Wallace, Calvin C.

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University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 32 | Number 4 Article 106-1-1954Municipal Corporations -- Sunday ClosingOrdinances -- Reasonableness of ClassificationCalvin C. WallaceFollow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationCalvin C. Wallace, Municipal Corporations -- Sunday Closing Ordinances -- Reasonableness of Classification, 32 N.C. L. Rev. 552 (1954).Available at: http://scholarship.law.unc.edu/nclr/vol32/iss4/10NORTH CAROLINA LAW REVIEWMunicipal Corporations-Sunday Closing Ordinances-Reasonableness of ClassificationDefendant, operator of a curb market in the City of High Point, kepthis place of business open on Sunday, July 26, 1953, selling tomatoes,peaches, and toilet paper. He was found guilty of violating an ordinanceof the City of High Point which made it unlawful for a place of businessto open on Sunday for selling or offering for sale goods, wares, mer-chandise or services, but which excepted particular kinds of businessesfurnishing certain enumerated articles of merchandise.'On appeal, defendant contended that the basis of classification in theordinance was arbitrary, unreasonable, and discriminatory in that thebusinesses permitted to remain open on Sunday sold certain articles ofmerchandise similar to those which he sold and were therefore his com-petitors. The Supreme Court of North Carolina, in State v. Towery,2held that defendant was in error in attempting to make competitionbetween classes the test, rather than discrimination within a class, andthat he had shown "no arbitrary or unreasonable exercise of the policepower in the classification and selection of businesses to be closed onSunday."'The ordinance challenged in the Towery case is a common type ofSunday closing ordinance, containing a provision stating generally thatall businesses will close on Sunday, with a second provision exemptingcertain types of businesses from the operation of the first. A necessaryelement of ordinances of this type is the classification of businesses, andsuch ordinances have been attacked as unconstitutional on the groundthat the classification applied was arbitrary and unreasonable, or thatit was discriminatory. 4  To be a valid classification, all those similarlyI Section 17.32 of The Code of the City of High Point, as amended June 17,1952, which reads in part: "It shall be unlawful for any place of business to remainopen for the purpose of selling or offering for sale goods, wares, merchandise orservices between the hours of midnight Saturday and midnight Sunday, except asfollows: hotels; boarding houses; restaurants; cafes, delicatessen and sandwichshops furnishing meals and selling bread, cooked or prepared meats incidental tothe operation of such business; filling stations furnishing petroleum products andautomobile accessories; garages furnishing repair work or storage; ice cream orconfectionary stores, furnishing ice cream, cigars, tobacco, nuts and soft drinksonly; cigar stands and newsstands furnishing cigars, tobacco, candies, nuts, news-papers, magazines and soft drinks only; drug stores furnishing medical or surgicalsupplies, cigars, tobacco, ice cream, candies, nuts, soft drinks, newspapers andmagazines; ice dealers, for the manufacture and sale of ice; dairies, for the manu-facture and sale of dairy products; bakeries, for the manufacture, sale and deliveryof bakery products. . . ." Quoted in State v. Towery, 239 N. C. 274, 275, 79 S. E.2d 513, 514 (1954).2239 N. C. 274, 79 S. E. 2d 513 (1954).Id. at 278, 79 S. E. 2d at 516.'In addition to this type of Sunday closing ordinance, two other types havebeen challenged on the ground of arbitrary and unreasonable classification: (1)Where there is a general provision that all businesses must close on Sunday and asecond provision exempting the sale of certain articles from the operation of thefirst; (2) Where there is no general closing provision and the ordinance requires[Vol. 32NOTES AND COMMENTsituated must receive equal treatment, and the classification must notbe arbitrary or unreasonable.5 It is not necessary, however, that it bemade with "abstract symmetry" or with "mathematical nicety." 6 Classi-fication in Sunday ordinances will generally be upheld if it rests uponany reasonable basis, and if it has any reasonable relation to the publichealth, morals, safety, or general welfare.7Ordinances requiring businesses in general to close on Sunday, butexempting certain enumerated kinds of businesses, have generally beenheld to be reasonable and not arbitrary, 8 and a reasonable basis for adistinction between businesses is usually found.9 In State v. Medlin,'0an ordinance exempting drug stores for the sale of drugs all day onSunday, and 'during certain specified hours on Sunday for the sale of"mineral waters, soft drinks, cigars and tobacco only," was held by theNorth Carolina court to be reasonable on the ground that since drugstores were open for the sale of drugs and medicines all day on Sunday,as a matter of necessity, they could be permitted to sell, during the speci-fied hours, articles of common use which are to many persons "quasi-necessities."'" Some courts have held, however, that such distinctionsonly a particular type of business to close. See Broadbent v. Gibson, 105 Utah 53,140 P. 2d 939 (1943).City of Springfield v. Smith, 332 Mo. 1129, 19 S. W. 2d 1 (1929) ; State v.Trantham, 230 N. C. 641, 55 S. E. 2d 198 (1949); 6 MCQUILLIN, MUNICIPALCOR'RATIOS § 24.192 (3rd ed., 1949).People v. Friedman, 302 N. Y. 75, 96 N. E. 2d 184 (1950).State v. McGee, 237 N. C. 633, 75 S. E. 2d 783 (1953)."Lane v. McFadyen, - Ala. _ 66 So. 2d 83 (1953) ; Richman v. Board ofCommissioners of City of Newark, 122 N. J. L. 180, 4 A. 2d 501 (1939) ; Peoplev. Friedman, 302 N. Y. 75, 96 N. E. 2d 184 (1950) ; State v. Sopher, 25 Utah 318,71 Pac. 482 (1903) ; State v. Nichols, 28 Wash. 628, 69 Pac. 372 (1902).I In Ex parte Sumida, 177 Cal. 388, 170 Pac. 823 (1918), an ordinance requir-ing businesses to close on Sunday, excepting (among others) bakeries, liverystables, drug stores, confectioneries, ice cream parlors and garages, was held notto be discriminatory, since in the case of the businesses excepted it was the cus-tom to keep them open, as well as to some extent necessary to do so, since personsmight need something from these businesses which they could not prepare for onSaturday nor wait for until Monday.In Lane v. McFadyen, - Ala. -, -, 66 So. 2d 83, 88 (1953), a statuteprohibiting a "merchant or shopkeeper" from keeping open on Sunday, druggistsexcepted, was found to be a reasonable classification and not clearly arbitrary, thecourt stating that "in order to have a place where drugs might be obtained onSunday, a bona fide druggist should be permitted to dispose of those articles usuallyand customarily sold in drug stores other than drugs." For discussion of thisstatute, see Comment, 5 ALA. L. Rzv. 349 (1953).10 170 N. C. 682, 86 S. E. 597 (1915).'I It was further stated that it is not unreasonable to forbid other businessesto open even during the specified hours on the ground that "people might there con-gregate to the public scandal and to the dissatisfaction of the public, who expect adecent, reasonable observance of Sunday." State v. Medlin, 170 N. C. 682, 684,86 S. E. 597, 598 (1915).A reasonable basis has generally been found for ordinances singling out a par-ticular class of business and prohibiting its operation on Sunday. People v. Krotkie-wicz, 286 Mich. 644, 282 N. W. 852 (1938) (sale and distribution of groceries) ;Komen v. City of St. Louis, 316 Mo. 9, 289 S. W. 838 (1926) (bakeries) ; State v.Loomis, 75 Mont. 88, 242 Pac. 344 (1925) (dance halls) ; Mazzarelli v. City of19541NORTH CAROLINA LAW REVIEWbetween businesses are arbitrary and unreasonable and not a valid exer-cise of the police power.12  There must be a valid and substantial rea-son for the law to operate only upon certain classes rather than uponall, and it is not sufficient simply because all within a certain class areaffected in the same way. 13Where classification in a Sunday ordinance permits a business toremain open on Sunday and sell articles of merchandise similar to thosesold by a business prohibited from opening, is the ordinance discrimina-tory and unconstitutional? The more recent cases have generally foundsuch ordinances to be arbitrary and unreasonable. 14  Such businessesare in competition with each other, are similarly situated with respectto the subject matter of the ordinance, and it is declared to be unrea-sonable and arbitrary to allow sales by an exempted business and denythat privilege to a business required to close.1r Where such ordinanceshave been upheld, the courts reason that as long as all of one class areaffected equally under the ordinance, it is reasonable and not arbitrary.1"Elizabeth, 11 N. J. Misc. Rep. 150, 164 AtI. 898 (Sup. Ct. 1933) (butcher shop) ;Ex parte Johnson, 77 Okla. Crim. 360, 141 P. 2d 599 (1943) (barber shop). Forcitation of cases sustaining similar ordinances and also cases holding them invalid,see 6 McQuiLLIx, MUNICIPAL CORPORATIONS § 24.197 (3rd ed., 1949)." Henderson v. Antonacci, 62 So. 2d 5 (Fla. 1952) (no reason why the health,morals, or general welfare would be better safeguarded by requiring used cardealers to close than by allowing them to operate along with proprietors of touristattractions) ; City of Mt. Vernon v. Julian, 369 I1. 447, 17 N. E. 2d 52 (1938)(no reason why the public welfare was served by closing a grocery store while aconfectionery store remained open)." Henderson v. Antonacci, 62 So. 2d 5 (Fla. 1952).In Elliott v. State, 29 Ariz. 389, 242 Pac. 340 (1926), a closing ordinance washeld to grant special privileges and immunities to certain classes of citizens whiledenying them to others without legal excuse, the court stating that it is not legiti-mate discrimination to close groceries, shoe stores, and hardware stores, whileallowing jewelers, dealers in second-hand goods and tailoring establisbments toopen without restriction."'Deese v. City of Lodi, 21 Cal. App. 2d 631, 69 P. 2d 1005 (1937) ; Allen v.City of Colorado Springs, 101 Colo. 498, 75 P. 2d 141 (1937) ; City of Mt. Vernonv. Julian, 369 Ill. 447, 17 N. E. 2d 52 (1938) ; Arrigo v. City of Lincoln, 154 Neb.537, 48 N. W. 2d 643 (1951) ; Broadbent v. Gibson, 105 Utah 53, 140 P. 2d 939(1943).1 Arrigo v. City of Lincoln, 154 Neb. 537, 48 N. W. 2d 643 (1951). There anordinance requiring grocery stores and meat markets to close on Sunday, excepting,among other businesses, drug stores, cigar stores, ice cream parlors, and fruit stores,and providing that they should not sell groceries or articles ordinarily sold froma grocery store except fresh fruits, ice, bread and milk, 'was held invalid to theextent that it required grocery stores to close on Sunday, excluded them fromexceptions permitting similar businesses to be open for necessary purposes, andbarred them from the sale of fruits, ice, bread and milk.A statute discriminates between persons similarly situated, which permits con-fectionery stores to open on Sunday and sell soft drinks and confections whilegrocery stores selling the same items have to close. Broadbent v. Gibson, 105Utah 53, 140 P. 2d 939 (1943).There is no basis for the discrimination by an ordinance under which a drugstore can sell staple groceries on Sunday, while the operator of a grocery storeis prohibited from selling the same items. Allen v. City of Colorado Springs, 101Colo. 498, 75 P. 2d 141 (1937).16 State v. Nicholls, 77 Ore. 415, 151 Pac. 473 (1915) (defendant contended(Vol. 321954] NOTES AND COMMENT 555In the prior North Carolina case of State v. TranthamY' the courtindicated that a Sunday ordinance might be unreasonably discriminatoryif under it there was competition between a permitted and a prohibitedbusiness in the same articles of merchandise, the permitted businessbeing allowed to sell them on Sunday. The court there stated, in hold-ing that defendant could not challenge the constitutionality of an ordi-nance' 8 similar to the one in the Towery case, that it was not made toappear that defendant kept in stock for sale one of the enumeratedsalable articles,19 and that no competitor of his had been accorded aprivilege which was denied to him. Only where there is discriminationbetween those of a particular group or class who are similarly situatedwith reference to the subject matter of the legislation is the ordinanceunconstitutional .20Under the Towery case, however, classification is declared not dis-criminatory although articles of merchandise permitted to be sold onSunday by an exempted business are also sold by a business prohibitedfrom opening on Sunday.2 1 The court relies on State v. Medlin, wherethat his cigar store, selling cigars and candy, had to close on Sunday while underthe same statute a drug storemight open and sell the same items; yet the statutewas held reasonable since it applied to all persons coming within the prohibitedclass, and the businesses excepted "minister to wants more imperative") ; Richmanv. Board of Commissioners of City of Newark, 122 N. J. L. 180, 4 A. 2d 501 (1939)(ordinance was attacked as discriminatory and unreasonable in prohibiting theopening of grocery stores and not affecting other merchants, many of whom soldfoodstuffs not classified as groceries, but was found valid since it was general andapplied to all grocery stores in the city without exception) ; State v. Cranston, 59Idaho 561, 85 P. 2d 682 (1938) (statute limiting exemptions to places prinmarilyestablished for the sale of certain necessaries or where the articles are made orproduced is not unjust discrimination, since it is not necessary to exempt all busi-nesses where such articles night be sold).11230 N. C. 641, 55 S. E. 2d 198 (1949).IS The ordinance had a general closing provision with a proviso that it did notapply to "garages and filling stations, drug stores, cigar stores, confectionery stores,shops, stands and bakeries which shall be allowed to operate on Sunday for thesale of gas and oil, drugs, medicines, druggist sundries, cigars, tobacco, fruits, ice,ice cream, confections, nuts, soda and mineral waters, bread, pies, cakes, news-papers, periodicals, and for no other purpose." Section 199 of the Code of the Cityof Asheville, as quoted in State v. Trantham, 230 N. C. 641, 642, 55 S. E. 2d 198,199 (1949).IS The defendant had sold groceries on Sunday."0 State v. Trantham, 230 N. C. 641, 55 S. E. 2d 198 (1949). Cf. State v. McGee,-237 N. C. 633, 75 S. E. 2d 783 (1953), where the defendant, operator of a motionpicture theater, challenged the validity of a city ordinance permitting theaterscharging a fee to operate only during specified hours on Sunday, on the ground itdiscriminated against him in that it permitted radio and television stations tooperate while he was required to be closed. The court, after stating that defendantdid not claim the ordinance discriminated against him insofar as it applied to per-sons similarly situated and engaged in the theater business, held that the motionpicture theater was an entirely different business from a radio or television station,and further, that no fee was charged to listen to the radio or watch a television show."1 It would seem there is room for argument as to whether a grocery storeshould be in a different class from a drug store, in regard to articles of merchan-dise which they both ordinarily sell. Could it not be argued that the two busi-nesses are similarly situated with regard to those articles?NORTH CAROLINA LAW REVIEWthe ordinance construed excepted drug stores for the sale of "drugs,medicines, mineral waters, soft drinks, cigars and tobacco only," but theordinance in the principal case excepted drug stores furnishing enu-merated items, not expressly limiting them to sales of such items only.Whether a drug store could sell staple groceries on Sunday under theordinance the court does not decide, and it is open to question whetherthe court would hold an ordinance discriminatory under such circum-stances.Ordinances such as the one considered in the Towery case seem toplace more significance upon the name of the business than upon whatbusiness it in fact does. Where an ordinance excepts drug stores fromits operation, for instance, should a store still be considered a drug storealthough its primary business consists of the sale of articles other thandrugs and medicines? It has been stated that at the present time "a'drug store' could mean anything from a place where 'drugs alone aresold to one where anything from an aspirin tablet to an automobile couldbe purchased.22  It is submitted that the better Sunday closing ordi-nance is one with a general closing provision and which does not exceptparticular kinds of businesses from its operation, but rather excepts onlyenumerated articles or items which can be sold on Sunday.23CALVIN C. WALLACENegotiable Instruments-Defenses of Lack and Failure ofConsideration as Affected by SealIn an action on promissory notes under seal, it was held that if the'defendant could show a total failure of consideration, this would be agood defense, since the presumption of consideration arising from theseal is rebuttable.'The origin of the seal is traceable to times when few people couldwrite, and accordingly identified themselves by the use of a distinctive2' See Henderson v. Antonacci, 62 So. 2d 5, 10 (Fla. 1952) (concurring opinion).23 Statutes with this type of classification have generally been upheld. State v.Justus, 91 Minn. 447, 98 N. W. 325 (1904) ; State v. Diamond, 56 N. D. 854, 219N. W. 831 (1928) ; People v. Zimmerman, 48 Misc. Rep. 203, 95 N. Y. Supp. 136(Sup. Ct. 1904).Under such a statute, it has been said that where tobacco and candy are exceptedfrom its operation, a large department store could open for the sale of those items,although there is doubt whether it would be economically feasible for them to doso. State v. Grabinski, 33 Wash. 2d 603, 206 P. 2d 1022 (1949).Such an ordinance has been held arbitrary in permitting the sale of a can ofbeer on Sunday, while prohibiting the sale of a can of orange juice or coffee.Gronlund v. Salt Lake City, 113 Utah 284, 194 P. 2d 464 (1948)." Mills v. Bonin, 239 N. C. 498 (1954). The distinction between want and failureof consideration should be noted. "Want of consideration embraces transactionsor instances where none was intended to pass, while failure of consideration im-plies that a valuable consideration, moving from obligee to obligor, was contem-plated." In re Killeen's Estate, 310 Pa. 182, 187, 165 At. 34, 35 (1932).(Vol. 32

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Municipal Corporations -- Sunday Closing Ordinances -- Reasonableness of Classification

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