Arlan's Department Stores, Inc. v. Attorney General

Kavanaqh,. C. J.

(concurring), I cannot accept the disposition of the first issue in this case, namely,, whether PA 1962, No 128 (CL 1948, § 435.51 et seq. [Stat Ann 1963 Cum Supp § 18.857(1) et seq.]), is. a valid and proper exercise by the legislature of its. police power.

Justice Adams’ opinion relies upon the fact that the Michigan legislature has provided for a flexibility in its closing law which will allow more freedom to the merchants affected than did the statutes under attack in the 1960 United States Supreme Court decisions (McGowan v. Maryland, 366 US 420 [81 S Ct 1101, 1153, 1218, 6 L ed 2d 393]; Two Guys From Harrison-Allentown, Inc., v. McGinley, 366 US 582 [81 S Ct 1135, 1153, 1218, 6 L ed 2d 551] ; and Braunfeld v. Brown, 366 US 599 [81 S Ct 1144, 1153, 1218, 6 L ed 2d 563]), and declares that because of that flexibility, the Michigan statute is unconstitutional. • When the supreme arbiter of the land declares statutes to be not so oppressive as to be invalid exercises of the police power, the finding by any other, court that a more flexible statute is too oppressive deserves close scrutiny.

The indictment of the Michigan statute centers about the alternative provision that the wéekly day of rest may be either Sunday or Saturday, the election to be made by each merchant. Such a provision is obviously less restrictive on merchants than a law requiring no sales on Sunday except for a few specified items. Yet it is said that since the act is *79less restrictive in that it “does not tend to eréate a single day of rest as was the purpose of thfe.laws” in McGowan, Two Guys From Harrison-Allentown, Inc., and Braunfeld, supra, it is an improper exercise of the police power. It is further said “Sunday sales could be in no way affected as all merchants might and could elect to remain open on Sunday rather than Saturday.” If this possibility became an actuality, the act would still be achieving a purpose approved in McGowan, to create a day of rest. If Saturday were to become the customary day of rest, a valid purpose would be accomplished in Saturday closing.

As to the argument that 1 purpose of Sunday closing laws is to “achieve 1 day of rest in 7 for employees” and that the Michigan act fails in that the employee can work at another job on the seventh ■day, the purpose of the act seems to be to prevent the forced labor, under threat of losing their jobs, of employees for 7 days per week.

In regard to the 7-day merchant, who must forego 1 of his 2 allegedly most profitable days, and as to anyone whose religious convictions require him to close on a day other than Saturday or Sunday, the prevailing opinion of Chief Justice Warren in Braunfeld v. Brown, 366 US 599, 603, 605, lends resolutionary light:

“Concededly, appellants and all other persons who wish to work on Sunday will be burdened economically by the State’s day of rest mandate. * * * But, again, * * * the Sunday law simply regulates a secular activity and, as applied to appellants, operates so as to make the practice of their religious beliefs more expensive.”

Chief Justice Warren goes on to state that because there is a valid welfare purpose behind such an exercise of the police power, “we cannot find a State with*80out power to provide a weekly respite from all labor.” (p 607)

Concluding the disposition of this issue, the' opinion of Justice Adams cites several cases in which the remedy adopted was found to bear no reasonable' relation to the public welfare to be conserved, and. then summarily declares not only that the remedy in this case bore no reasonable relation to the public welfare, but “it appears that the sole and only objective of PA 1962, No 128, is to eliminate, or at least reduce, competition.” (Emphasis supplied.) Such cursory treatment, based upon other ad hoc determinations of the validity of statutes and ordinances, all very different in structure and purpose from the' one at hand, is not persuasive. This appears to be an attempt to make this more liberal statute appear' less a valid restriction than that in the McGowan, Two Guys From Harrison-Allentown, Inc., and Braunfeld Cases, supra, and thus avoid applying the rules there laid down. In this action I cannot concur.

I concur with the majority, however, to the extent that section 9 of the statute is a constitutionally invalid delegation to counties of legislative power, and on that basis alone would strike down the statute.

Kelly and Smith, JJ., concurred with Kavanagh, C J.