
    36 So.2d 652
    STATE v. TRAHAN et al.
    No. 38792.
    Feb. 16, 1948.
    On Rehearing June 1, 1948.
    Rehearing Denied July 2, 1948.
    
      J. Minos Simon, of Lafayette, for relators.
    Tate & Fusilier, of Ville Platte, amicus curiae.
    Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., N. Smith Hoffpauir, Dist. Atty., of Crowley, and Edward Meaux, Asst. Dist. Atty., of Lafayette, for respondent.
   BOND, Justice.

Adam Trahan, the owner and operator of a restaurant in Lafayette Parish, and Arista Jackson, his employee, were charged with having violated Act No. 18 of 1886 (The Sunday Law), by opening the establishment on Sunday and selling a glass of wine to a customer. The trial court overruled a motion by defendants to quash the indictment on the ground that Act No. 18 of 1886 was violative of Article 3, Section 16, and Article 1, Section 2, of the State Constitution, and violative of the Fourteenth Amendment of the Federal Constitution. During the trial, it was proved that a sandwich had been sold to the customer with the glass of wine. After hearing all the evidence, the trial court found the dc 'ants guilty and sentenced Adam Trahan to imprisonment in the parish jail and fined Arista Jackson. We granted a writ of certiorari on the application of the defendants and the case is now before us for review.

The pertinent provisions of Act No. 18 of 1886 read:

“ * * * all stores, shops, saloons, and all places of public business, which are or may be licensed under the law of the State of Louisiana, or under any parochial or municipal law or ordinance, and all plantation stores, are hereby required to be closed at twelve o’clock on Saturday nights, and to remain closed continuously for twenty-foyr (24) hours, during which period of time it shall not be lawful for the proprietors thereof to give, trade, barter, exchange or sell any of the stock or any article of merchandise kept in any ■ such establishment.

* * * ***

. “the provisions of this act shall not apply to newspaper offices, printing offices, bookstores, drug stores, apothecary shops, undertaker shops, public and private markets, bakeries, dairies, livery stables, railroads, whether steam or horse, hotels, boarding houses, steamboats and other vessels, warehouses- for receiving and forwarding freights, restatiiurants, telegraph offices and theatres, or any place of amusement, providing no intoxicating liquors are sold in the premises; * * * provided, that nothing in this act shall be construed so as to allow hotels or boarding houses to sell or dispose of alcoholic liquors, except wine for table use on Sundays', * * (Italics ours.)

The defendants attack the constitutionality of Act No. 18 of 1886 on several grounds. One of the grounds of attack is that the act is discriminatory, arbitrary, and an unreasonable exercise of police power, because it permits hotels and boarding houses to sell wine for table use on Sunday while it denies that privilege to the operators of restaurants.

It is a well-established principle of constitutional law that the Legislature may determine what are the proper occasions and subjects for the exercise of police power, and it is not within the province •of the courts to decide as to the expediency of a measure enacted thereunder. City of DeRidder v. Mangano, 186 La. 129, 171 So. 826; Board of Barber Examiners of La. v. Parker, 190 La. 214, 182 So. 485. The. -courts will .interfere only when .-the restrictions 'imposed have no' real or substantial relation to the public interest in the matter regulated. State v. Legendre, 138 La. 154, 70 So. 70, L.R.A.1916B, 1270; City of Alexandria v. Hall, 171 La. 595, 131 So. 722; State v. Chisesi, 187 La. 675, 175 So. 453.

Both the establishment of a compulsory day of rest and the regulation of the sale of intoxicating liquors have been held to come within the scope of the police power of the state because they relate to the public health, morals, or order. State ex rel. Walker v. Judge, Sec. A, Crim.Dist.Ct., Orleans Parish, 39 La.Ann. 132, 1 So. 437; State ex rel. Galle v. City of New Orleans, 113 La. 371, 36 So. 999, 67 L.R.A. 70, 2 Ann.Cas. 92. It has also been held that under the police power the sale of liquor may be prohibited on Sunday for the preservation of public order. State v. Bott, 31 La.Ann. 663, 33 Am.Rep. 224; Minden v. Silverstein and Dittmer, 36 La. Ann. 912.

Therefore, the sole question under this phase of the attack on Act No. 18 of 1886 is whether the prohibition against selling wine for table use in a restaurant on Sunday bears a real and substantial relation to the purpose of protecting the health, morals, and good .order of the . public.

In State ex rel. Walker v. Judge, supra, Act No. 18 of 1886 was held to be constitutional, but in that case the court did not consider the question presented here. In fact, the instant case is. the first in which 'the unreasonableness" of the' prohibition against serving wine for table use in a restaurant on Sunday has been brought before this court.

It is obvious from the restriction of the privilege of selling wine for table use on Sunday to hotels and boarding houses and the denial of that privilege to restaurants, that this legislation has no relation to the health, morals, or safety of the public or of the operators of restaurants. There can be no reason of public policy for preventing proprietors of restaurants from selling wine with meals on Sunday, while the operators of hotels and boarding houses are allowed to do that very act. A possible reason for this discrimination may have existed in 1886, when the statute was passed, because in general at that time only those persons living in hotels and boarding houses ate there, while restaurants were patronized by the general public. Today, however, the general public patronizes hotels as much as, if not more than, the persons who live in them and it is becoming quite common for boarding houses to serve meals to the public. Therefore, there is no way under present conditions to distinguish the circumstances surrounding the serving of wine with a meal in a restaurant from the serving of wine with a meal in a hotel or a boarding house. To be constitutional a statute must not make or countenance any discrimination between persons pursuing the same calling. Special privileges are always obnoxious, and unjust discriminations between persons or classes are still more so. We, therefore, conclude that Act No. 18 of 1886 is discriminatory insofar as it applies to the defendants, and the motion to quash should be maintained. This conclusion makes it unnecessary for us to consider the other grounds of unconstitutionality raised by the defendants.

For the reasons assigned, the convictions and sentences appealed from are annulled and set aside; and the prosecutions are dismissed.

McCALEB and HAWTHORNE, JJ., dissent.

O’NIELL, C. J., absent.

McCALEB, Justice

(dissenting).

I find it difficult to receive that the exception contained in Act No. 18 of 1886, permitting hotels and boarding houses to provide wine for table use on Sundays, is an arbitrary or unreasonable discrimination against restaurants in general.

The test to be employed in determining whether a statutory discrimination is unreasonable has been laid down by the Supreme Court of the United States and is stated in Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580, 55 S.Ct. 538, 540, 79 L.Ed. 1070, as follows:

“It is a salutary principle of judicial decision, long emphasized and followed by this Court, that the burden of establishing the unconstitutionality of a statute rests on him who assails it, and that courts may not declare a legislative discrimination invalid unless, viewed in the light of facts made known or generally assumed, it is of such a character as to preclude the assumption that the classification rests upon some rational basis within the knowledge and experience of the legislators. A statutory discrimination will not be set aside as the denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it. Rast v. Van Deman & L. Co., 240 U.S. 342, 36 S.Ct. 370, 357, 60 L.Ed. 679 [687], L.R.A. 1917A, 421, Ann.Cas.1917B, 455; State Board Tax Com’rs. of Indiana v. Jackson, 283 U.S. 527, 51 S.Ct. 540, 537, 75 L.Ed. 1248 [1255], 73 A.L.R. 1464 [75 A.L.R. 1536].” (Italics mine).

There cannot be any doubt whatever that a reasonable state of facts existed in 1886 which justified the Legislature in making an exception in favor of hotels and boarding houses. Many people of this state, during the nineteenth and the early part of this century, were accustomed to have wine served with their meals. Obviously, the Legislature recognized this and felt that it would be unfair to deprive those persons residing in hotels and boarding houses of indulging in this custom. Hence the exemption.

The majority opinion concedes that, at the time the statute was passed, there was “A possible reason for'this discrimination * * * because in general at that time only those persons living in hotels and boarding houses ate there, while restaurants were patronized by the general public,” But the majority go on to say that times have changed; that people presently residing in hotels and boarding houses patronize restaurants; that it is quite common for hotel restaurants and boarding houses to serve meals to the public and that, therefore, there is no longer any reason for the discrimination against restaurants. In other words, the majority hold that, whereas the legislation did not violate the equal protection clause of the Federal Constitution at the time of its enactment, it is no longer invulnerable to attack because, due to alteration of conditions in the hotel and restaurant business, the exception respecting hotels and boarding houses arbitrarily discriminates against restaurants.

This reasoning is novel to say the least. It makes the constitutionality of a statute rest, not upon the facts and conditions presented to the Legislature at the time of the enactment, but upon circumstances existing, or said to exist, at the time the statute is assailed. Indeed, under such a view, the court actually arrogates to itself the right to repeal a law under the guise of constitutional construction — for by a finding (or rather an assumption as no evidence has been submitted to sustain it) of a changed state of affairs in the hotel and restaurant business, it perceives unreasonable classification and discrimination which strikes the law with nullity. Thus, the judiciary is exercising a function residing only in the lawmaker.

I respectfully dissent.

On Rehearing.

McCALEB, Justice.

Relators were charged with having violated the Sunday Law in that they sold a glass of wine in the establishment operated by Adam Trahan, proprietor. They filed a motion to quash the bill of information and argued, among other things, that Act No. 18 of 1886 deprived them of the equal protection of the laws (as alleged restaurant operators) because it prohibited the sale of all intoxicating liquors on Sundays in restaurants, whereas, it permitted hotels and boarding houses to serve wine for table use. It is claimed that this proviso in favor of hotels and boarding houses is an unreasonable and arbitrary discrimination against restaurants.

After further study, we are convinced that the contention is not meritorious. The argument that arbitrary and unreasonable discrimination exists is founded on the false assumption that the proviso in favor of hotels and boarding, houses deprives relators of a right which they otherwise would have had.

It was recognized, in our original opinion, that the right of the State to pass a Sunday Law is not open to question. It was also conceded that the Legislature, in the exercise of its police power, had the authority to except certain businesses from the law under such conditions as it deemed proper. Hence, the validity of the provisions contained in Section 3 excepting book stores, drug stores, hotels, boarding houses, restaurants and certain other enterprises from the Act cannot seriously be doubted. And, surely, since restaurants, book stores and other excepted establishments are given the privilege of doing business on Sunday, the Legislature had the right to limit the scope of their operations by forbidding them to sell intoxicating liquors on their premises as, here again, the regulation of the traffic in intoxicating liquors is a proper subject for the legislative branch of the government.

But it is said that, because the Legislature further ordained that hotels and restaurants would be permitted to serve wine for table use on Sundays, such a proviso is an unlawful discrimination against restaurants because, due to a change in conditions, hotels and boarding houses are not operated as they were in 1886, and that, today, hotel and boarding house restaurants cater to the public generally to the same extent as other restaurants.

This postulation requires, of course, the concession that we judicially know, as a fact, that all hotels and boarding houses are operating an ordinary restaurant business and that they do not restrict their operations to their own clientele. We have no hesitancy in assuming the truth of the statement in the case of hotels but we are not at all sure that modern boarding houses open their doors to the public at meal times.

But, even if we assume that all hotel and boarding house restaurants presently cater to the public generally, this does not warrant the conclusion that the change in conditions has brought about an arbitrary or unjustifiable discrimination against restaurants as there may still be good reason, because of the nature of the hotel and boarding house business, the investment therein, etc., for the legislature to place them in a separate and distinct class in regulating the operation of business which may be pursued on Sundays. And valid ground for the exemption is always presumed to exist in the absence of a showing that no reasonable state of facts can be conceived to justify it. Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580, 55 S.Ct. 538, 79 L.Ed. 1070, and cases there cited.

The objection of relators is not that all restaurants are not treated the same. It is that hotels and boarding houses are doing a restaurant business and that the statute affords them special privileges denied to' restaurants in general. If this be so, it may be that hotels, which operate their restaurants as separate units, can no longer be considered beyond the pale of the Sunday law insofar as the service of wine for •table use is concerned. But this circumstance does not render the Act invalid or deny relators the equal protection of the law.

Act No. 18 of 1886 withstood attack, similar to that presented here, in State ex rel. Walker v. Judge, 39 La.Ann. 132, 1 So. 437. After a reconsideration, we see no reason to disturb the ruling in that case.

Relators also contend in their motion to quash that Act No. 18 of 1886 is violative of Article 29 of the Constitution of 1879 and Section 16 of Article 3 of the Constitution of 1921 in that it embraces more .than one object and that its title is not indicative of, nor does it express, the contents of the body of the law.

We find no substance in this argument. The law has but one object — the suspension' of the operation of all places of public business on the Sabbath — and that object is clearly expressed in the title. All of the provisions contained in the Act, respecting the exemption of certain places of business and the prohibition of the sale of intoxicating liquor by the excepted establishments, are germane and kindred-to the main aim thereof and are not to be regarded as separate and distinct objects.

Under a demurrer filed to the bill of information, relator, Jackson, claims that, since he is charged as clerk and not as proprietor of the restaurant, no offense is stated against him as the penal provisions of Act No. 18 of 1886 apply only to proprietors of places of business. And both relators further contend in the demurrer that no offense is charged because Act No. 18 of 1886 does not prohibit the sale of wine for table use in a restaurant on Sunday.

This latter contention is, of course, devoid of merit as the Act clearly prohibits the sale of intoxicating liquor in a restaurant on Sunday.

However, we think that the contention of Jackson, who is charged as an employee of the establishment, is well founded. Section 1 of the statute declares, in substance, that all stores, shops, etc., licensed under the law are required to be closed from midnight Saturday for twenty-four hours “during which period of time it shall not be lawful for the proprietors thereof” to trade, bargain or sell any of the stock or merchandise kept in the establishment. Section 2 provides that “whosoever shall violate the provisions of this Act” shall be guilty of a misdemeanor. Obviously, the word “whosoever” refers to the word “proprietor” contained in Section 1. There is no provision of the law which applies to a clerk or employee of the establishment.

For the foregoing reasons, our original decree is reinstated insofar as it annuls the conviction and sentence of relator, Arista Jackson. In all other respects, the .decree is set aside and it is now ordered that the writs herein granted to Adam Trahan are discharged at his cost. The right to. apply for a rehearing is reserved to Adam Trahan and the State is accorded a similar privilege regarding our ruling in respect to Arista Jackson.

HAMITER, J., concurs in the decree. 
      
       This statute was held constitutional in all respects in State ex rel. Walker v. Judge, 39 La.Ann. 132, 1 So. 437, notwithstanding the inadvertent statement to the contrary in the majority opinion. In the Walker case, the statute was assailed as unconstitutional on numerous grounds. In outlining some of the objections (see page 137 of 39 La.Ann., page 441 of 1 So.) the court remarks: “(3) The other constitutional inhibitions invoked may be grouped and considered together.
      “They are — First, the remaining clauses of the Fourteenth Amendment, viz: ‘nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws”
      And, in discussing the question of discrimination, the court observes (see pages 141 and 142 of 39 La.Ann., page 444 of 1 So.) :
      “It only remains to consider the objection urged against the law on the ground of inequality, because of the numerous exceptions contained in the act.
      “The objection has not the slightest force. The law is not unequal in any constitutional sense. No person in the state is permitted to pursue any of the prohibited callings on Sunday. Every person is at liberty to pursue those which are excepted. The same discretion which authorized the legislature to determine that the public health, welfare, and eonvenience required the adoption of the general rule equally authorized it to exempt from its operation certain specified callings, on the ground that the public welfare and convenience would be more hindered than advanced by the suspension of such callings.
      “It is not for us to control the lawmaking power in such a case, or to require it to fit its laws to a Procrustean bed of our own construction.
      )¡í *{* . *f3 ¡I* í¡í ¡Jí !(í
      “Thus, on correct principles, sustained by overwhelming authority, we reach the conclusion that Act No. 18 of 1886, known as the ‘Sunday Law,’ is a legitimate exercise of the police power of the state, not violative of any inhibition contained in the constitutions-of the United States and of the state of Louisiana.”
     