G I SURPLUS STORE, INC., a corporation, Mecklenburg Surplus Company, a corporation, Clark's Charlotte, Inc., a corporation, and Atlantic Mills of N. C., Inc., a corporation, on behalf of themselves and such other persons, firms and corporations as are similarly affected by North Carolina General Statute § 14-346.2, Plaintiffs,
v.
J. Clyde HUNTER, Sheriff of Mecklenburg County, John Hord, Chief, Charlotte Police Department, and G. A. Stephens, Chief, Mecklenburg County Rural Police Department, Defendants.
No. 237.
Supreme Court of North Carolina.
May 23, 1962.*766 Boyle, Alexander & Wade, Charlotte, and Cannon & Wolfe, Greensboro, for plaintiffs-appellants.
John T. Morrisey, Sr., Dockery, Ruff, Perry, Bond & Cobb and G. H. Warlick, Charlotte, for defendants-appellees.
BOBBITT, Justice.
Plaintiffs assert, as their sole ground of attack, that the 1961 Act is "unconstitutionally vague, uncertain and indefinite, in violation of Article I, Section 17, of the North Carolina Constitution and the due process *767 clause of the Fourteenth Amendment to the Federal Constitution."
The term, "law of the land," as used in the cited provision of the North Carolina Constitution, is synonymous with "due process of law," as used in the cited provision of the Federal Constitution. State v. Ballance, 229 N.C. 764, 769, 51 S.E.2d 731, 734, 7 A. L.R.2d 407, and cases cited; State v. Parrish, 254 N.C. 301, 303, 118 S.E.2d 786.
Before considering the ground of attack drawn into focus by plaintiffs' pleading and brief, it seems appropriate to advert to certain well-established principles of constitutional law.
"Undoubtedly, the State possesses the police power in its capacity as a sovereign, and in the exercise thereof, the legislature may enact laws, within constitutional limits, to protect or promote the health, morals, order, safety, and general welfare of society." State v. Ballance, supra, and cases cited. However, "(a)rbitrary interference with private business and unnecessary restrictions upon lawful occupations are not within the police powers of the State." State v. Warren, 252 N.C. 690, 693, 114 S.E.2d 660, 663, and cases cited. "If a statute is to be sustained as a legitimate exercise of the police power, it must have a rational, real, or substantial relation to the public health, morals, order, or safety, or the general welfare." State v. Ballance, supra; Roller v. Allen, 245 N.C. 516, 96 S.E.2d 851, and cases cited; State v. Brown, 250 N.C. 54,108 S.E.2d 74, and cases cited; State v. Williams, 253 N.C. 337, 117 S.E.2d 444.
Municipal ordinances, enacted in the exercise of legislative power conferred by the General Assembly, "prohibiting the pursuit of all occupations generally on Sunday, except those of necessity or charity, have been uniformly held constitutional in this jurisdiction." (Our italics) State v. McGee, 237 N.C. 633, 638, 75 S.E.2d 783, 786, and cases cited. The ordinance considered in State v. McGee, supra, similar to those considered in prior cases, provided "(i)t shall be unlawful to conduct, operate or engage in, or carry on within the City of Charlotte on the Sabbath Day, called `Sunday,' any business" (Our italics) with exceptions thereafter set forth; and it was held that the exceptions were not arbitrary, unreasonable or discriminatory.
The provisions of the 1961 Act, now G.S. § 14-346.2, proscribe, when engaged in on Sunday, conduct which, at all other times, is lawful. The purpose of the 1961 Act, according to the caption, is "to prohibit certain business activities on Sunday." (Our italics) To effectuate its declared purpose, the 1961 Act provides that any person, firm or corporation who, on Sunday, engages in the business of selling or who sells or offers for sale, at retail, any articles of merchandise included within the specified categories, except novelties, toys, souvenirs, and articles necessary for making repairs and performing services, "shall, upon conviction thereof be fined or imprisoned in the discretion of the court." It provides further that "(e)ach separate sale or offer to sell shall constitute a separate offense."
Unlike ordinances and statutes such as the ordinance considered in State v. McGee, supra, the 1961 Act imposes no general ban on business activities on Sunday but applies solely to "certain business activities," to wit, the sale and the offering for sale, at retail, of merchandise within the specified categories. The sale, at wholesale, of merchandise within the specified categories is not proscribed. Nor does the statute affect in any manner the selling or offering for sale of merchandise or other property not included in the specified categories.
Questions suggested by a consideration of the 1961 Act, but not raised by plaintiffs, include the following: Is the classification of the articles that may not be lawfully sold or offered for sale on Sunday arbitrary, unreasonable or discriminatory? Does the 1961 Act manifest a legislative determination that the acts proscribed thereby are inimical to the public health, morals, order, *768 safety or general welfare, when authority is granted to local governing bodies to exempt from its provisions areas subject to their authority? Since it regulates trade, is the 1961 Act a general law within the meaning of Article II, Section 29, of the Constitution of North Carolina, McIntyre v. Clarkson, 254 N.C. 510, 119 S.E.2d 888, when local governing bodies are authorized in effect to repeal it with reference to areas subject to their authority?
We do not pass upon any of the questions posed in the preceding paragraph. The only question for decision on this appeal is whether the 1961 Act is unconstitutional and void on the ground on which plaintiffs attack it. Hudson v. Atlantic Coast Line R.R., 242 N.C. 650, 667, 89 S.E.2d 441.
In Connally v. General Construction Co., 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322, the applicable rule is stated by Mr. Justice Sutherland as follows: "That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law."
"* * * the terms of a criminal statute must be sufficiently explicit to inform those subject to it what acts it is their duty to avoid or what conduct on their part will render them liable to its penalties, and no one may be required, at the peril of life, liberty, or property to guess at, or speculate as to, the meaning of a penal statute." 22 C.J.S. Criminal Law § 24(2) a; 16A C.J.S. Constitutional Law § 580; 14 Am.Jur., Criminal Law § 19; Wharton's Criminal Law and Procedure, Vol. 1, § 18; State v. Hales, 256 N.C. 27, 122 S.E.2d 768, and cases cited therein. True, reasonable certainty is sufficient; and this Court in State v. Hales, supra, held the provisions of the statute then under consideration sufficiently definite to inform "a person of ordinary intelligence with reasonable precision of the acts it prohibits."
A statute, enacted in Missouri and also in Kansas, Sections 563.720, 573.730 RSMo 1959, V.A.M.S.; G.S.1949, 21-955, 21-956, after declaring "(e)very person who shall expose to sale any goods, wares or merchandise, * * * on the first day of the week, commonly called Sunday, shall, on conviction, be adjudged guilty of a misdemeanor and fined not exceeding fifty dollars," provided it "shall not be construed to prevent the sale of any drugs or medicines, provisions or other articles of immediate necessity." (Our italics)
In State v. Katz Drug Company (Mo. 1961), 352 S.W.2d 678, the court held the State's evidence made a case for the jury; that certain of the articles sold by the defendant did not come within the exemption of "articles of immediate necessity"; that, while no comprehensive general definition of "articles of immediate necessity" was given, "articles immediately necessary to carry on work of necessity would surely be included"; (Our italics) and that, when so construed, the statute was not unconstitutional and void on the ground of vagueness and uncertainty.
In State v. Hill (1962), 189 Kan. 403, 369 P.2d 365, the court said: "But the phrase `or other articles of immediate necessity' has no objective meaning. There is no common, generally-understood meaning to this all-embracing term. It becomes meaningful only when applied to a specific article purchased under varying circumstances, which leaves open the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can adequately guard against. It could mean a variety of things to many different people. What may be an article of immediate necessity for one person to purchase on Sunday *769 may be completely immaterial and even unwanted by another. Thus, whether an article is of immediate necessity depends solely upon the subjective judgment of one person based upon that of another. The phrase is so general and indefinite as to embrace not only acts properly and legally punishable, but those which are lawful and not punishable." It was held that the statute was "so vague, indefinite and uncertain that it fails to inform men of common intelligence what conduct on their part will render them liable to its penalties; that they must guess at its meaning and differ as to its application, and that it provides no reasonable definite standard of guilt which apprises them of the nature and cause of the accusation against them in violation of section ten of the bill of rights of the constitution of Kansas, and the fourteenth amendment to the constitution of the United States which provides that no state shall deprive any person of life, liberty or property without due process of law."
In McGowan v. Maryland (1961), 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393, cited by defendant, the Supreme Court of the United States considered a Maryland statute prohibiting, throughout the State, the Sunday sale of all merchandise, with exceptions set forth. While attacked primarily on other grounds, it was asserted that a statutory provision exempting the Sunday retail sale of "merchandise essential to, or customarily sold at, or incidental to, the operation of" bathing beaches, amusement parks, etc., in Anne Arundel County, was unconstitutionally vague. With reference thereto, Mr. Chief Justice Warren said: "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 commerical knowledge or by simply making a reasonable investigation at a nearby bathing beach or amusement park within the county. (Citation) Under these circumstances, there is no necessity to guess at the statute's meaning in order to determine what conduct it makes criminal. (Citation) Questions concerning proof that the items appellants sold were customarily sold at, or incidental to the operation of, a bathing beach or amusement park were not raised in the Maryland Court of Appeals, nor are they raised here. Thus, we cannot consider the matter. (Citation)"
Since the 1961 Act imposes no general ban on business activities or upon the sale or offering for sale of articles of property other than those in the specified categories, the exceptive provisions necessarily refer to articles within the specified categories. Under what circumstances may articles within the specified categories be considered novelties or toys or souvenirs? Under the exceptive provisions, articles of merchandise in the specified categories may be sold or offered for sale if and when necessary for making repairs and performing services. Obviously, "hardware, tools, paints, building and lumber supply materials" are necessary for use in making repairs. Too, they are necessary and in frequent use in the performance of services. Indeed, under particular circumstances, most, if not all, of the merchandise within the specified categories may be necessary for the performance of services. Neither the nature of the repairs to be made nor the character of the services to be rendered is defined. Nor is there any reference to the time when such repairs are to be made or services performed.
In our view, what is stated in State v. Hill, supra, quoted above, is particularly applicable to our 1961 Act; and the conclusion reached is that its provisions are so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. Hence, we are of opinion, and so decide, that, as contended by plaintiffs, the 1961 Act is unconstitutionally vague, uncertain and indefinite.
Defendants suggest, citing State v. Medlin, 170 N.C. 682, 86 S.E. 597, that the exceptive provisions of the 1961 Act might be declared void, thus leaving the prohibitory provisions intact and in full force. Suffice to say, the prohibitory provisions and the *770 exceptive provisions refer to the same articles of merchandise and are interrelated and inseparable parts of the 1961 Act.
Defendants cite Carolina Amusement Co. v. Martin (1960), 236 S.C. 558, 115 S.E.2d 273, and Mandell v. Haddon (1961), 202 Va. 979, 121 S.E.2d 516. We have read and considered, with interest and profit, the excellent opinions in these cases. However, the statutes considered and questions presented differ materially from our 1961 Act and the question presented with reference thereto on this appeal.
In view of the conclusion reached, we need not consider plaintiffs' further contention that the 1961 Act is "unconstitutionally vague, uncertain and indefinite," for the reason it fails, in terms, to declare the prohibited acts "unlawful," and fails, in terms, to specify whether a violation thereof is a misdemeanor or a felony.
"Undoubtedly, it is the well established general rule that the constitutionality of an Act cannot be challenged in a suit to enjoin its enforcement. (Citations) However, the exception to the rule is as well established as the rule itself. (Citation) An Act will be declared unconstitutional and its enforcement will be enjoined when it clearly appears either that property or fundamental human rights are denied in violation of constitutional guarantees. (Citations)" Roller v. Allen, supra; Orange Speedway, Inc. v. Clayton, 247 N.C. 528, 101 S.E.2d 406.
It is noted that Judge Pless, for the reasons stated in his order, continued the temporary restraining order in effect pending decision on this appeal; and that defendants now join with plaintiffs in asking that the Court now pass upon the constitutionality of the 1961 Act. Under the circumstances, this Court deems it appropriate to do so.
Having reached the conclusion that the 1961 Act is "unconstitutionally vague, uncertain and indefinite," the judgment of the court below, but not the order continuing the temporary restraining order in effect pending decision on this appeal, is reversed; and the cause is remanded for judgment in accordance with the law as stated herein.
Reversed and remanded.
SHARP, J., took no part in the consideration or decision of this case.