State v. Towery
79 S.E.2d 513
N.C.
1954
Check Treatment
DeNny, J.

Attacks on the validity of Sunday ordinances have been a fruitful source of litigation in this country. In recent years particularly, there seems to be a growing desire on the part of many individuals, who are engaged in commercial enterprises, to completely ignore the observance of Sunday as a day of rest. In fact, in some jurisdictions, the courts seem to have concluded that Sunday closing ordinances are invalid if the mercantile establishments, which are required to close on Sunday, carry items of merchandise similar to those which may be sold on Sunday by the excepted class of business establishments. Elliott v. State, 29 *277 Ariz. 389, 242 P. 340, 46 A.L.R. 284; Allen v. City of Colorado Springs, 101 Colo. 498, 75 P. 2d 141. In tbe case of Mt. Vernon v. Julian, 369 Ill. 447, 17 N.E. 2d 52, 119 A.L.R. 747, tbe Supreme Court of Illinois said: “No reason is suggested and we can tbink of none wby tbe sbop of a dressmaker or milliner should be required to close while tbe cigar store remains open. None is apparent wby a dry goods store should be required to close when a newsstand continues to operate. We do not see where tbe public welfare is served by closing tbe grocery store and allowing a confectionary store to remain open, nor in closing a notions store while a drug store next door which sells notions is permitted to operate.” It would seem that tbe reasoning of tbe Illinois Court ignores tbe right of a municipality in adopting a Sunday closing ordinance to discriminate as between classes, S. v. Trantham, 230 N.C. 641, 55 S.E. 2d 198, but instead makes tbe question of competition or tbe right generally to conduct a business tbe determinative factor.

It is generally conceded that tbe governing body of a municipality, clothed with power to enact and enforce ordinances for tbe observance of Sunday, “is vested with discretion in determining tbe binds of pursuits, occupations, or businesses to be included or excluded, and its determination will not be interfered with by the courts provided tbe classification and discrimination made are founded upon reasonable distinctions and have some reasonable relation to tbe public peace, welfare, and safety.” 50 Am. Jur., Sundays & Holidays, section 11, page 810; S. v. McGee, 237 N.C. 633, 75 S.E. 2d 783.

In S. v. Trantham, supra, Barnhill, J., pointed out that: “Legislative bodies may distinguish, select, and classify objects of legislation. It suffices if tbe classification is practical. Magoun v. Bank, 170 U.S. 283, 42 L. Ed. 1037; S. v. Davis, supra (171 N.C. 809, 89 S.E. 40). They may prescribe different regulations for different classes, and discrimination as between classes is not such as to invalidate tbe legislative enactment. Smith v. Wilkins, 164 N.C. 135, 80 S.E. 168. Tbe very idea of classification is inequality, so that inequality in no manner determines tbe matter of constitutionality. Bickett v. Tax Commission, 177 N.C. 433, 99 S.E. 415; R. R. v. Matthews, 174 U.S. 96, 43 L. Ed. 909. Tbe one requirement is that the' ordinance must affect all persons similarly situated or engaged in tbe same business without discrimination. City of Springfield v. Smith, 322 Mo. 1129, 19 S.W. 2d 1.”

Tbe defendant here, like tbe defendant in S. v. McGee, supra, does not claim that tbe ordinance discriminates against him in so far as it applies to any other person or persons similarly situated. He simply claims that tbe business establishments permitted to remain open on Sunday sell certain articles of merchandise similar to those which be sells, therefore, be says they are bis competitors. He falls into error in undertaking to make *278 competition as between classes tbe test ratber than discrimination within a class.

In the case of S. v. Medlin, 170 N.C. 682, 86 S.E. 597, the Town of Zebulon had adopted an ordinance which prohibited keeping any shop or store open on Sunday for the purpose of buying and selling (except ice), but provided that “drug stores may be kept open at all times on Sunday for the sale of drugs and medicines; and from 6 to 9 :30 o’clock in the morning and from 1 to 4:30 o’clock in the afternoon, for the sale of drugs, medicines, mineral waters, soft drinks, cigars and tobacco only.” The defendant who did not operate a drug store, opened his grocery store between the hours of 6 and 8 o’clock a.m., on Sunday, 18 January, 1915, while the above ordinance was in full force and effect, and sold cigars, cigarettes and Coca-Cola to several purchasers and received cash payments therefor. At this same time, a drug store in Zebulon was open for the sale of these same articles. The Court said: “This ordinance, which prohibits keeping open stores and other places of business for the purpose of buying or selling, except ice, drugs and medicines, and permits the drug stores to sell soft drinks and tobacco for a limited time in the morning and afternoon, as a convenience to public customs, is not an unreasonable exercise of the police power.” This decision has been followed and cited with approval in S. v. Davis, 171 N.C. 809, 89 S.E. 40; S. v. Burbage, 172 N.C. 876, 89 S.E. 795; Lawrence v. Nissen, 173 N.C. 359, 91 S.E. 1036; S. v. Kirkpatrick, 179 N.C. 747, 103 S.E. 65; S. v. Weddington, 188 N.C. 643, 125 S.E. 257, 37 A.L.R. 573, and S. v. McGee, supra.

Moreover, it will be noted that in the ordinance under consideration, the exemption as to cafes, delicatessens and sandwich shops is limited to those furnishing meals and selling bread, cooked or prepared meats incidental to the operation of such business. Likewise, the exemption extends to (1) “ice cream or confectionery stores, furnishing ice cream, cigars, tobacco, nuts and soft drinks only;” and (2) “cigar stands and newsstands furnishing cigars, tobacco, candies, nuts, newspapers, magazines and soft drinks only.” (Italics ours.)

The defendant, according to his own testimony, operates a curb market and sells “practically everything that is sold in a general grocery store or super market.” Therefore, he has shown no arbitrary or unreasonable exercise of the police power in the classification and selection of businesses to be closed on Sunday.

As stated by Stacy, C. J., in S. v. Weddington, supra: “It must be remembered that we are dealing with the exercise of an unquestioned police power, and whether it transcends the bounds of reason — not with its wisdom or impolicy.” S. v. Vanhook, 182 N.C. 831, 109 S.E. 65.

After a careful consideration of the question raised on this record, and the authorities bearing thereon, we are of the opinion that the ordinance *279 in so far as it bas been challenged on this appeal, is constitutional and, therefore, the verdict helow must be upheld.

No error.