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

O’Donnell, J., delivered the opinion of the Court. We are here again confronted with a case arising from the legal skirmishing between the State’s Attorney for Prince George’s County in the fulfillment of his constitutional duties and the proprietor of a large supermarket alleged to have violated the “Sunday Blue Law” in effect for Prince George’s County. 1 This is “round two” of the State’s Attorney’s pursuit of Giant of Maryland, Inc. (Giant) and comes as a sequel to Giant of Maryland, Inc. v. State’s Attorney for Prince George’s County, 267 Md. 501 , 298 A. 2d 427 , appeal dismissed, 412 U. S. 915 (1973). On Giant’s first visit to this Court we sustained the constitutionality of Maryland Code (1957, 1971 Repl. Vol.) Art. 27, § 534H, found that Giant was not within the “small business” exemption provided in § 534H (c) 3, nor did it come within the exemptions provided for “drug stores,” “delicatessens” or “bakeries and bake shops,” within the meaning of § 534H (b).

In vacating an order which enjoined Giant “from conducting business on Sunday with more than six employees at any given time in any one store in Prince George’s County” we remanded the case for the entry of a decree enjoining Giant from violating the provisions of Art. 27, § 534H, and such a decree was entered on February 20, 1973. On Sunday, December 16, 1973, Giant conducted an “Associates Day” in the department store portion of its large ¹⁶¹ supermarket located in the Free State Mall in Bowie, Maryland, where it permitted its employees and members of their families to purchase merchandise at discount. The State’s Attorney petitioned the court to hold Giant in contempt for violating the decree. After a hearing, the Chancellor (Taylor, J.) found that Giant had operated the department store “in their usual manner” and that the extension of shopping privileges to the families of Giant employees, including sisters-in-law, brothers-in-law and mothers-in-law, was tantamount to an operation of the establishment “for the general public.” In its oral opinion the trial court stated: “I can appreciate that people working in commercial establishments such as Giant would seldom have an opportunity during Christmas and Easter seasons to shop with his or her family, but I do believe that there is a violation of the statute.

They were doing business for labor or profit in the usual manner and location. The scale was not as great as that of other days and there were some areas of the store not operating, but certainly the department store was operating in ‘their usual manner’; but it certainly does not seem to have been a flagrant violation of the statute. As a matter of fact, efforts were made to restrict participation in Associates Day to Giant employees or their families, and were it limited to Giant employees only I might be compelled to take a different view of the case. When the privilege to shop on Associates Day was extended to sisters-in-law, brothers-in-law, mothers-in-law, as testified by Mr. Sisson, then Giant offered to operate and operated its establishment for the general public.” From an adjudication that Giant was guilty of contempt and a fine of $100, an appeal was seasonably filed to the Court of Special Appeals.

See Code (1974), Courts and Judicial Proceedings Article § 12-304. While the case was ¹⁶² pending in the Court of Special Appeals we issued a writ of certiorari to that court. See Code (1974), Courts and Judicial Proceedings Article § 12-203. In its appeal Giant contends that the evidence offered in the trial court failed to establish that it conducted business on December 16, 1973, “in the usual manner,” nor did it operate its establishment “in any manner for the general public,” in violation of Art. 27, § 534H and that the evidence additionally failed to establish any intent on its part to violate the injunction.

In the trial court evidence was offered, in support of the petition for contempt, that an employee of Peebles Department Store, a competitor of the appellant in Bowie, at about 11 A.M. on December 16th was able to gain entrance to the store and made a single purchase of a pair of socks for seventy-nine cents. The witness acknowledged that two persons who had approached the entrance to the store in front of him were there confronted by a uniformed guard and upon acknowledgment that they were not employees of Giant were turned away by the guard, who told them that “this is for employees only shopping.” Notwithstanding the witness’s awareness of the restriction to employees for admission, he was able to evade the guard and gain entrance without being questioned. A special investigator in the employ of the State’s Attorney, upon the receipt of a complaint from an anonymous clergyman, visited the mall at about 2:50 P.M. that Sunday to verify the pastor’s complaint, ks he approached the entrance to the store from the mall he noticed six cashiers operating the cash registers. Entering, without confrontation — although he acknowledged that he was “well known” in the area — he sought out the store manager.

During his visit to the premises — not lasting more than five minutes —• and in a dialogue with the manager, he made inquiry concerning the manager’s awareness of the existence of the injunction, obtained a roster of the employees there on duty and observed what appeared to him to be the conduct of business by the cashiers in a normal manner. Although the witness did not ¹⁶³ recall seeing any posted signs restricting the patronage, he acknowledged that he was “not looking for any particular signs.” The witness conceded that it was “possible” that the manager told him that “the store was open for employees only,” and disclosed that he had also received a complaint that the store was open on Sunday, December 2nd, but did not pursue it because it was open “for employees only” on that date. Uncontradicted testimony was offered by a vice-president and counsel for the appellant that beginning in 1964 Giant instituted an “Associates Day” in order to give its employees — both before Easter and before Christmas — an opportunity on a special day to do their holiday shopping with members of their families and to purchase, at discount, department store type goods sold by their employer. Employees of its various stores in the metropolitan area were given notice of such private shopping days by letters addressed to them, as well as by bulletins posted in the “employees only” area of the respective stores.

When such an “Associates Day” was first scheduled in Prince George’s County, after the opening of that store in the Free State Mall in 1968, the witness consulted the State’s Attorney seeking assurance that such an operation would not be in violation of the statute. Although the State’s Attorney advised him that “if it was an employees’ or Associates Day, not open to the public that they would not take any action,” he further advised that if complaints were received they would be required to “look into the situation with a closer analysis,” and Giant would be advised of any such complaint. No complaint concerning the conduct of “Associates Day” was received from the State’s Attorney in the intervening five year period. There was also testimony that the appellant regularly ran advertisements in the District of Columbia newspapers, soliciting the general public to purchase food and appliances on sale during the week and on which there was a legend announcing that the stores were “Open Monday through Friday from 9 A.M. to Midnight.” The only announcement for Sunday, December 16th, was that promulgated directly to Giant employees. ¹⁶⁴ The testimony of the general manager of the department store unit was similarly uncontradicted.

Through his testimony it was elicited that Sunday, December 16th, was chosen — nine days before Christmas — to permit the employees and members of their families — which included “brothers, sisters, grandparents, brothers-in-law, sisters-in-law” 2 — to be able to shop at a discount in an atmosphere devoid of crowding by the general public; that on the date in question, to give notice to the public, printed posters stating: “SORRY! THIS IS A GIANT FAMILY PRIVATE PARTY. THANK YOU” were affixed on the only unlocked door into the mall in use that day, on both the right and left of the entrance to the store from the mall and on the exterior of an emergency exit facing High’s Dairy Store, which is open on Sunday, to so inform the patrons of High’s. Special guards were stationed at the entrance to the store and at the “customer pickup” area in the rear, to turn away any members of the general public seeking to enter.

Just for the occasion Giant hired a costumed Santa Claus with whom the invitees might have their photograph taken; a portable television set was awarded an employee as a result of a drawing held for those in attendance. Both the manager and assistant manager served that Sunday without compensation; their duties were “to1 socialize” with the employees, many of whom, personally known to the general manager, were greeted at the door; many who shopped were recognized by him. In addition to the special guards, he turned away members of the general public undertaking to enter the store by advising them that a “private party” was in progress and asked them to “please come back on Monday.” The general manager was explicit in his testimony that in his dialogue with the State’s Attorney’s investigator he told him he was familiar with the statute and advised him that “this is a private party for Giant associates only.” ¹⁶⁵ By way of comparison with the usual conduct of business the general manager explained that on a normal business day the department store sector is manned by a staff of approximately 170 employees, whereas, on the date in question, 42 employees were assigned to duty during the interval the department was open, with no more than 30 employees at any one time actually working. On the date in question 687 transactions were reflected through the cash registers, whereas, on the preceding Saturday over 4,000 such transactions were recorded, and that the total sales on that Sunday were computed to amount to approximately twenty-five percent of the usual Saturday receipts.

Although the supermarket from Monday through Saturday is open from 9 A.M. until midnight, the limited hours for “Associates Day” were 10 A.M. to 6 P.M. Testimony was further elicited that the food center portion of the store, usually also open during the business week, was closed; that no merchandise was received at the premises, nor were any items stocked upon the shelves, as customarily occurs from Monday through Saturday. In possible explanation of the ability of the witness to have made a seventy-nine cent purchase without his identity being learned by the cashier who “rung up” his sale, the manager testified that for the purchasers to avail themselves of the ten percent discount it was necessary to fill out a card listing name, address, Social Security number and place of employment, which was then “validated” and ten percent deducted from the total sale; that the discount was not offered to persons making a purchase of less than two dollars unless it was specifically requested, and in such an event the employee was required to specifically request the form from the cashier and complete it. 3 The pertinent portion of Art. 27, § 534H here in issue reads as follows: ¹⁶⁶ “(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.” (Emphasis supplied.) In addition to the right of the State’s Attorney to petition for injunctive relief, as provided in subsection (i), subsection (j) makes any violation of the section a misdemeanor subject to punishment by a fine not exceeding $1,000 “for each employee caused, directed, permitted or authorized to work” in violat’^n of the section. In com ¿ruing § 534H Chief Judge Murphy, for the Court, in Giant of Maryland, Inc. v. State’s Attorney for Prince George’s County, supra, stated: “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 , ¹⁶⁷ 239 A. 2d 923 (1968); Amalgamated 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).” 267 Md. at 511-12 , 298 A. 2d at 433 . “Usual” is defined in Webster’s New International Dictionary of the English Language, at 2807 (2d ed. 1944) as “[s]uch as in common use; such as occurs in ordinary practice, or in the ordinary course of events; customary; ordinary; habitual, common. . . .” As we read the first sentence in Art. 27, § 534H (a), the Legislature intended to prohibit, in Prince George’s County, on Sundays, the conduct of business, by labor or profit, of any wholesale or retail establishment at the location and in the manner in which it was customarily, normally and commonly conducted on days other than Sunday, and proscribed as well its operation in any manner on a Sunday by which it was available for patronage by the public at large. Nor do we read the second sentence in the section as prohibiting separate and distinct conduct from that proscribed in the first sentence, since when general words in a statute follow the designation of particular things or classes of subjects or persons, the general words will usually be construed to include only those things or persons of the same class or general nature as those specifically mentioned.

See Culotta v. Raimondi, 251 Md. 384, 387 , 247 A. 2d 519, 521 (1968); State Ins. Comm’r v. Nationwide Mut. Ins. Co., 241 Md. 108, 115 , 215 A. 2d 749, 753 (1966); Smith v. Higinbothom, 187 Md. 115, 130 , 48 A. 2d 754, 761-62 (1946).

This rule is applied more strictly in the construction of penal ¹⁶⁸ statutes — as is Art. 27, § 534H — since penal statutes shall be narrowly construed. Smith v. Higinbothom, supra; State v. Fleming, 173 Md. 192, 196 , 195 A. 392, 393 (1937). As we read it, the second sentence relates to and qualifies the conduct proscribed in the first sentence and cannot be construed as extending or including other conduct. See Webb v. City of Baltimore, 179 Md. 407, 409 , 19 A. 2d 704, 705 (1941); Continental Oil Co. v. Horsey, 175 Md. 609, 612-13 , 3 A. 2d 476, 477-78 (1939).

See also Larkins v. State, 163 Md. 372, 376-77 , 163 A. 195, 197 (1932). Compare, Blake v. State, 210 Md. 459, 462-63 , 124 A. 2d 273, 274 (1956). As we interpret it, the second sentence is a corollary to the penalty provision set forth in subsection (j) of the statute and is intended to mean that no wholesale or retail establishment shall cause, direct or permit [its] employee or agent to engage in or conduct business on its behalf on Sunday — “in the usual manner and location” or “in any manner for the general public.” In State v. Roll, 267 Md. 714 , 298 A. 2d 867 (1973), Judge Digges, for the Court, in pointing out the distinction between civil and criminal contempts, stated: “[I]n this State, the distinction between the two types of contempt has been preserved and is important. A civil contempt proceeding is intended to preserve and enforce the rights of private parties to a suit and to compel obedience to orders and decrees primarily made to benefit such parties.

These proceedings are generally remedial in nature and are intended to coerce future compliance. Thus, a penalty in a civil contempt must provide for purging. On the other hand, the penalty imposed in a criminal contempt is punishment for past misconduct which may not necessarily be capable of remedy. Therefore, such a penalty does not require a purging provision but may be purely punitive.

In this State, to these factors must be added the degree of proof required to establish a contempt — a civil contempt need be proved only by a preponderance of the evidence, while a ¹⁶⁹ criminal contempt must be shown beyond a reasonable doubt. Winter v. Crowley, 245 Md. 313 , 226 A. 2d 304 (1967); Donner v. Calvert Distillers Corp., 196 Md. 475 , 77 A. 2d 305 (1950)." 267 Md. at 728, 298 A. 2d at 876. Judge Barnes, who delivered the opinion for this Court in Winter v. Crowley, 245 Md. 313 , 226 A. 2d 304 (1967), delineated the five factors which generally point to a civil contempt as: “(1) the complainant is usually a private person as opposed to the State; (2) the contempt proceeding is entitled in the original action and filed as a continuation thereof as opposed to- a separate and independent action; (3) holding the defendant in contempt affords relief to a private party; (4) the relief requested is primarily for the benefit of the complainant; (5) the acts complained of do. not of themselves constitute crimes or conduct by the defendant so wilful or contumelious that the court is impelled to act on its own motion. . . .’’ 245 Md. at 317 , 226 A. 2d at 307 . Pursuant to Maryland Rule P4 the State’s.

Attorney instituted the proceedings against Giant to- have it adjudged guilty of violating, the injunction entered on February 20, 1973, and for a punitive punishment. See• Maryland RuleRB80 a. The proceedings were thus for an adjudication, of constructive criminal contempt, and required a proof' beyond a reasonable doubt. The Appellee so concedes..

This Court, in Ex Parte Bowles, 164 Md. 318 , 165 A. 169 (1933), held that one who has been shown guilty of contempt cannot relieve himself from liability therefor by denying an intention to commit contempt. Bowles,, the plaintiff in a slander suit, filed a motion for its removal or for the disqualification of the trial judge; asserting: in an accompanying, affidavit that the. judge’s, son was. opposing counsel, that the defendant was the father-in-law of the judge’s son, that the judge had aided the son “in contesting ¹⁷⁰ the plaintiffs right to intervene [in the case]” and that it was his belief, confirmed by many members of the local Bar, that he could not receive “a fair and impartial trial in any matter in which” the judge’s son and the son’s father-in-law were involved before the trial judge. When the matter was heard, before another judge in the Circuit, upon a citation for contempt of court, Bowles, by answer and in testimony, disclaimed any contemptuous intent. Without discussing whether the nature of the contempt was direct or constructive, civil or criminal, our predecessors, speaking through Judge W. Mitchell Digges, stated: “The appellant contends that he had no intention of committing contempt, and that his denial of that intention in the answer frees him from the responsibility for his act.

In such cases one must be held to intend what he does, and the language indicating that intention be construed according to its usual ordinary import. It can never be that one could be guilty of acts which constitute contempt, and subsequently relieve himself by saying that, ‘although it was contempt, I did not intend it.,’ The only legitimate effect of a subsequent denial of intention, if such denial be sincere and bona fide, is to mitigate the punishment.” (Citations omitted.) 164 Md. at 333 , 165 A. at 175 . See Freedman v. State, 176 Md. 511, 515 , 6 A. 2d 249, 251 (1939), quoting from Ex Parte Bowles, supra, but holding that denying an intention .improperly to influence the court [by a letter written about a pending case] does not have the effect of purging the contempt if the letter, on its face, by fair and ordinary import, is contemptuous. Donner v. Calvert Distillers Corp., 196 Md. 475 , 77 A.