating on Saturday or Sunday make reasonable accommodations to the religious, social and physical needs of employees who customarily worship on such work day, the real legislative scheme is carried out. Thus, only those provisions of the Act which arbitrarily require certain businesses to close on one of the two days are unconstitutional. To this extent the judgment of the trial court must be reversed.
Judgment affirmed in part and reversed in part. All the Justices concur, except Gunter, J., who concurs specially and Jordan and Hall, JJ., who dissent.
ARGUED JANUARY 21, 1975 — DECIDED FEBRUARY 13, 1975.
Lenney F. Davis, E. H. Polleys, Jr., Arthur K. Bolton, Attorney General, Michael W. Dyer, Assistant Attorney General, for appellants (Case No. 29608).
Harry Dicus, Hoke Smith, E. Mullins Whisnant, District Attorney, Thomas W. Hughey, for appellee.
Robert G. Johnston, III, Assistant Solicitor, for appellant (Case No. 29647).
Arthur K. Bolton, Attorney General, E. H. Polleys,
GUNTER, Justice, concurring specially.
It is my opinion that Sections 3 and 5 of “The Common Day of Rest Act of 1974” are unconstitutional. I find no constitutional infirmity in the remainder of the Act, and because of the elaborate severability section of the Act (Sec. 12), I would hold only Sections 3 and 5 to be unconstitutional.
Section 3 provides: “Any person operating a business who, on both the two (2) consecutive days of Saturday and Sunday, sells, offers for sale, or shall compel, force or oblige his employees to sell any item, except those businesses, activities and items exempted from the provisions of this Act, shall be guilty of a misdemeanor. Each item illegally sold shall constitute a separate offense.”
It is clear that the seller of a non-exempt item on Saturday does not commit a crime unless he sells another non-exempt item on the succeeding Sunday. And a seller of a non-exempt item on Sunday does not commit a crime, unless he has sold another non-exempt item on the preceding Saturday. This section does not prohibit the sale of non-exempt items on either Saturday or Sunday. What it attempts to prohibit, and seeks to make a criminal act, is the sale of two or more non-exempt items on two successive days, Saturday and Sunday. The prohibition is not against the sale of the items per se, but the prohibition is against the sale of the items on two successive days.
The state through this section of the Act has said that one can sell an item on Saturday, and that is not a crime; but if one sells another item like it on Sunday, the second sale is a criminal act; and the second sale on Sunday, in and of itself not a criminal act, converts the first sale on the preceding Saturday into a criminal act.
The state argues that this is a valid exercise of the state‘s police power. I disagree.
The police power of the state is not unlimited, and when the General Assembly enacts a statute that invokes the police power, as this statute does, it is the duty of the courts to declare the statute unconstitutional if the police
The police power of the state is constitutionally inhibited by Georgia‘s Due Process Clause (
My view is that each of these clauses individually and all three of them in concert render Section 3 of the Act unconstitutional. Georgia‘s Constitution also very plainly says: “Legislative acts in violation of this Constitution, or the Constitution of the United States, are void, and the Judiciary shall so declare them.”
Section 3 of the Act, because of the numerous exemptions contained in other parts of the Act, is applicable only to retail merchants. It creates a crime out of two transactions, if made on successive days, which are individually non-criminal. The crime created by this statute, and which is so stringently limited in its application by all of the exemptions set forth in other parts of the Act, deprives retail merchants of their property rights and their liberty without due process of law as that concept is used in Georgia‘s Constitution. This criminal prohibition and its limited intended application explicitly stated in the Act violate basic values of property and liberty contained in the substantive concept, as I understand it, of due process of law. Further, this created crime, when examined in the context of the entire Act, has no reasonable relationship to the expressed purpose of the Act: “. . . To promote the health, recreation, welfare, repose and religious liberty of each individual of this state.”
Section 3 of the Act operates directly upon and infringes the constitutional rights of property and liberty possessed by retail merchants, it bears no rational relationship to the stated purpose of the Act, and it encroaches upon personal liberty in the guise of promoting a state interest which is quite subordinate to
For similar reasons Section 3 also violates the Equal Protection Clause and the Police Power Clause. It establishes a crime applicable to one “Classification,” retail merchants. This classification, considered in the over-all context of the Act with its many exemptions, bears no rational relationship to the establishment of a day of rest for the people of Georgia. In short, the Act, under the guise of establishing a day of rest, is nothing more and nothing less than a “Saturday Closing or Sunday Closing of Retail Businesses Act.”
Section 5 of the Act makes the operation of a non-exempt business on both of two days, Saturday and Sunday, a “public nuisance.” The operation of such a business on either Saturday or Sunday is not a nuisance, but the operation of the same business on the two consecutive days is declared by Section 5 to be a nuisance subject to being enjoined by the district attorney or any other person or persons.
The General Assembly has declared that a business operated on Saturday but not on Sunday is not a nuisance; if it is operated on Sunday but not on Saturday, it is not a nuisance; but if it is operated on both Saturday and Sunday, then it is a “public nuisance.” This declaration exceeds the limits of the state‘s police power, and, for the same reasons given with respect to Section 3, it violates the Due Process, Equal Protection, and Police Power Clauses of the Georgia Constitution.
For the reasons stated, I concur in the judgment rendered by the court.
JORDAN, Justice, dissenting.
I dissent because in my opinion this Act passes constitutional muster both state and federal.
1. The majority opinion recites the vital portions of the Act and in one majestic swoop concludes that it “is as patently discriminatory as the Act of 1967 (
It is axiomatic that in construing the constitutionality of an Act of the legislature every presumption will be made in favor of its constitutionality. Any conflict between the statute and the Constitution must be clear and palpable. As Justice Hall stated in the recent case of Petty v. Hospital Authority of Douglas County, 233 Ga. 109, 110 (210 SE2d 317), “This presumption of validity is more than a pious formula to be sanctimoniously repeated at the opening of an opinion and forgotten at the end. It is fortified by the principle that absent a debilitating constitutional flaw in the Act, this court must effectuate the common will expressed in the purpose of the legislation. To go beyond this and review with a hostile eye or an adverse mind is to usurp a power which our Constitution has lodged in our legislature.”
Let us then view this Act in the light of this presumption of validity. Candor requires an admission that the Act is far from perfect. It is safe to assume that in this complicated area of public policy as it pertains to the regulation of business in a highly commercialized society that no legislation can be drafted which will mete out perfect and equal justice to each individual in the society. But such perfection is not a constitutional requirement, as courts have many times held.
On the equal protection issue this Act will squarely clear with the Federal Constitution under the opinion of the Supreme Court of the United States in McGowan v. Maryland, 366 U. S. 420 (81 SC 1101, 6 LE2d 393). The same argument advanced by the appellees here was advanced in that case which attempted to strike down a Maryland statute prohibiting the retail sale of merchandise in that state with certain exceptions. The Supreme Court said: “The standards under which this proposition is to be evaluated have been set forth many times by this Court. Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion
This Act will also square with the equal protection provision of the Georgia Constitution.
The appellees, while pointing out some inequalities in the Act, fall far short of showing that the Act is “essentially arbitrary” and rests upon no “reasonable basis,” or results in an invidious classification. See Wilder v. State, 232 Ga. 404 (207 SE2d 38).
In Berta v. State, 223 Ga. 267 (154 SE2d 594), this court upheld the conviction of a person for selling two decks of cards on Sunday, holding that the amendment of
The express purpose of the Act is to promote the health, recreation, welfare, repose and religious liberty of the citizens of Georgia by the closing of certain businesses one day a week. This Act attempts to accomplish these goals, though imperfectly, by providing certain exemptions. All of the stated exemptions deal with works of charity and/or necessity and are stated with sufficient
2. The Act does not aid religionists in violation of the State or Federal Constitution. This is not a Sunday “Blue Law.” Without regard to any church or religion it provides for a “Common Day of Rest.” Such day of rest can be from midnight on Friday to midnight on Saturday or from midnight on Saturday to midnight on Sunday. The court can take judicial notice of the fact that either of these two days is the public day of worship for the vast majority of the citizens of this state. That some isolated sect or individual might choose to worship on a different day does not subject the Act to attack for invidious discrimination.
The trial court erred in holding the Act unconstitutional and I would reverse that judgment.
Therefore, I respectfully dissent.
I am authorized to state that Justice Hall joins in this dissent.