Green Star Supermarket, Inc. v. Stacy

CarletoN . Harris, Chief Justice. Appellant, Green Star Supermarket, Inc., operates retail grocery stores in the city of Little Bock. Appellees are three citizens of Pulaski County who instituted suit under Little Bock Municipal Ordinance No. 11-198, as amended, same being Section 25-115.1 of the City Code, to enjoin appellant from violating this ordinance, and from selling or offering for sale any of the articles prohibited under the provisions of the ordinance. Appellant filed a demurrer to the complaint, which was overruled by the Chancellor, and Green Star Supermarket electing to stand on its demurrer, the court entered a decree whereby the appellant, “is hereby restrained and enjoined from violating the provisions of City Ordinance 11-198 same being Section 25-115.1 of the Code of the City of Little Rock, more popularly known as the Sunday Closing Ordinance and the defendant, its agents., servants and employees are restrained and enjoined from offering for sale or selling on Sunday any of the articles prohibited by said Sunday Closing Ordinance hereinabove stated.” From the decree so entered, comes, this appeal. For reversal, four points are relied upon, vis, the ordinance is. invalid because it is arbitrary and unreasonable, prohibits instead of regulates, and thereby exceeds a municipal corporation’s statutory authority to regulate; second, the ordinance is invalid because it declares something to be a nuisance which is actually not a nuisance; third, the Chancery Court is without jurisdiction to enjoin the commission of a criminal offense when the complaining parties do not allege any injury, and fourth, the ordinance is void because it is too vague and uncertain to be effective. We proceed to a discussion of these points in the order listed. Appellant argues that the classification of items, permitting some to be sold and prohibiting all others from being sold, is unreasonable and arbitrary; that there is no reasonable relationship between proper regulation of the operation of Sunday business and the arbitrary and unreasonable classification of the items permitted, and prohibited, for sale on Sunday. Without setting out the items, we deem it sufficient to state that this argument was fully considered in the case of McGowan v. Maryland, 336 U. S. 420, 6 L. Ed. 2d 393. This case involved the constitutionality of the Maryland Sunday Closing Laws. There, the appellants were indicted for selling a three-ring, loose-leaf binder, a can of floor wax, a stapler and staples, and a toy submarine in violation of Md. Ann. Code, Art. 27, § 521. That section, like the ordinance involved in the present litigation, in general, prohibited the Sunday sale of merchandise, but excepted numerous specific items which could be sold. Appellants contended, inter alia, that the Maryland statutes, under which they were convicted, were contrary to the Fourteenth Amendment, hut our highest court, in affirming the Maryland court, disagreed, stating: “ Appellants argue that the Maryland statutes violate the ‘Equal Protection’ Clause of the Fourteenth Amendment on several counts. First, they contend that the classifications contained in the statutes concerning which commodities may or may not be sold on Sunday are without rational and substantial relation to the object of the legislation. Specifically, appellants allege that the statutory exemptions for the Sunday sale of the merchandise mentioned above render arbitrary the statute under which they were convicted. Appellants further allege that § 521 is capricious because of the exemptions for the operation of the various amusements that have been listed and because slot machines, pin-ball machines, and bingo are legalized and are freely played on Sunday. “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 in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended onl/ if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result .in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. (Citing cases) “It would s,eem that a legislature could reasonably find that the Sunday sale of the exempted commodities was necessary either for the health of the populace or for the enhancement of the recreational atmosphere of the day — that a family which takes a Sunday ride into .the country will need gasoline for the automobile and may find pleasant a soft drink or fresh, fruit; that those who go to the beach may wish ice cream or some other item normally sold there; * * * ‘ ‘ The record is barren of .any indication that this apparently reasonable basis does, not exist, that the statutory distinctions are invidious, that local tradition and custom might not rationally call for this legislative treatment. ’ ’ We think this case completely answers the contention made. It is further asserted that, while the city may have authority to properly regulate the operation of businesses on Sunday within the city limits, the complete prohibition of sales of all but certain items on this day of the week does not constitute regulation, but ¿ctually constitutes prohibition. We disagree, and here again, the contention is rejected in McGowan. Ark. Stat. Ann. § 19-2335 (Supp. 1965) provides: “Hereafter, city council or bo^rd of managers of any city or incorporated town in this State shall have the authority, by ordinance, to regulate the operation of businesses within such cities or towns on Sunday.” We consider this statute as sufficiently broad and definite to grant the municipality full and complete authority to enact the present ordinance, and we might also call attention to Ark. Stat. Ann § 41-3812 — 41-3823 (Supp. 1965), which is Chapter 38, entitled, “Sunday Laws,” (Act 135 of 1965). This act reaffirms the power given a municipality to enact ordinances prohibiting sales., and the statute itself prohibits the sale of certain specified items. There is no merit in this contention. As to the second contention, the answer is simply that the ordinance in question declares a violation of same to be a public nuisance; state statutes also declare illegal sales on Sunday to be a public nuisance. Ark. Stat. Ann. § 41-3818 (Supp. 1965). In Dardanelle v. Gillespie, 116 Ark. 390, 172 S. W. 1036, this court pointed out that a city or town has no authority. to declare something a nuisance, which is not a nuisance per se, unless that authority was conferred by express legislative enactment. Here, that authority has, been conferred, and we accordingly find no merit in this, contention. It is next asserted that the Chancery Court is without jurisdiction to enjoin the commission of a criminal offense when the complaining parties do not allege any injury. We do not agree with that argument. It has already been pointed out that this, ordinance was properly authorized, and the city statute does not go beyond the authority bestowed by the General Assembly. Subsection (c) declares, that the sale of any prohibited article “is declared to be a public nuisance, and any store or other establishment wherein such sales or offers of sales are made in violation of this section is hereby declared to be a public nuisance, and any citizen (our emphasis) of this city may enjoin said nuisance in the Chancery Court of this district. The issuance of an injunction shall not relieve a. person from criminal prosecution for violation of the provisions of this section, but such remedy of injunction shall be in addition to liability to criminal prosecution.” We have held on several occasions that the fact that the violation of an act constitutes a criminal offense does not affect the power of a court of equity to grant injunctive relief. In Ritholz v. Arkansas State Board of Optometry, 206 Ark. 671, 177 S. W. 2d 410, we said: “The action is not one to enjoin the commission of a crime, as. such. Its purpose, primarily, is to prevent the illegal practice of optometry, rather than to penalize the practitioner. If the latter alone were the object, Chancery would be without jurisdiction. The rule, as stated in 28 American Jurisprudence, Injunctions, § 148 at page 338, is that acts amounting to a public nuisance will be restrained if they affect the civil or property rights or privileges, of the public, or endanger tbe public health, regardless of-whether such acts are denounced as crimes.” Also, in James v. James, 237 Ark. 764, 375 S. W. 2d 793: “The fact that an act enjoined also happens to be a criminal offense does-not affect the power of a court of equity to enforce its order and the criminal aspects of an act neither give nor oust equity of jurisdiction. Meyer v. Seifert, 216 Ark. 293, 225 S. W. 2d 4 ; Hickinbotham v. Corder, 227 Ark. 713, 301 S. W. 2d 30. If it should be held that the imposition of a criminal penalty for violation of a law" would deprive a court of equity of jurisdiction to enforce’ its orders than a' person desiring to proceed or continue in violation of the law might be able to pay a maximum fine and, thus, make himself immune from a valid chancery court injunction. This is not and should not be the law.” Finally, it is urged that the ordinance is void because it is too vague and uncertain to be effective. Here again, the contention is contrary to the holding in McGowan v. Maryland, supra, where the United States Supreme Court stated: “Another question presented by appellants is whether Art. 27, § 509, which exempts the Sunday retail sale of ‘merchandise essential to, or customarily sold at, or incidental to, the operation of’ bathing beaches, amusement parks et cetera in Anne Arundel County, is unconstitutionally vague. We believe that business people of ordinary intelligence in the position of appellants ’ employer would be able to know what exceptions are encompassed by the statute either as a matter of ordinary commercial knowledge of by simply making a reasonable investigation at a nearby bathing beach or amusement park within the county.” Actually, tlie ordinance involved is not nearly so indefinite as that in McGowan, for Section 25-115.1 of the Code of the City of Little Rock lists rather specifically many items that may be sold; for instance, we find “milk, bread, cakes, pastries, fresh fruits, bacon, eggs,” etc. Those mentioned only in general terms, we think, would be 'understood by anyone with, as stated in McGowan, “ordinary commercial knowledge.” Examples are “drugs and medical supplies, and all other such items as. are customarily used for the relief of pain * * * baby foods; school supplies * * * Gasoline, oil, greases, and motor vehicle parts or equipment necessary to the operation of a motor vehicle * * *” etc. Finding no merit in any of the points raised by appellant, the decree entered by the Chancery Court is herewith affirmed. FoglemaN, J., dissents.