Appellant,
—vs.--
MARYLAND,
Appellee.
No. 8
Washington, D. C.
December 8, 1960
(Braunfeld v. Brown, No. 67, argued the same day, after No. 8)
The above-entitled cause came on for oral argument, pursuant to notice,
BEFORE:
EARL WARREN, Chief Justice of the United States
HUGO L. BLACK, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
THOMAS C. CLARK, Associate Justice
JOHN M. HARLAN, Associate Justice
WILLIAM J. BRENNAN, JR., Associate Justice
POTTER STEWART, Associate Justice
FELIX FRANKFURTER, Associate Justice (check the appropriate order of justices)
CHARLES E. WHITTAKER, Associate Justice
APPEARANCES:
HARRY SILBERT, on behalf of Appellant, No. 8.
JOHN MARTIN JONES, JR., Special Assistant Attorney General of Maryland, on behalf of Appellee, No. 8.
MR. CHIEF JUSTICE WARREN: Number 8, Margaret M. McGowan et al appellants versus Maryland.
Mr. Silbert?
ORAL ARGUMENT BY
HARRY SILBERT,
ON BEHALF OF APPELLANT, NUMBER 8
MR. SILBERT: May it please the Court, Mr. Chief Justice, Justices. I would like to correct a mistake I think which occurred unintentionally. Mr. Burger I believe stated that the next case was a case of the Two Guys From Harrison. I represent the seven defendants--the seven appellants--who sustained a criminal conviction in Anne Arundel County in the state of Maryland. Incidentally, these appellants work for the Two Guys from Harrison. So that actually I think he had reference to the case, that is, following me, rather than this particular case.
[00:57] My clients worked for the Two Guys from Harrison, which is a large retail establishment in the county of Maryland. Within the confines of this establishment are sold many many things--as has been testified, almost everything under the sun. On a Sunday, the police arrested these people, and they were charged with selling. Two of them were convicted of--convicted--for selling a three-ring loose-leaf notebook. Four of them were convicted for selling a stapler and staplers. One was convicted of selling a toy submarine. These convictions were sustained by our appellate court of Maryland. I think--we claim--that these convictions are not proper, and that in light of the First and Fourteenth amendment to the Constitution, should not be sustained, and should be overthrown in this Court here.
[01:58] In order to more clearly familiarize ourselves with the Sunday Blue Laws, I think it would be well to examine the Sunday Blue Laws as they apply to the state of Maryland. The first law was enacted in 1723, and remains substantially in its same form today. It's known as article--section 492 of article 27, which is the criminal article affecting the criminal laws of Maryland. It is entitled the Sabbath Breaking. From this article 492, and I refer to our jurisdictional statement which outlines the section 492, it says that:
[02:51] No person whatsoever shall work or do any bodily labor on the Lord's Day, commonly called Sunday, and no person having children or servants shall command or wittingly or willingly suffer any of them to do any manner of work or labor on the Lord's Day, except works of necessity and charity always excepted; nor shall suffer or permit any children or servants to profane the Lord's Day by gaming, fishing, fowling, hunting, or unlawfully pastime--or unlawful pastime--or recreation. And [that] every person transgressing this section and being hereof convicted before a Justice of the Peace, shall forfeit five dollars, to be applied to the use of the county.
[03:37] Thereafter a series of exceptions were carved out to this general Blue Law. Section 521, which was enacted almost the same time as this section, and sustained a number of exceptions thereto, permit on a statewide basis the sale of certain food commodities, such as soft drinks, candies, uh, confections, milks and ice--ice cream and ices, certain tobaccos, certain motor fuels and greases, and certain periodicals to be sold on Sunday. This has statewide effect.
[04:13] Section 522, which follows the one just read, prevents on the Sabbath Day as it says commonly called Sunday the operation of any dancing saloon, opera house, tent and alley, barber saloon, or bail alley--ball alley--within this--within the state.
[04:39] Thereafter a section known as 509, which came after 521 and 522, and from that is the problem that we have facing the Court today. The state of Maryland contends that my clients were convicted under the General Section of 521, which is the prohibition of the sale of items, which we admit are not included in the exceptions of 521. However, 509 is a section which applies in effect only to Anne Arundel County, and it exempts from the operation of sections 492, 521 and 522--it says it shall be lawful to operate, and work, or to be employed in the occupations of operating any bathing beach, bathhouse, amusement park, dancing saloon, the selling or sales of any novelties, souvenirs, cup accessories, or other merchandise essential to or customarily sold or incidental to the operation of the aforesaid businesses and occupations at retail. It also gives them the right to rent beach chairs and beach umbrellas, but that is not incidental to this case.
[05:57] So from this overall--
[05:59] Q: Is it conceded that, uh, the exceptions apply only to Anne Arundel County?
[06:04] A: I believe so. 509 is only applicable by the title to Anne Arundel County. It says beaches, amusement parks, picnic groves, in Anne Arundel County. The code of Maryland specifically says this will only apply to Anne Arundel County.
[06:18] Now there are a great number of other sections following 492 and 521 and 522, excepting numbers of activities and sales of merchandise in the various political subdivisions of the state of Maryland. Also applicable to Baltimore City, [06:32] where we have a great multitude of exceptions. But 509 carves out a large exception and says that you can sell anything which would customarily be sold at a bathing beach--that these items are admitted to be properly--offered for proper sale at a bathing beach is borne out by the trial facts Judge Michaelson when he tried--when he tried this case in the ninth xxx court, he said--the court said to counsel trying case:
If you could wave a magic wand and make all these places where the alleged violations of the law occurred--bathing beaches or amusement parks--why, you wouldn't have much difficulty, would you?
When we objected to the fact that this created an arbitrary or unreasonable classification of the law, I submit to your Honors that we--our clients--suffer pecuniary loss, directly. The preceding cases have belabored the fact, did they or did they not suffer pecuniary loss. Here we have a mercantile establishment operated not at a bathing beach, selling items which the court says can be sold at a bathing beach. Now it so happens that the Two Guys From Harrison's retail establishment is located within a few miles of the bathing beaches, so that a man on his way to a bathing beach would not be able to buy a stapler, the can of wax, or the toy submarine, yet he could buy that very item at a bathing beach and be solely within his legal rights, as the law lies--lays them down. If you will refer to Judge Michaelson's decision, in finding our clients guilty--for the purposes brevity, he refers to the distinction as being ridiculous, ridiculous to believe that you can buy a can of beer, or buy a prohibited item, and yet be able to buy an accepted item, and yet not be able to buy a shirt, or as he characterized it, a collar button if you were going to a wedding or some affair on Sunday, unless you actually went to a bathing beach to buy it.
Now, we say, and we've urged, that the courts rule this to be arbitrary and unreasonable. We have heard that there are number of cases on point, and there are a number of cases which distinguish, as in the Utah case, or in the Georgia case, which says, well, you can buy--it would be--it's not--it is arbitrary to say that you can buy a bottle of beer, and yet not buy a can of orange juice.
But this is a different case. This case, the same item, the very item that you can buy at the bathing beach may not be sold around the corner if it doesn't face the bathing beach. So that, if in any respect, this law can be classified, we say the classification is arbitrary and unreasonable and subjective to judicial review. It does not lie within the province of a legislature, even though it be subjected, as the Harvard Law Review and as the Rudkin Law Review says, that it is subjective to the private interests and the pressure groups to cut away from the law certain items which can be sold. This is the very same item that has a denial with the privilege of the law behind it. It has the effect of the law to say to one group of merchants you cannot sell a toy submarine, a can of wax, or a stapler. And to say to another group of merchants in the same county--not only in the same state but the same county--you can sell it.
[11:13] JUSTICE BLACK: You think the Slaughterhouse Cases have any relevance to your problem?
[11:22] A: I am not fully acquainted with the Slaughterhouse Cases as to be able to pass an intelligent opinion.
[11:33] I do feel that my--
[11:35] JUSTICE BLACK: --they sustained the monopoly against the charge that it violated due process and equal protection.
[11:43] A: Well, there are monopolies, I think I can comment on that, sir. There are monopolies which are created by law, or are authorized by law, and have their place in our society, and they have the right to do certain things that possibly others don't. But this is not a monopoly. This is a case of the private individual, the private citizen. It would mean that if you were engaged in--
[12:08] JUSTICE BLACK: I gathered from what you said it was giving a monopoly to the beach to sell certain types of goods--
[12:13] A: But there are a number--there are a number of beaches. Picture if you may Atlantic City. Picture if you can Atlantic City as a beach. If we had that same beach in the county of-- in Anne Arundel County, all the stores on--facing the beach could sell anything they wanted, which could--which would include everything. Yet if you were on the other side of the beach--not a bathing beach--you couldn't sell it. Now I'm not talking about any other item except that which is sold at the beach.
[12:42] JUSTICE BLACK: Now what you're saying is that the state has ... that power to require people to buy their goods from a beach if it wants to do so.
[12:50] A: I believe so. Because this is not a monopoly, it's not created for public necessity. Monopolies are usually--usually derive their origin, I believe, in some necessity which benefits the public, but these don't.
Now, with respect--as I say, I leave the subject of the arbitrary classification on these items with a feeling that, if permitted, it would give those private pressure groups the right to create--to create quasi-monopolies by saying "You will lose out," and the individual who operates a store not on a beach, and the person who works in that store is deprived of his right to make a living, and the owner is deprived--deprived of his right to sell. While blessed with the sanction of the law behind him, the same mercantile operation in the bathing beach area thrives.
This we believe to be beyond the pale of reasonable classification. It becomes arbitrary.
[14:08] CHIEF JUSTICE WARREN: Isn't that done in a lot of states, uh, a lot of local action laws? The one county has certain regulations, and one next to it has no regulation at all?
[14:35] A: Mr. Justice Warren, Chief Justice Warren, I--I would--I'd subscribe to that. I'd subscribe that theory, except that this is a classification within the county itself. In the original trial of the case of--instead of Maryland versus my clients--the state attorney Mr. Duvall quoted the Salisbury case--the court of appeals of Maryland which had behind it the only unlawful search and seizure, uh, bowstack as we term it, and he said if the act applies to the whole state, it's a valid state. In this case, it exempted three counties from the operation of the bowstack. However, our Attorney General, in 159--in 1959--advised the Governor that the proposed passage of a minimum price requirement--that is imposing upon state stores in five counties in the state of Maryland the right to impose minimum price controls on liquor-- would be unconstitutional as not affecting the entire state.
[15:31] Now, this is the same Attorney General's office--
[15:34] JUSTICE BLACK: You mean it would violate the state constitution?
[15:37] A: Beg pardon?
[15:38] JUSTICE BLACK: You mean it would violate the state constitution?
[15:40] A: As being a classification.
JUSTICE BLACK: The state constitution?
A: That's correct. We say it goes one step further, it deprives our people of their property and their right to make a living without due process of law--of law--and in violation of the Fourteenth amendment to the Constitution of the United States.
Now with respect to the religious aspect, all of these exceptions and the two original general laws are entitled Sabbath Breakers. We have two cases in Maryland--the Pearson case and the Duke Fine case. I think in the Duke Fine case, the thought brought home is very vivid. They attempt to define the Sunday Law as being a day of rest, and the court of appeals upheld that. And the court in its--in its decision said that if in the operation of this one day of rest the majority or the non-religion is benefited by thereto, as indeed it should be, then that would be a good law, if it encouraged the observance by the dominant group in Maryland of their religious views.
Now we hold--we have no ultimate saggitarian laws. The people that I represent are of number--are very religious. My research of the religious phase--phases of the inhabitants of our country leads me to believe that there is no day in the week in all seven that could be said to be without religious significance. The Friends, for example, hold every day holy.
Q: When?
A: All day, every day, one day is holy as the other. The Mohammeds--