*1 832 that are raised not consider matters will
this Court 39, 42, LaGoy, A.2d 136 383 appeal. v. Vt. time on State first 238, 240, Kennison, 373 (1978); 135 Vt. 604, v. 606-07 actually 556, none of the issues Because A.2d 558 Quazzo briefed, Quazzo, argued see v. below were Village 638, Or- 107, 111, (1978); v. A.2d Wells 216, 224-25, (1974), and Inc., A.2d leans, 132 Vt. Kasper, appears, “glaring error” see State v. no presented for (1979), no issue is review. Judgment affirmed. Shop Markets, Food Inc. v. Save
State Vermont A.2d 235]
[415 262-79 No. Smith, Daley Hill, JJ., (Ret.), Barney, C.J., J.
Present: Assigned Gibson, Superior Judge, Specially Opinion April Filed *2 Diamond, General, Attorney Unger, M. Jerome Richard A. Attorney General, Berk, Special Frank F. Assistant Assistant Attorney General, Olsen, (On and Robert Law Clerk Montpelier, Gray, Brief), County and Dale O. Caledonia Johnsbury, Attorney, for Plaintiff. St. State’s Downs, L. H. Marshall and John Primmer of John Rachlin Martin, Johnsbury, for St. Defendant. & McClallen, Eutland, P.
Robert Vermont Eetail Grocers’ Association, amicus curiae. Robinson, Colchester,
William D. Vermont Retail Asso- ciation, Inc., amicus curiae. Quinn Pierson, Wadhams, Burling- William H. &otter Aff
ton, Company, for Grand Union curiae. amicus Barney, Sunday C.J. On a afternoon the de- June Shop fendant Market Save Food was business food, amounting and made a retail sale canned to $1.15. July 5, 1978, filing This resulted of a criminal com- plaint alleging a violation of This 13 V.S.A. 3353 statute portion Act, Day is a the Common Rest 13 V.S.A. 3351-3356, regulates Sunday activity. which business §§ Vio- subject penalties lation of the statute is in- to criminal which imprisonment clude a fine of not than more for 30 $200 days, per transaction, for a first offense. V.S.A. familiarity Because with the Act essential to an understand- ing parties, appen- it contentions of is set out in an opinion. dix to this plea
The defendant not guilty entered a and moved to *3 charge grounds. hearing dismiss the on constitutional A was motion, had on agreed and various facts the were to for the purposes the The court the motion. found motion to dismiss supportable, holding the that to 13 V.S.A. provided 3354(7) (P) equal violate the protection process and due clauses of the United States Con- prosecution prior stitution. On motion of entry to the judgment, permitted interlocutory appeal the district court 5(b) (1). grounds to this under Court V.R.A.P. The other dismissal advanced the defendant —that the entire scheme Day protection equal the Common of Rest Act violates unconstitutionally vague clause, it is in violation of the process due that the rely clause and defendant was entitled to rulings holding on two Vermont district court the Act uncon- rejected by the stitutional —were district court. The defendant permission cross-appeal portion to from received this ruling. appeal, the defendant
On
asserts each of those con
supported by
presumption
tentions. The Act is
of constitu
tionality.
Montpelier &
Railroad,
Re
Barre
102, 102,
135 Vt.
(1977).
time,
A.2d
At
same
the Act is one
legal into
ordinarily fully
are
which converts activities which
engaged
days.
otherwise
if
in
certain
Whenever
on
crimes
obliged
look
activity
criminal,
to
legal
is made
this Court is
has
concern
carefully to
no
constitutional
determine that
basic
on
transgressed
constitutional
limitation
and that no
been
Carpenter,
overstepped.
sovereignty
been
State v.
has
[T]he purpose. "Although precise for- statutory no to the vant developed, has held mula has been Court scope permits the States a wide Fourteenth Amendment groups enacting which affect some discretion in laws differently The constitutional safe- of citizens than others. only guard the classification rests offended if is grounds to wholly irrelevant the achievement objective. legislatures presumed have to State’s power despite fact acted within their constitutional inequality. that, in A practice, result some their laws state statutory set aside discrimination will be reasonably may justify it.” be conceived facts Maryland, supra, 425-6. McGowan v. 366 U.S. A.2d at 743. Id. at statutory obligation classification examine the
Our every formality. rationality Not classification no mere regulation will accomplish legislation economic intended Taxes, scrutiny. Commissioner such Pabst v. survive *4 (1978). But see New 126, 131-34, 1184-85 Vt. curiam) (per Dukes, (1976) 427 U.S. v. Orleans (1957)). It Morey Doud, also (overruling is v. 354 U.S. by classification that the mere fact of to understand essential itself, establish, by that the enactment legislature does not a purpose. rationally permissible state Pabst v. related to a is Cadigan, Taxes, supra; v. Vt. Commissioner of Const, I, (1901); ch. art. 7. 252-53, 1081-82 50 A. already noted, holding As court, the in Act district the protection, equal violative of on relied the classification estab- by impact exemptions: exemp- lished the combined the two provided tion 3354(7) (P) provided one (JJ). (7) subsection (7) (P) operation any Pursuant to store wherein persons “no more employed premises than seven ... are on the at regular week-day one time in the usual and conduct of exempted prohibition doing against business” is from the Sunday (7) (JJ) operation business. Pursuant to of all stores, except required food comply food stores to with the Pricing Act, exempted Unit prohibition. is from the The Sun- day operation of comply required food stores with the Pricing Unit Act, 681-687, 6 Y.S.A. since those stores are §§ excepted exemption provision, prohibited. from the All food required stores are comply Pricing with the Unit Act ex- cept gross stores which preceding year had revenues less $500,000, than operated and stores which are owned by one owner and family, members of his immediate unless part such stores are a company-wide chain which had $1,000,000 revenue of during year. preceding more (See 6 V.S.A. appendix.)
Looking generally more at the effect of these only on stores of the same nature as defendant —food stores scope —the apparent. these classifications becomes noteWe parties that stipulated have of all stores food 90% permitted are under the statute. “Small” food stores exempted are Sunday from closing requirement under (7) (P). Although the not record does describe the size rela- tionship, exempts (7) also stores food which are “small” they the sense $500,000 do less than worth business per year, they part unless are grossing of a chain stores $1,000,000 Yet, long they or more. so as members of chain, family food owned stores of an unlimited size in terms of exempted. dollar volume are Presumably, practical on limitations the size place family industriousness of one finite, undefined, some limitation the size of such busi- nesses.
The relation between these classifications the ex pressed purpose of the Act to day “establish a common of rest
337 unjusti- one of general of work” is by of the cessation means general prohibi- exceptions to the fied overinclusiveness. Some prohibition that the necessary in to insure are both order tion public to foster the hardship the and on does not work a to Act seeks recreation” the occasions and which “social “atmosphere repose tran- the advance virtue the take issue with quility” for it aims. do not which We appropriate to allow policy that it is initial determination purposes. Nor would food to to serve these some stores size on the that distinction based we find it irrational make to us nor Nothing has question. of the store in been advanced any how rational basis that demonstrates can conceive of we slightest expressed in the the ends of Act the are advanced permits family of almost stores a classification which owned undermines, open. to remain Indeed the classification size part, tranquility “atmosphere repose in In the which gather together families, can . . . friends and relatives are, therefore, required recreation.” We social occasions and rationally not related to conclude that the classification is express purpose of the Act. rationality However, judging in express pur (7) (P) are to the we not limited Act’s public objective pose, any legitimate policy which but look to Carpenter, supra; State v. can in its be asserted defense. 258-59, 860, Lathrop, 256, Andrews v. A.2d Auclair, 107, (1974) State v. ; A.2d arguing con (1939). support In of the statute true, unexpressed, is statute tends that regulation. the Act distin The State contends that economic promote guishes small Pre basis size business. sumably permissible objective. As we be a state would objective promoted by above, not the this classi this is noted by exemp among food created distinctions stores fication. The They exclude (7) (P) (JJ) do rest on size. do tions only Sunday operation, those large but stores from some family operated. the classification is not are not Since which business, rationally promoting small to the end of related justify it. cannot that end pro other ends left to consider what
areWe part apparent at least It is by the classification. moted promote family ownership classification does of food stores. But solely economic discrimination based on con- sanguity impermissible. Kennedy, Goodman v. Pa. promotion Similarly, locally suggested justification. pro owned businesses is a Such tectionism, permissible also, objective. is not a state State v. *6 Associates, 495, 499, Rockdale 125 Vt. 218 A.2d 721 (1966); Mills, City Barre, see 478, 486, Olan Inc. v. 123 Vt. of (1963). 194 A.2d
Search permissible purpose has revealed no state which is rationally to related this classification. This leaves us with the firm conviction that none exists. Therefore the classification Still, obligated must fail. we are to statutory construe the language legislative intent, to effect the lawfully that can be done. In re Delinquency Proceedings, 185, 188-89, (1970). exemption (P) We (7) note is not difficulty the source of the It excep- stated above. is the with provision exemption (7) tion (JJ) of that the concern arises. Presumably exemption each is intended to stand alone. We therefore presented conclude that by as the to defect this classification, remedy the exception need for is limited to the exemption (7) (JJ). provision. clause of only We strike Hazelton, See State v. A.
This determination is require alone sufficient to affirmance of the trial court order. no We therefore have occasion to grounds consider the broader advanced defendant to chal- lenge validity the of Day the entire scheme Common of Act, although Rest questions those are not free from doubt. disposition Since fully of accomplished by our this matter is controlling our to question answer the of law which raises validity ruling of district (7) court (JJ) that the ex- emption equal protection, violates to ques- answers the other tions of advisory law set out improper. would be and therefore controlling question
The challenging validity, law on of equal protection the basis considerations, of of 3351(7) (P) § V.S.A. is answered in the affirma- exception tive as to the clause (7)(JJ). subsection The judgment cause is entry remanded dismissal. for
APPENDIX Chapter Title Title 3351. § cited, Com- chapter known, may as be shall be
This Day mon Act. Rest Purpose day of chapter common to a of this establish
The work, which will general cessation rest means of tranquility in- in which atmosphere repose and an create friends, relatives can families, can relax and dividuals together recreation. gather occasions and social Sunday and labor business 3353. Prohibition person, or Sunday firm It unlawful shall be corporation: profit or
(1) engage in labor to or conduct business place operate of busi- location, manner and usual public; ness agent any employee cause, direct, or
(2) to authorize *7 profit the usual or in engage labor in or conduct business operate place location, of business or a manner and public. to the Exemptions apply
Nothing to: of this title shall in section 3353 day any person good in a (1) faith observes natural who Sabbath, Sunday if he: other than as conducting or (A) engaging in or business refrains from public profit place to the and closes his of business labor for day; on that day of
(B) business on the common does conduct his way materially disturbs noise rest in such a as to create which observing day. that others who are through a operations any conducts (2) which business corporation, substantially cor- single if all the stock of such faith, day persons who, good a poration in observe is owned regularly Sunday work and who other than as Sabbath corporation, place and primarily of business of at the corporation: :340
(A) engaging conducting refrains from in or business profit place public and its closes of business to the on that day;
(B) day does not conduct of rest business on common way materially in as noise such to create which disturbs n others observing day; who (C) operates place more than one no of business. (3) nonprofit organization, any person, nonprofit or cor- poration engages labor, in or or conducts business or keeps open place public, its of business to the if the activities enterprise solely of the are conducted reli- charitable or gious purposes.
(4) federal, state, municipal, governmental or local department agency, acting employees, or its in an official capacity. firm,
(5) any person, corporation performing Or neces- acts sary public health, safety, good for the order.
(6) any person, corporation engaged agriculture firm or harvesting or the of timber. (7) operation primarily a store an establishment
n engaged any following businesses:
(A) emergency plumbing, heating, cooling, and electrical repair replacement parts and equipment; and hospitals
(B) nursing homes; dispensaries (C) drugs medicines; (D) services; ambulance and burial (E) generation and distribution electric power; (F) telephone, telegraph, messenger services; (G) water, air, transportation and land services and at- facilities; tendant
(H) stations; automobile service (I) gas, oil, fuels; distribution of and other (J) fishing, hunting, licenses; the sale of and other (K) heating, refrigeration, cooling services; *8 (L) storage warehousing cold manufacturing and ice distribution; and
(M) equipment minimal maintenance of machinery; and (N) plant protection and industrial services; (O) processing industries where continuous or manufac- turing required by very procéss nature involved; persons, includ- seven no more than
(P) stores wherein premises at one employed on the ing proprietor, busi- week-day regular conduct time in the usual and ness; greenhouse nurseries;
(Q) or laundries; (R) automatic self-service prod- farm engaged in the (S) sale seasonal stands seafood, products, Christmas dairy maple or uce, products, trees; dairy- agricultural processing plants handling
(T) products ; sporting equip- boats, boating
(U) equipment, sale craftsmen; novelties, products ment, souvenirs, or the salesmen; (V) real estate real estate brokers and by persons property (W) isolated occasional sales prop- exchange engaged sale, of such transfer, business; erty as a distribution; newspaper publication
(X) and broadcasting; (Y) radio and television perform- picture, theatrical, (Z) musical and motion ances;
(AA) libraries; forums, lectures, exhibits;
(BB) educational restaurants, cafeterias, prepared food (CC) or other organizations; service homes, hotels, motels, rooming houses,
(DD) tourist facilities; camps, lodging trailer and other events; (EE) sporting athletic and (FF) beaches, areas, recreational other parks, ski facilities; attractions; historic,
(GG) scenic, tourist zoos, centers, fairs, museums; (HH) amusement YMCA, etc.) ; (USO, (II) organizations service consumption except of food for human the sale provi- comply required to or establishment with store chapter of Title 6. sions Definitions determining qualification in this
(a) For the to be chapter, shall deemed or an “establishment” be a “store” as, building advertising any operation conducted one within *9 public be, representing and enter- itself to one business prise regardless departmentalization. All sub- internal departments shall, purpose of this leased store for chapter, they operated by be deemed to be the store which Contiguous by proprietor are located. stores owned same operated by management or the same shall be deemed to be a single chapter. purpose store for the of this
(b) chapter, “Sunday” in- For of this shall any Sunday January clude 1, July and shall also include Day Thanksgiving. Labor penalties 3356. Criminal Any
(a) person, corporation guilty firm or of vio- found lating any provisions chapter punished this shall be by by a fine of not imprisonment more than or for $200.00 thirty days, by both, offense; or first a fine by imprisonment not sixty more than or days, or $500.00 by both, occurring for the year second offense within one fol- lowing Any the first subsequent conviction. offense to the sec- occurring offense and years following ond within two punished by second conviction shall be a not fine of more than $1,000.00 by imprisonment ninety days, or by both, an additional fine on employee offense such for each $500.00 caused, directed or authorized to work of this violation chapter, provided, however, nothing contained herein permit any shall penalty upon any be employee construed agent who has been employer caused or his directed provisions chapter. violate the of this (b) separate sale, exchange Each property trade or thereof, offer chapter sep- in violation of this constitutes arate offense. 6, Chapter
Title Exceptions requirements The chapter of this apply shall not to: (1) subparagraph This apply shall agen- to retail sales cies or during immediately instrumentalities which pre- ceding year gross calendar had $500,- revenues of less than 000.00, or which are operated by owned and one owner and family, except members of his immediate that where two or agencies more sales parts or instrumentalities of the same company, company-wide gross and the revenues totaled $1,000,000.00 during immediately preceding or more cal- year, agencies endar the sales and instrumentalities of such company exempt subparagraph. shall not be from this
(2) commodity consump- A sale a consumer for use or premises tion on the where sold.
Daley Hill, concurring. JJ., join we in the While result case, reached in this feel that nec- we further comments are *10 essary. opinion majority states, As the the avowed sham, masking objective of the law is a mere the actual ac- complishing unspecified types regula- numerous of economic tion, any permissible pattern. “However, devoid of rational legislative leeway permitted should never be to extend to the promulgating utterly lacking of statutes which are in cohesive only arbitrary scheme. When the classifications are not but they also transgress irrational prerogatives the broad of the Legislature.” People Abrahams, 277, 285, v. 40 N.Y.2d 574, 578, 661, N.E.2d (1976). 386 N.Y.S.2d The whole direction irrationally prefer of this act arbitrarily groups certain groups. preferences over other Such run squarely afoul of our govern- constitution’s mandate: “That is, ought be, ment benefit, instituted for the common protection, security people, nation, community, particular and not for the advantage emolument or single man, family, men, part only set of who are a of that Const, community I, . . . .” Therefore, although Vt. ch. art. 7. this act does not undemanding Equal violate test of the Protection Clause of the Fourteenth Amendment to the United Constitution, States Albans, State Inc., v. Giant St. (1970) ; 268 A.2d Maryland, McGowan v. 366 U.S. (1961), 425-28 majority’s we concur in the subtle hold- ing imposes state rigorous test, our constitution a more which this act cannot meet.
Upon record, might a different we well find further fault Although with this act. we have not had the benefit of evi- dentiary proceedings operation many to illustrate the of the act, to the it seems clear to cursory even the most appraisal operation reproduce their prohibited will burdening discrimination and of interstate commerce con- Associates, demned in State v. Rockdale A.2d By exempting precisely those stores which are con- probably Vermonters, likely the act to be owned most derogation protectionism in impermissible stitutes national overriding requirement of a “Commerce Clause’s ” Apple Washington Adver- market.’ Hunt v. ‘common (1977); Milk Co. tising Commission, Dean 432 U.S. Const, (1951); art. City Madison, U.S. 340 U.S. v. I, 8, cl. 3. statutory portion de- apparent of the It that the also seems the intentions sign wanting in central to found this case was majority’s Legislature enacting exci- The law. Sunday, con- sion, by allowing all food stores to be legislative foreign something to the into verts statute therefore, truly appropriate remedy, purpose. would be The act, it majority not to transform the entire for the strike Legislature something did not into that the want. Conway, H. Commissioner
Thomas Riffon v. William Motor Vehicles [415 241] *11 No. 265-79 Keyser, (Ret.), C.J., Billings Hill, JJ., Barney, Daley, J. Present: Specially Assigned April Opinion Filed Rutland, Legal Aid, Inc., Burg, M. Elliot Vermont Plaintiff.