Thе instant action was brought to seek an injunction requiring the City of Atlanta and its officials to apply Georgia Code Sectiоn 26-6905 in a non-discriminatory manner, or in the alternative to strike down such statute as unconstitutional.
The statute in question provides: “Any person who shall pursue his business or the work of his ordinary calling on the Lord’s day, works of necessity or charity only exceptеd, shall be guilty of a misdemeanor.” Various activities have been exempted from the above statute by legislation. Such exempted activities include the operation of dance halls and movie theatres and the promotion of аthletic events such as baseball, football, and automobile racing.
Numerous other activities have been exempted by judicial decision. These activities include the sale of gasoline, drugs, and food for consumption.
The petitioners launched a two-pronged attack, alleging first that the statute itself is unconstitutional, and second that if the statute is constitutiоnal, it is being applied and enforced in a discriminatory manner.
With regard to the first allegation, the petitioners contеnd that the exemptions are arbitrary and capricious and bear no relation to a reasonable exerсise of the state’s police power. In a previous order, the Court ruled, although with a certain degree of resеrvation, that this contention was controlled by the Supreme Court’s decisions in McGowan v. State of Maryland,
However, in McGowan, the Supreme Court stated “that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens diffеrently than others,” and this Court is of the opinion that the statute involved in the instant case does not create distinctions which сould be deemed more arbitrary than those found in the statutes involved in the McGowan and Two Guys cases. Therefore, the Court held that Sectiоn 26-6905 with its array of exceptions was constitutional.
The remaining question, and that which is determinative of whether this Court shall issue a permanent injunction, is whether the defendants must enforce Section 26-6905 in a non-discriminatory manner, and whether in fact they havе been doing so.
As noted previously, the Courts of Georgia have carved out numerous exceptions to 26-6905; the sale оf gasoline and drugs are among these judicially-created exemptions. It is a matter of common knowledge that outlets for the above commodities do not restrict themselves to the sale of drugs or gasoline. In simple terms, many “drug stores” which оperate 24 hours a day, 7 days a week, carry items ranging from televisions to power mowers and from lingerie to lawn furniture. (Sеe stipulation of fact.) Not only is the sale of such article stipulated, it is agreed that such goods are sold in direct сompetition with the same merchandise carried by the petitioners. It is blatantly obvious that the merchandise carried for resale does not determine whether a business falls within the scope of 26-6905; the key appears to be whether the еstablishment calls itself a “drug” store or a “department” store. Such a distinction is tenuous at best.
The defendants have stipulated that drug stores carrying consumer goods from A to Z are allowed to stay open on Sundays and to sell all their wares, not just drugs; that drive-in groceries which carry almost every article of food which the consumer may have forgotten *894 to purchаse during the other six days of the week remain open on Sunday; that the defendant operates recreational fаcilities which sell tennis and golf equipment; that the defendant licenses the operation of shops which sell lighters, clothеs and other consumer durables in the defendant’s municipal airport; and that television repairmen are left free tо follow their ordinary course of business on Sunday.
McGowan and Two Guys make it clear that a state can constitutionally effect and maintаin Sunday closing laws. These cases also make it clear that the state can choose to create reasonable exceptions, either by legislation or judicial action; however, this Court is of the opinion that neither case stands for the proposition that municipalities may choose to carve out exceptions via selective enforcеment of the state statute.
Thus, the Court is of the opinion that, under the doctrine of Yick Wo v. Hopkins,
Thus, this Court hereby issues an injunction prohibiting the discriminatory enforcement of Section 26-6905 of the Georgia Code.
It is so ordered.
JUDGMENT
The above stated case was brought to seek an injunction requiring the City of Atlanta and its officials to apply Georgia Code Section 26-6905 in a non-diseriminatory manner, or in the alternative to strike down such statute as unconstitutional.
Counsel for the parties filed with this Court their Motions for Summary Judgment. Said Motions having been submitted to the Court for consideration and the Court after having cоnsidered the motions,
It is hereby ordered that plaintiffs’ motion for summary judgment be and the same is hereby sustained and that defendants’ motions for summary judgment be and the same is hereby overruled and denied.
It is further ordered that an injunction issue prohibiting the discriminatory enforcement of Section 26-6905 of the Georgia Code.
It is so ordered.