Opinion
No. 4904.
Argued December 7, 1960.
Decided January 20, 1961.
1. The statute (RSA 578:5) providing that the prohibition against Sunday sales (Ib., s. 4) shall not prevent the selectmen of a town from adopting ordinances permitting and regulating retail business on that day provided such ordinances are approved at the "next regular election" does not authorize the adoption of such an ordinance at a special town meeting and before the selectmen have acted thereon.
2. In the construction of a statute, the term "regular election" denotes a regularly and recurrently held election and does not include a special meeting unless the context clearly compels that conclusion.
3. Following adoption of a proposed ordinance by the selectmen in November, the "next regular election" of a town, within the meaning of the statute restricting sales of merchandise on Sunday (RSA 578:4, 5) is the town meeting held annually on the second Tuesday of March (RSA 39:1).
4. In the statutory provision (RSA 578:4) that no person shall sell any merchandise on the Lord's Day but "this section shall not be construed to prevent . . . the sale of milk, bread, and other necessaries of life" the phrase "other necessaries of life" was construed to permit sale of such items as fresh meat, baby foods, canned goods and staple food items not in the exotic class.
AGREED CASE, submitted on stipulated facts, to determine the legality and construction of an amendment to an ordinance of the town of Salem prohibiting sales of certain foods on Sunday. The reserved case, transferred by Grant, J., reads in part as follows: "Because of the public question involved and the effect of the ordinance upon a substantial number of businesses in Salem, an accelerated return date and acceptance of service were agreed to by respondent. It is stipulated that the matters of fact stated in the petition are true and correct . . . The parties further stipulate that at a meeting of the Selectmen of the Town of Salem held November 14, 1960, it was voted by the Selectmen to adopt the amendment to the ordinance in the form contained in Article 3 of the warrant for the special town meeting held November 4, 1960."
The amended ordinance adopted under article 3 of the warrant for the special town meeting of November 4, 1960, reads as follows:
"It shall be lawful to serve meals and to furnish supplies, service and repairs required by automotive apparatus on the Lord's Day within the Town of Salem; in addition to those articles permitted to be sold by Chapter 578, Section 4 of the New Hampshire Revised Statutes Annotated 1955, confectionary, ice cream, soft drinks, fresh fruits, fresh vegetables, meat and dairy products fully prepared for consumption in perishable form, tobacco in its various forms, flowers, newspapers, periodicals, and toilet necessities may be sold, but no person shall sell any such articles until he shall have obtained a permit so to do from the Board of Selectmen, which permit shall be revocable at the will of said Board of Selectmen." (Emphasis supplied).
Prior to the adoption of this amended ordinance and "for more than 28 years since 1932, petitioner's store, with the permission of the Selectmen, was open on Sunday for the sale of foods fully prepared for consumption and of foods in perishable form, including fresh meats and canned goods." Additional facts appear in the opinion.
John B. Ford (by brief and orally), for the plaintiff.
Perkins, Holland Donovan (Mr. Donovan orally), for the defendant.
As a preliminary matter in the interest of clarity it should be noted that this case raises no question as to the constitutional validity of Sunday laws and ordinances under the Constitution of the United States or of this state. The former may be resolved in the four cases from Maryland, Massachusetts and Pennsylvania which have been argued and are now pending in the Supreme Court of the United States. No. 8 McGowan v. Maryland; No. 11 Gallagher v. Crown Kosher Super Market; No. 36 Two Guys From Harrison-Allenstown Inc. v. McGinley; No. 67 Braunfeld v. Gibbons. See 29 U.S. Law Week 3173-3177 (1960); note, State Sunday Laws and the Religious Guarantees of the Federal Constitution, 73 Harv. L. Rev. 729 (1960). The latter awaits another case on another day. See note, Sunday Blue Laws: A New Battle on an Old Front, 11 Syracuse L. Rev. 254 (1960).
At issue in this case is the question whether it is lawful to sell, at retail, fresh meat and canned goods on Sunday. The defendant contends that such sales are prohibited by the amended ordinance since neither fresh meat nor canned goods are "fully prepared for consumption in perishable form," as required by the ordinance. The plaintiff contends that the amended ordinance was not duly enacted under the controlling statute.
The prohibition of Sunday sales in RSA 578:4 with certain exceptions is also modified by RSA 578:5 the pertinent part of which reads as follows: "Nothing in this chapter shall prevent the selectmen of any town . . . from adopting . . . ordinances permitting and regulating retail business . . . on the Lord's Day, provided such . . . ordinances are approved by a majority vote of the legal voters present and voting at the next regular election . . . ." (Emphasis supplied). A regular election in common parlance is an election that is regularly and recurrently held. Robb v. Tacoma, 175 Wn. 580; State v. Nebraska City, 123 Neb. 614. The amended ordinance was adopted at a special meeting held on November 4, 1960. As is well known in legislative halls, a special meeting does not qualify as either a regular meeting or a regular election (RSA 21:7) unless the context clearly compels that conclusion which is not the situation here. This construction is fortified by the legislative history of this statute. The original enactment (Laws 1931, c. 155) specifically provided that a Sunday ordinance must be adopted at the next regular election but contained a further proviso that such an ordinance could be rescinded at any regular or special election. This proviso was eliminated in R. L., c. 448, s. 5 and no reference to special meetings or elections has appeared in subsequent legislation relating to Sunday ordinances. Laws 1943, c. 49; RSA 578:5. It follows that this Sunday ordinance was not approved at the "next regular election" as required by RSA 578:5 and was not validly enacted.
There is a further reason why the ordinance was not properly adopted. It was adopted by the selectmen after rather than before its approval by the voters. Presumably the Legislature deemed it wise to place the initial responsibility with the selectmen and their approval was a condition precedent to its subsequent adoption by the voters. When the Legislature has desired that regulations by selectmen shall be immediately effective until approved or rescinded by the voters, they have usually made explicit provision therefor. See RSA 31:41, 42 regulating open-air motion picture theaters.
Although the ordinance adopted November 4, 1960 is of no effect, it may be resubmitted to the voters at the "next regular election" which would be the annual town meeting held "annually on the second Tuesday of March." RSA 39:1. See also, RSA 21:7. Consequently we consider the further contention of the plaintiff that as a matter of law the sale of fresh meat and canned goods is permitted because they are "other necessaries of life" as that phrase is used in RSA 578:4. The pertinent part of that statute reads as follows: "No person shall . . . sell . . . any merchandise whatever on the Lord's Day; but this section shall not be construed to prevent . . . the sale of milk, bread, and other necessaries of life, nor of drugs and medicines." (Emphasis supplied).
The phrase "other necessaries of life" may be difficult of definition but it is clear that it was intended to include items in addition to bread and milk. The sale of fresh meat, baby foods, canned goods and staple food items which are not in the exotic class are "other necessaries of life" within the meaning of RSA 578:4. Consequently it follows that the plaintiff is not prohibited from selling fresh meat and canned goods and his petition for a declaratory judgment to that effect should be granted.
Remanded.
All concurred.