Taylor v. City of Pine Bluff

George Bose Smith, J. The appellant was charged with having kept his grocery store open on seven separate Sundays, in violation of state law. Ark. Stats. 1947, § 41-3802. The trial court directed a verdict of guilty upon each count, as is permissible in a misdemeanor ease when the proof of guilt is undisputed and the punishment is by fine alone. Huff v. State, 164 Ark. 211, 261 S. W. 654. The jury assessed the minimum fine of $25 for each offense. The appellant’s principal contention is that the Pine Bluff police are enforcing the statute with such discrimination as to deny to the appellant the equal protection of the laws. The trial court rejected the appellant’s offer to prove that, pursuant to a policy adopted by the mayor or the city council, the police have singled out grocery stores in the enforcement of the Sunday law. According to the proffered evidence the police arrest everyone who operates a grocery on Sunday, but they allow business to be done on that day by such concerns as drug stores, hotels, filling stations, restaurants, funeral homes, bakeries, tourist courts, bus stations, city park concessions, and sporting goods stores. It is argued that this proof should have been admitted and would have established a defense to the charges. Needless to say, the mere fact that a law is not strictly enforced in every instance is not ordinarily a defense in a criminal case. The accused cannot as a general rule escape punishment by proving that someone else has committed the same offense with impunity. Nevertheless, it was settled by the decision in Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220, that purposeful discrimination in the enforcement of an ostensibly fair law may violate the constitution. If the unlawful administration of the statute results “in its unequal application to those who are entitled to be treated alike, ’ ’ there is a denial of equal protection. Snowden v. Hughes, 321 U. S. 1, 64 S. Ct. 397, 88 L. Ed. 497. Thus the question is whether the Fourteenth Amendment requires that Sunday laws apply alike to grocery stores and to the other businesses mentioned in the appellant’s offer of proof. In other words, if the state statute applied by its terms to grocery stores alone, would it be valid? This question would not receive the same answer in all jurisdictions. The problem has often arisen in connection with statutes and ordinances containing enumerated exceptions to the general prohibition against the doing of business on the Sabbath. All courts agree that some classification is permissible under the equal protection clause and under similar guaranties in state constitutions, but there is no uniformity of opinion as to the exact point at which classification becomes so unreasonable as to be arbitrary. In some states the issue of discrimination has been tested on the basis of the various commodities that can or cannot be lawfully sold on Sunday. According to this view if one merchant is allowed to sell a certain article on the Sabbath the same privilege must be granted to everyone else. Consequently grocers have been successful in attacking laws that allow drug stores to operate on Sunday, merely by showing that grocery stores and drug stores sell at least a few of the same items. Allen v. City of Colorado Springs, 101 Colo. 498, 75 P. 2d 141; Ex parte Hodges, 65 Okla. Crim. 69, 83 P. 2d 201. In what is perhaps an extreme example of this view it was held that the owner of a monument works could challenge as discriminatory a law that allowed cemeteries to conduct business on Sunday. Gaetano Bocci & Sons Co. v. Town of Lawndale, 208 Calif. 720, 284 P. 654. It does not seem to us that the equal protection clause restricts the legislature. to classifications based on the type of, commodity being sold. The legislature might reasonably believe that it is necessary and desirable to allow pharmacists to fill prescriptions on Sunday. It might also find that druggists are unwilling to open their stores for that limited activity alone and' that medicines can be made available to the public on Sunday only by permitting all departments of the drug stores to remain open. Hence it does riot necessarily follow that because the druggist sells a bar- of soap on Sunday the grocer has a constitutional right to do the same. A study of the cases indicates that to test discrimination solely on the basis of the article sold is apt to result in abolishing all exceptions to Sunday laws, for businesses are tending more and more to overlap.one another’s activities. We prefer to give full effect to the presumption of constitutionality that attends every statute and to uphold the statutory classification in the absence of proof indicating that there is no reasonable basis for the distinctions laid down by the legislature. Under this view, which prevails in many jurisdictions, Sunday laws applicable only to grocery stores and meat markets have been held to represent a reasonable classification. People v. DeRose, 230 Mich. 180, 203 N. W. 95; State v. Somberg, 113 Neb. 761, 204 N. W. 788; see also Theisen v. McDavid, 34 Fla. 440, 16 So. 2d 321; State v. Towery, 239 N. C. 274, 79 S. E. 2d 513, appeal dismissed, 347 U. S. 925, 74 S. Ct. 532, 98 L. Ed. 1079. It is our conclusion that a Sunday law applying only to grocers would be valid and that therefore the appellant is entitled only to be treated in the same manner as other grocers. The trial court correctly refused the defendant’s offer of proof. Two remaining contentions may be answered quickly. It is said that the appellant was prejudiced by a remark made by the city attorney in his opening statement to the jury. Apart from the fact that the court admonished the jury not to consider the remark, the argument is refuted by the fact that the court directed verdicts of guilty, leaving only the matter of the punishment to the jury. Since the jury imposed the minimum fine in each case the appellant cannot have been harmed. We are also urged to declare as a matter of common knowledge that public necessity requires grocery stores to he open on Sunday. We do not know this to he true; rather to the contrary, in many communities such stores are closed on Sunday without apparent detriment to the public welfare. Moreover, the statute puts the issue of necessity on an individual basis, as it provides that “necessity on the part of the customer” may he shown as justification for commercial activity on the Sabbath. Ark. Stats., § 41-3803. It may he doubted whether this exception was meant to permit business as usual on Sunday, without regard to the needs of any particular patron. Affirmed. BobiNSON, J., dissents.