SUNDAY ‑- DAY OF REST LEGISLATION ‑- CONSTITUTIONALITY

AGO 1963 No. 13 - Feb 21 1963

Attorney General John J. O'Connell

SUNDAY ‑- DAY OF REST LEGISLATION ‑- CONSTITUTIONALITY.

Senate Bill No. 175, if enacted into law, would not violate the state or federal constitutional requirements of due process, equal protection or freedom of religion.

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February 21, 1963

Honorable A. L. "Slim" Rasmussen
State Senator, 28th District
Legislative Building
Olympia, Washington

Cite as: AGO 63-64 No. 13

Dear Sir:

By letter previously acknowledged you requested an opinion of this office on the constitutionality of proposed Sunday closing legislation. We paraphrase your question as follows:

Is Senate Bill 175, prohibiting the sale on Sunday of certain designated items of personal property and providing criminal penalties for violation thereof, constitutional?

We answer your question in the affirmative to the extent set forth in our analysis.

ANALYSIS

Senate Bill 175 contains a total of six sections. Section 1 prohibits employees and other persons from selling on Sunday a long list of items of personal property including:

". . .

"(9) Toys, except items customarily sold as novelties and souvenirs;

"(10) Sporting goods, except at a recreational facility where the sale of sporting goods is necessary to complete a form of recreation at that facility;

"(11) . . .

"(12) Fresh meats, produce, bakery goods, and [[Orig. Op. Page 2]] groceries, except as a part of prepared meals for consumption on or off premises, or in a store which does not employ or is not operated by more than two persons, including the proprietor thereof; . . ."

Section 2 contains additional exemptions, as follows:

"Any sale or sales for a charitable, funeral or burial purpose, or any item or items sold as a part of or in conjunction with the sale of real property, or any agricultural item, produce, or commodity sold by a person who is the grower thereof, or any occasional sale of any item named herein by a person not engaged in the business of selling such item shall be exempt from this 1963 amendatory act."

Sections 3 and 4 provide, respectively, for the imposition of criminal penalties and injunctive relief for violations of the proposed law. Section 5 contains a standard "saving" clause (i.e., providing for severability if any provision is held unconstitutional). Finally, § 6 repeals the present Sunday closing law, chapter 249, Laws of 1909 (cf. RCW 9.76.010).

Slightly less than two years ago the United States Supreme Court rendered its decision inMcGowan v. Maryland, 366 U.S. 420, 6 L.Ed. (2d) 393, 81 S.Ct. 1101 (1961), upholding the constitutionality of Sunday closing (or Sunday Blue) Laws of the state of Maryland. Three basic constitutional issues were considered by the court in arriving at its decision. These issues, stated in terms of questions regarding our own Senate Bill 175, are as follows:

I. Whether the proposed law would constitute a law respecting an establishment of religion or prohibiting the free exercise thereof contrary to the provisions of the State Constitution, Article I, § 11, as amended, and the Federal Constitution, First and Fourteenth Amendments?

II. Whether the proposed law is so vague as to fail to give reasonable notice of its application and is therefore violative of the due process of law clauses of the Fourteenth Amendment to the Federal Constitution and Article I, § 3, of the State Constitution?

III. Whether the proposed law in defining what goods may be sold and what merchants may sell, establishes classifications which bring about a denial of equal protection of the law or constitute special legislation prohibited by § 1 of the Fourteenth Amendment to the Federal [[Orig. Op. Page 3]] Constitution or Article I, §§ 3 and 12 of the State Constitution?

The contention that the Maryland Sunday Closing Laws violated constitutional provisions prohibiting state support of a religious establishment or interference with the free exercise of religion was rejected by the court inMcGowan v. Maryland, supra, upon a determination that the underlying purpose of the laws was simply,

". . . to compel a day of rest from work, permitting only activities which arenecessary or recreational. . . ." (Quoting from McGowan v. State, 220 Md. 117, 151 A. (2d) 156 (1958). (Emphasis supplied.)

Thus the court followed precedent described by Mr. Justice Field inSoon Hing v. Crowley, 113 U.S. 703, 710, 28 L.Ed. 1145, 5 S.Ct. 730 (1885), as follows:

". . . Laws setting aside Sunday as a day of rest are upheld, not from any right of the government to legislate for the promotion of religious observances, but from its right to protect all persons from the physical and moral debasement which comes from uninterrupted labor. Such laws have always been deemed beneficent and merciful laws, especially to the poor and dependent, to the laborers in our factories and workshops and in the heated rooms of our cities; and their validity has been sustained by the highest courts of the States."

Similarly, the constitutionality of the present Sunday closing law in Washington (chapter 249, Laws of 1909), was upheld by our own state supreme court inState v. Grabinski, 33 Wn. (2d) 603, 206 P. (2d) 1022 (1949), based upon the following reasoning:

"The statute which the appellant was convicted of violating makes no reference to the Sabbath, but prohibits certain activities on the first day of the week; it has been upheld by this court, not as an implementation of the Fourth Commandment, but as a proper exercise of the police power. As was said inState ex rel. Walker v. Judge, 39 La. Ann. 132, 139, 1 So. 437 (quoted inSeattle v. Gervasi, supra, p. 433) [144 Wash. 429, 258 Pac. 328 (1927)]:

[[Orig. Op. Page 4]]

"'There exists a remarkable consensus of authority that the establishment of a compulsory day of rest in each week is a legitimate exercise of the police power.'

"Such legislation as that under consideration should be regarded as day-of-rest legislation rather than as Sabbath or Sunday closing laws. It is clear from a reading of the opinion in theGervasi case that, had the legislature selected the second, the third, or any other day of the week, the decision would have been the same."

Section 4 of Senate Bill 175, presently under consideration, provides:

"The purpose of this . . . act is to promote the health, recreation, and welfare of the people of this state . . ."

Nothing expressed therein contains any suggestion that the proposed law is in any way motivated by a purpose of supporting a religious establishment or interfering with the free exercise thereof. Accordingly, on authority of McGowan v. Maryland, supra, and State v. Grabinski, supra, we conclude that Senate Bill 175 would not violate the provisions of Article I, § 11 of the Washington Constitution or Amendments I and XIV of the United States Constitution.

II.

The second constitutional issue presented by your inquiry is whether section 1 of the proposed law in exempting the sale of sporting goods ". . . at a recreational facility where the sale of sporting goods is necessary to complete a form of recreation at that facility . . ." is unconstitutionally vague. However, the issue is resolved simply by stating that reasonable business men know or can find out what sporting goods are incidental to the use of any particular recreation facility.

The supreme court resolved this vagueness objection to an analogous provision contained in the Maryland Sunday Closing Law, in McGowan v. Maryland, supra, by stating at page 428:

"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 [[Orig. Op. Page 5]] 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 or by simply making a reasonable investigation at a nearby bathing beach or amusement park within the county. SeeUnited States v. Harriss, 347 U.S. 612, 617-618, [98 L.Ed. 989, 996, 997, 74 S.Ct. 808]. Under these circumstances, there is no necessity to guess at the statute's meaning in order to determine what conduct it makes criminal. Connelly v. General Constr. Co. 269 U.S. 385, 391 [70 L.Ed. 322, 328, 46 S.Ct. 126]. . . ." (Emphasis supplied.)

III.

The third issue presented is whether the proposed law constitutes a denial of equal protection as to the classification of (a) commodities permitted to be sold; or (b) types of business permitted to be operated.

(a) Commodities permitted to be sold are:

(1) Novelties and souvenirs (§ 1, supra);

(2) Sporting goods incident to a recreational activity (§ 1, supra);

(3) Prepared meals (§ 1, supra);

(4) Items sold for charitable purposes (§ 2, supra);

(5) Items sold for funeral or burial purposes (§ 2, supra);

(6) Real property, and items sold as part of or in conjunction with the sale of real property (§ 2,supra); and

(7) All other items not specifically prohibited by § 1, supra (this as a result of application of two well ‑ established maxims of statutory construction, expressio unius est exclusio alterius and ejusdem generis. See, 2 Sutherland, Statutory Construction, 3rd ed., §§ 4909, 4915).

Item (6), real property, is also excepted from the prohibitions contained in our present Sunday closing statute. Our supreme court in [[Orig. Op. Page 6]] Motor Car Dealers' Ass'n v. Haines Co., 128 Wash. 267, 222 Pac. 611 (1924), held that prohibiting the sale of personal property while permitting the sale of real property was not a violation of the equal protection clauses of the state or federal constitution.

In regard to item (4), sales for charitable purposes, research reveals that most Sunday closing laws in other states except from general prohibitions, sales relating to a charitable purpose. See the appendix to Mr. Justice Frankfurter's concurring opinion inMcGowan v. Maryland, supra, wherein he sets out the pertinent laws of the several states in graphic form. Litigation involving this classification is very sparse and is generally related only to what items are defined as charitable in nature. Cf.State v. Grabinski, supra, pp. 612-613.

The problem is foreclosed by the proposed bill, since it provides in § 2, "Any sale or sales of a charitable . . . purpose shall be exempt from this act." Any litigation resulting from this section will involve only the factual question of whether a particular sale is for a charitable purpose. If the factual answer is yes, the sale will be proper. It is manifestly in the interest of the health and welfare of the people for the state to promote charity. There is no discrimination as to who may sell for charitable purposes. Hence the classification is valid, for ". . . The constitutional [equal protection] safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective." McGowan v. Maryland, supra, p. 425.

Accord, classification (5), items sold for funeral or burial purposes ‑-obviously relevant to the protection of the health and general welfare of the people (the express purpose of the proposed law under § 4, supra);

In the case of classifications (1), (2), and (3) novelties and souvenirs, sporting goods incident to a recreational activity, and prepared meals, the following language of the supreme court in McGowan v. Maryland, supra (at pp. 426-427) is pertinent:

"It would seem 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; that some [[Orig. Op. Page 7]] people will prefer alcoholic beverages or games of chance to add to their relaxation; that newspapers and drug products should always be available to the public.

"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. SeeSalsburg v. Maryland, 346 U.S. 545, 552-553 [98 L.Ed. 281, 288, 289, 74 S.Ct. 280];Kotch v. Board of River Port Pilot Comm'rs, supra [330 U.S. 552, 91 L.Ed. 1093, 67 S.Ct. 910]. Likewise, the fact that these exemptions exist and deny some vendors and operators the day of rest and recreation contemplated by the legislature does not render the statutes violative of equal protection since there would appear to be many valid reasons for these exemptions, as stated above, and no evidence to dispel them."

While to some extent the exempt items under the Maryland law differ from those exempt (i.e., may be sold on Sunday) under the proposed Washington law, it is evident that such things as souvenirs, sporting goods incident to a recreational activity, and prepared meals may be deemed ". . . necessary . . . for the enhancement of the recreational atmosphere of the day." In other words the sale of these items on the day of rest (like the sale of items necessary for the health and physical welfare of the people) conforms with the stated legislative purpose and plan rather than detracting from it.

We believe, therefore, that each of the first six classifications of commodities above enumerated, which may be sold on Sunday under the proposed law, constitutes a constitutionally valid classification in conformity withMotor Car Dealers' Ass'n v. Haines Co., supra (in the case of real versus personal property) andMcGowan v. Maryland, supra (in the case of other items necessary for protection of health and welfare generally and through the enhancement of recreational pursuits particularly).

Classification (7), all other items not specifically prohibited by § 1, is similarly sustainable. The applicable rule of law is stated by the United States Supreme Court in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 81 L.Ed. 203, 57 S.Ct. 578 (1937), (a case dealing with a Washington statute providing minimum wages for women) as follows:

[[Orig. Op. Page 8]]

". . . The argument that the legislation in question constitutes an arbitrary discrimination, because it does not extend to men, is unavailing. This Court has frequently held that the legislative authority, acting within its proper field, is not bound to extend its regulation to all cases which it might possibly reach. The legislature 'is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be clearest.' If 'the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.' There is no 'doctrinaire requirement' that the legislation should be couched in all embracing terms. . . . [Citing cases.] This familiar principle has repeatedly been applied to legislation which singles out women, and particular classes of women, in the exercise of the State's protective power. . . . [Citing cases.] Their relative need in the presence of the evil, no less than the existence of the evil itself, is a matter for the legislative judgment."

(b) With regard to classification as to types of business permitted to be operated on Sunday under Senate Bill 175, of course any dealer in commodities which may be sold on Sunday may operate on that day to the extent of selling those commodities. What we have said thus far concerning the validity of commodity classification will suffice to sustain allowing dealers in those commodities to remain open on Sunday.

However, there remain three additional classification problems to be considered. Over and above the commodities which may be sold on Sunday by anyone dealing in them, § 1 allows the sale on Sunday of:

"(12) Fresh meats, produce, bakery goods, and groceries, . . . in a store which does not employ or is not operated by more than two persons, including the proprietor thereof; . . ."

And § 2 allows the

". . . sale . . . of . . . any agricultural item, produce, or commodity sold by a person who is the [[Orig. Op. Page 9]] grower thereof, or any occasional sale of any item named herein by a person not engaged in the business of selling such item . . ."

It is notable that the Maryland Sunday Closing Law which was upheld inMcGowan v. Maryland, supra, provided:

". . . that nothing in this subtitle shall be construed to prevent the operation of any retail establishment on Sunday, the operation of which does not entail the employment of more than one person, not including the owner or proprietor. . . ." 27 Md. Ann. Code, § 521 (b).

On the basis of the decision of the United States Supreme Court upholding this provision against an attack based upon the equal protection clause of Amendment 14 to the United States Constitution, we conclude that § 1 (12) of Senate Bill 175,supra, exempting the sale of fresh meats, produce, bakery goods, and groceries in a store which does not employ or is not operated by more than two persons, establishes a constitutionally valid classification. See, also, the Court's discussion of a similar Pennsylvania statute in Two Guys v. McGinley, 366 U.S. 582, 6 L.Ed. (2d) 551, 81 S.Ct. 1135 (1961), as follows:

"It was within the power of the legislature to have concluded that these businesses were particularly disrupting the intended atmosphere of the day because of the great volume of motor traffic attracted, the danger of their competitors also opening on Sunday and their large number of employees. 'Evils in the same field may be of different dimensions and proportions, requiring different remedies. . . . Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. . . . The legislature may select one phase of one field and apply a remedy there, neglecting the others.' Williamson v. Lee Optical of Oklahoma, Inc. 348 U.S. 483, 489, 99 L.Ed. 563, 573, 75 S.Ct. 461."

Finally, so much of § 2, supra, as would allow the sale on Sunday

". . . of . . . any agricultural item, produce, or commodity sold by a person who is the grower thereof or any occasional sale of any item named herein by a person not engaged in the business [[Orig. Op. Page 10]] of selling such item . . ."

is also, in our opinion, a constitutionally valid classification. Neither sales of produce by growers thereof, nor occasional sales of any item by persons not engaged in the business of selling such item, are likely to detract from the restful atmosphere of the day of rest. Again, as we have said before herein, classification may be based upon legislative recognition of "degrees of harm" and the legislature

". . . may confine its restrictions to those classes of cases where the need is deemed to be the clearest." West Coast Hotel Co. v. Parrish, supra.

By way of summary, Senate Bill 175, should it become law, would be in our opinion a proper exercise of the police power by the legislature in the interest of the health, welfare and recreation of the people. It would be within state and federal constitutional requirements of due process and freedom of religion.

The persons regulated in the classes which are established through prohibited and permitted sales satisfy the requirements of equal protection as enunciated by the courts.

Of course it is possible that some attorneys might visualize some other constitutional objection to the proposed law. However, we cannot presently conceive of any such other objection having merit.

We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General