Giant of Maryland, Inc. v. State's Attorney

Murphy, C. J., delivered the opinion of the Court. These appeals bring into question the construction ⁵⁰⁵ and constitutionality of § 534H of Article 27 of the Maryland Code (1957, 1971 Repl. Yol.). This statute, one of many included among the mass of so-called “Sunday Blue Laws” enacted by the General Assembly of Maryland, is applicable only in Prince George’s County.

Insofar as here pertinent, the section provides: “(a) In Prince George’s County, except as specifically in this section otherwise provided, it is unlawful on Sunday for any wholesale or retail establishment to conduct business for labor or profit in the usual manner and location or to operate its establishment in any manner for the general public. It shall not cause, direct, permit, or authorize any employee or agent to engage in or conduct business on its behalf on Sunday. “(b) Notwithstanding any provision of this section, the operation of any of the following types of retail establishments is allowed on Sunday. 1. Drugstores whose principal business is the sale of drugs and related items. 2. Delicatessens whose principal business is the sale of delicatessens and related food items. 3.

Bakeries and bakeshops. * * * “(c) Nothing in this section applies to: * * * 3. Small business with not more than six (6) persons on any one shift with the exception of persons or retailers engaged in the sale of motor vehicles. * * * “(i) The State’s Attorney of Prince George’s County may petition the Circuit Court to enjoin any violation of this section.” On June 6, 1972 the State’s Attorney for Prince George’s County, alleging violations of § 534H, filed pe ⁵⁰⁶ titions to enjoin Giant of Maryland, Inc. (Giant), Safeway Stores, Incorporated (Safeway), and The Grand Union Company (Grand Union) from operating their respective chains of supermarket stores in Prince George’s County on Sunday. Answering the petitions, the respondents each claimed that the statute was inapplicable to the business it conducted on Sunday because it was a “[s]mall business with not more than six (6) persons on any one shift. . .” within the contemplation of § 534H (c) 3. In addition, Giant maintained that certain of its stores were exempt as “drugstores,” “delicatessens” or “bakeries and bakeshops” within the meaning of § 534H (b).

Each of the respondents also contended that the statute was void for vagueness in violation of the Fourteenth Amendment to the United States Constitution; 1 and, further, that as a penal statute (§ 534H (j) makes “[a]ny person, firm or corporation violating the provisions of this section . . . guilty of a misdemeanor . . .”), § 534H must be strictly construed in favor of the accused and against the State. Safeway and Giant raised the additional defense of unequal enforcement of the law in violation of the Fourteenth Amendment. At the trial before Judge James H. Taylor, evidence was adduced showing that on Sundays, June 4 and 11, 1972, there were eleven Giant stores, twenty-nine Safeway stores, and six Grand Union stores open and operating in Prince George’s County; that each of the individual Safeway and Grand Union stores was operated with not more than six employees working at any one time on Sunday; that Giant operated with more than six employees per store at any one time during the Sunday business hours, but because it utilized “overlapping ⁵⁰⁷ shift structures,” not more than six employees began and ended their work period at the same time; that each of the eleven Giant stores in Prince George’s County contains a delicatessen section for the sale of delicatessen and related food items; that four of Giant’s stores contain bakery sections (where the baking is done on the premises) and all stores contain bake sections where “Heidi” (a wholly owned Giant subsidiary) bakery products are sold; and that two of Giant’s stores have pharmacy licenses and operate drug sections. Evidence was adduced showing that on Sunday, June 4, 1972 the Prince George’s County police conducted an investigation at a Giant store located in Bowie; that it found seven employees assigned to the pharmaceutical department, five to the delicatessen department, three to the bakery department,, and six additional employees assigned to other areas of the store.

On the same day, the police surveyed a Giant store located in Clinton, finding that five employees were there assigned to the bakery department, five to the delicatessen section, and ten others to different areas of the store. One of Giant’s officers testified that in conducting its business on Sundays, it “cautioned the [store] managers that they could use no more than six persons on any shift” (meaning the group of employees beginning and ending their work at the same time). It was shown by the evidence that Safeway’s 1971 sales volume nationally exceeded $5,300,000,000, making it the largest food retailer and second largest retailer in the United States. Grand Union’s 1971 sales nationally were $1,300,000,000; it is the twenty-first largest retailer and the tenth largest food retailer in the United States.

Giant’s gross sales in 1971 amounted to $560,-000,000. It was stipulated that respondents’ competitors in the County — 7-Eleven Stores, Consumer Supermarkets, Jumbo Food Stores, High’s Dairy Stores, Dart Drug Stores, Drug Fair, and People’s Drug Stores — each regularly operates numerous retail outlets in the County on ⁵⁰⁸ Sundays. It was also stipulated that a dispute exists in Montgomery County, Maryland, between the State’s Attorney and the County Executive concerning the interpretation of Code, Article 27, § 534J, which is, with the exception of one insignificant word, identical with Article 27, § 534H; that this dispute has resulted in the State’s Attorney for Montgomery County filing a suit to enjoin the County Executive from causing the arrest of managers or owners of “food chains” conducting business on Sundays without regard to the number of persons employed. At the conclusion of the evidence, Judge Taylor entered an order permanently enjoining Giant from conducting business on Sundays with more than six employees at any given time in any one store in Prince George’s County.

At the same time the court dismissed the petitions against Safeway and Grand Union, finding that their respective Sunday operations, conducted with not more than six employees in each store at any given time, did not violate Article 27, § 534H. In an oral opinion rendered in support of his decrees, Judge Taylor refused to find “that the departmentalization of the drug section, the delicatessen or bakery section is such as would remove any Giant store’s operations from the prohibition of the statute,” in that the bakeries and delicatessens “are part and parcel of . . . [Giant’s] total operations and not a separate entity or a concession”; and that Giant’s testimony that 75% of its sales come from the sale of food products not related to drug store activities precludes it from being a drug store whose principal business is the sale of drugs. The court rejected Giant’s argument that Article 27, § 534H (c) 3 is unconstitutionally vague in that the words “small business” and “shift” are subject to varying interpretations; the court held that “small business” is defined by the qualifying phrase, “with not more than six (6) persons on any one shift” without regard to any other indicia of size, such as gross sales or square footage; and that “shift,” in its ordinary and common meaning, refers to “any given work ⁵⁰⁹ period.” Thus construed, the court held that “on Sunday the operation must be carried on with not more than six persons at any given work period if the activity is to be within the exception. . . .” Lastly, Judge Taylor held that the fact that others were doing business on Sunday “does not inure to the benefit of Giant.” He noted that the State’s Attorney is vested with discretion in the matter of prosecuting violations of § 534H; he also stated that the classifications drawn by the Legislature in enacting § 534H were within its power to provide for a day of rest and relaxation. Giant appealed from Judge Taylor’s order that it “cease and desist . . . operating with more than six (6) employees at a given time in any one (1) store with respect to the Sunday Sales operations of Giant of Maryland, Inc., in Prince George’s County. . . .” The State’s Attorney for Prince George’s County appealed from Judge Taylor’s orders dismissing his petitions to enjoin Grand Union and Safeway from operating on Sunday in violation of the statute.

The appeals were separately argued before us, but we shall dispose of both in one opinion because of the similarity of issues. The central issue in each appeal is whether Judge Taylor correctly interpreted the meaning of the words “[s]mall business with not more than six (6) persons on any one shift . . .” contained in § 534H (c) 3. That question can only be resolved by a careful study of the language used in the statute, considered in its entirety, and in the context of the purpose underlying enactment of Maryland’s Sunday Blue Laws. That purpose was clearly identified by the Supreme Court of the United States in McGowan v. Maryland, 366 U. S. 420 , 81 S. Ct. 1101 , 6 L.Ed.2d 393 (1961) ; that Court, in affirming our decision in McGowan v. State, 220 Md. 117 , 151 A. 2d 156 (1959), said: “. . . the State’s purpose is not merely to provide a one-day-in-seven work stoppage.

In addition to this, the State seeks to set one day apart from all others as a day of rest, repose, ⁵¹⁰ recreation and tranquility — a day which all members of the family and community have the opportunity to spend and enjoy together, a day on which there exists relative quiet and disassociation from the everyday intensity of commercial activities, a day on which people may visit friends and relatives who are not available during working days.” 366 U. S. at 450 , 81 S. Ct. at 1118, 6 L.Ed.2d at 413 . In Richards Furniture v. Board, 233 Md. 249 , 196 A. 2d 621 (1964), we recognized that it was the dual purpose of Sunday Blue Laws to provide a day of rest for working persons and an atmosphere of tranquility in which to enjoy it. We there noted that the Supreme Court said in McGowan that such laws “were clearly fashioned for ‘the purpose of providing a Sunday atmosphere of recreation, cheerfulness, repose and enjoyment. . . ” Of the statute involved in Richards Furniture , which permitted in Anne Arundel County “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,” we said: “. . . The operation of large commercial markets or department stores on Sunday would materially interfere with the recreational atmosphere of the day, while small retail operations will not.” 233 Md. at 263 , 196 A. 2d at 629 . 2 In Rebe v. State’s Attorney, 262 Md. 350 , 277 A. 2d 616 (1971), it was contended on behalf of a Prince George’s County discount department store employing ⁵¹¹ twenty-two persons that the statute presently before us — § 534H, and particularly the “small business” exception contained in subsection (c) 3 thereof — was irrational and arbitrary and hence void under the Fourteenth Amendment to the federal constitution.

In rejecting the contention, we held that there was “ample justification for the legislative determination that tranquility and repose would be more likely assured if small business establishments operated on Sundays, while large ones did not.” We concluded that it was the legislative purpose in enacting § 534H (c) 3 “to restrict business activity on Sundays to small stores.” 262 Md. at 358-59 , 277 A. 2d 619 -20. By its plain terms § 534H prohibits, in subsection (a), “any wholesale or retail establishment” from conducting “business for labor or profit in the usual manner and location” on Sunday in Prince George’s County. Subsection (b) enumerates several “types of retail establishments” which are exempt from the prohibitions of the statute and subsection (c) 3 provides that nothing in the section applies to “[s]mall business with not more than six (6) persons on any one shift. . . .” We must, of course, construe the statute according to the ordinary and natural import of its language; it is the language used in the statute which constitutes the primary source for determining the legislative intent. Atlantic, Gulf v. Dep’t of Assess. & T., 252 Md. 173 , 249 A. 2d 180 (1969); Maryland Medical Service v. Carver, 238 Md. 466 , 209 A. 2d 582 (1965) ; Height v. State, 225 Md. 251 , 170 A. 2d 212 (1961).

Consequently, we cannot disregard the natural import of statutory language unless some imperative reason is found in the statute for enlarging or restricting its meaning. Hunt v. Montgomery County, 248 Md. 403 , 237 A. 2d 35 (1968) ; Celanese Corporation v. Davis, 186 Md. 463 , 47 A. 2d 379 (1946). We thus confine ourselves to the construction of the language of § 534H as written and we will not supply omissions or insert exemptions not made by the Legislature. Birmingham v. Board of Public Works, 249 Md. 443 , 239 A. 2d 923 (1968); Amalga ⁵¹² mated Ins. v. Helms, 239 Md. 529 , 212 A. 2d 311 (1965).

In other words, where statutory language is plain and free from ambiguity, and expresses a definite and sensible meaning, courts are not at liberty to insert or delete words with a view toward making the statute express an intention which is different from its plain meaning. Gatewood v. State, 244 Md. 609 , 224 A. 2d 677 (1966) ; Fowel v. State, 206 Md. 101 , 110 A. 2d 524 (1955); Pressman v. State Tax Commission, 204 Md. 78 , 102 A. 2d 821 (1954). Considering § 534H in light of these principles, we think Judge Taylor was in error in concluding that the “small business” exception in subsection (c) 3 exempted from regulation any business which, on Sunday, operated with not more than six employees on any one shift at any one location. The statute does not define “small business” in terms of business done on Sunday, or on the basis of the number of employees working that day.

On the contrary, the “small business” exception is defined and limited by the qualifying phrase “with not more than six (6) persons on any one shift.” Nothing in § 534H even remotely suggests that “any one shift” means “any one shift on Sunday.” We think it implicit, from the absence of such language, that, as used in subsection (c) 3 “[s]mall business with not more than six (6) persons on any one shift . . .” refers to those businesses which regularly conduct operations with not more than six persons employed “on any one shift.” The