Rutledge v. Gaylord's, Inc.

Jordan, Justice,

dissenting.

I dissent because in my opinion this Act passes constitutional muster both state and federal.

1. The majority opinion recites the vital portions of the Act and in one majestic swoop concludes that it "is as patently discriminatory as the Act of 1967 (Ga. L. 1967, p. 479 et seq.) which was held unconstitutional in Hughes v. Reynolds, 223 Ga. 727 (157 SE2d 746).”

*702In my opinion we should take a more positive approach to the legislation and measure its constitutional status in the light of more than one previous opinion of this court.

It is axiomatic that in construing the constitutionality of an Act of the legislature every presumption will be made in favor of its constitutionality. Any conflict between the statute and the Constitution must be clear and palpable. As Justice Hall stated in the recent case of Petty v. Hospital Authority of Douglas County, 233 Ga. 109, 110 (210 SE2d 317), "This presumption of validity is more than a pious formula to be sanctimoniously repeated at the opening of an opinion and forgotten at the end. It is fortified by the principle that absent a debilitating constitutional flaw in the Act, this court must effectuate the common will expressed in the purpose of the legislation. To go beyond this and review with a hostile eye or an adverse mind is to usurp a power which our Constitution has lodged in our legislature.”

Let us then view this Act in the light of this presumption of validity. Candor requires an admission that the Act is far from perfect. It is safe to assume that in this complicated area of public policy as it pertains to the regulation of business in a highly commercialized society that no legislation can be drafted which will mete out perfect and equal justice to each individual in the society. But such perfection is not a constitutional requirement, as courts have many times held.

On the equal protection issue this Act will squarely clear with the Federal Constitution under the opinion of the Supreme Court of the United States in McGowan v. Maryland, 366 U. S. 420 (81 SC 1101, 6 LE2d 393). The same argument advanced by the appellees here was advanced in that case which attempted to strike down a Maryland statute prohibiting the retail sale of merchandise in that state with certain exceptions. The Supreme Court said: "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 *703in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only 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. See Kotch v. Board of River Port Pilot Comm’rs., 330 U. S. 552; Metropolitan Casualty Ins. Co. v. Brownell, 294 U. S. 580; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61; Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96. 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 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.”

This Act will also square with the equal protection provision of the Georgia Constitution. Code Ann. § 2-102. "The provision of the Georgia Constitution which declares that protection to persons and property shall be impartial and complete is the equivalent of a declaration that no person shall be denied the equal protection of the laws.” Dansby v. Dansby, 222 Ga. 118, 121 (149 SE2d 252). The rules by which this Act must be tested are set forth in Georgia So. & Fla. R. Co. v. Adkins, 156 Ga. 826, 831 (120 SE 610) as follows: "1. The equal-protection clause of the fourteenth amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, *704and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.”

The appellees, while pointing out some inequalities in the Act, fall far short of showing that the Act is "essentially arbitrary” and rests upon no "reasonable basis,” or results in an invidious classification. See Wilder v. State, 232 Ga. 404 (207 SE2d 38).

In Berta v. State, 223 Ga. 267 (154 SE2d 594), this court upheld the conviction of a person for selling two decks of cards on Sunday, holding that the amendment of Code§ 26-6905 by Ga. L. 1949, pp. 1007-1009 (Code Ann. § 26-6915 et seq.) providing for exceptions to the statute, does not violate the equal protection clause of the State Constitution. The opinion relied heavily on McGowan v. Maryland, supra, and other cases. At the next term this court struck down the Sunday Business Activities Act of 1967 in Hughes v. Reynolds, 223 Ga. 727 (157 SE2d 746), the case relied upon by the majority opinion. The court in Hughes did not cite either Berta or McGowan. In my opinion the present Act is different in many material aspects from the Act struck down in Hughes. As a matter of fact it corrects many of the deficiencies pointed out in the 1967 Act. Being much broader in scope and purpose, it is immune from this court’s critical appraisal of the Act of 1967.

The express purpose of the Act is to promote the health, recreation, welfare, repose and religious liberty of the citizens of Georgia by the closing of certain businesses one day a week. This Act attempts to accomplish these goals, though imperfectly, by providing certain exemptions. All of the stated exemptions deal with works of charity and/or necessity and are stated with sufficient *705clarity to be reasonably understood. They allow the operation of businesses essential to the health, welfare, and recreation of the people for seven days a week. To determine the essentiality of businesses needed to accomplish the stated purposes of the Act is a proper legislative function. The legislature has made this classification on a reasonable and not an arbitrary basis. Each exemption can be justified in the light of this scrutiny.

2. The Act does not aid religionists in violation of the State or Federal Constitution. This is not a Sunday "Blue Law.” Without regard to any church or religion it provides for a "Common Day of Rest.” Such day of rest can be from midnight on Friday to midnight on Saturday or from midnight on Saturday to midnight on Sunday. The court can take judicial notice of the fact that either of thesé two days is the public day of worship for the vast majority of the citizens of this state. That some isolated sect or individual might choose to worship on a different day does not subject the Act to attack for invidious discrimination.

The trial court erred in holding the Act unconstitutional and I would reverse that judgment.

Therefore, I respectfully dissent.

I am authorized to state that Justice Hall joins in this dissent.