
    The State of Ohio, Appellee, v. Haase, Appellant.
    
      (No. 22928
    Decided December 7, 1953.)
    
      Mr. Roger A. Zucker, for appellee.
    
      Messrs. Ulmer, Berne, Laronge, Olickman S Curtis and Mr. Robert L. Lewis, for appellant.
   Skeel, J.

This appeal comes to this court on questions of law from a judgment entered in the Police Court of the city of Cleveland Heights, Ohio, finding the defendant guilty of a violation of Section 13044, General Code (Section 3773.24, Revised Code). The defendant is a part owner of a hardware store located at 2078 South Taylor Road, and known as the Barr Hardware Store. On April 5,1953, which was Sunday, or the first day of the week, an officer of the police department of the city of Cleveland Heights went to defendant’s hardware store and found it open for business, with the defendant in charge. One of the state’s witnesses testified that defendant told him the store was open for business seven days a week. The defendant did not take the witness stand in his own defense or by his own testimony dispute any of the material allegations of the affidavit which was filed on April 5, 1953, as the basis of this action. The defendant before trial filed a motion to qnash, claiming Section 13044, General Code (Section 3773.24, Revised Code), to be unconstitutional, and that the affidavit did not state an offense punishable under the laws of Ohio. The motion should have been designated, ‘ ‘ demurrer, ’ ’ particularly in raising the question of the constitutionality of Section 13044, General Code (Section 3773.24, Revised Code), as provided by Section 2941.58, Revised Code. Davis v. State, 32 Ohio St., 24; State v. Bateman, 7 N. P., 487, 10 O. D. (N. P.), 68. The trial court overruled the motion.

Upon trial, the defendant proffered testimony that hardware stores in cities and villages contiguous to the city of Cleveland Heights were open on Sunday, that his opening on Sunday was necessary to meet such competition, and that the following businesses were permitted to operate in the city of Cleveland Heights without being arrested for violating the Sunday closing law (Section 3773.24, Revised Code.): Drug

stores in which items of hardware (such as are for sale in defendant’s store) are offered for sale on Sunday; gasoline stations; garages; a radio and television sales and repair shop; real estate offices; a shoe store; a store selling garden and lawn equipment, seeds, fertilizers and the like; and other stores of like character, all of which evidence was excluded by the court.

The defendant claims the following errors:

“1. In overruling motion to quash.
“2. In exclusion of evidence of other businesses being operated and allowed to remain open on Sunday [said evidence being proffered by cross-examination of state’s witnesses and witnesses offered by the defendant] .
“3. In excluding the testimony of the arresting officer proffered on cross-examination as to what, in his opinion, was a work of ‘necessity.’
“4. In refusing to enter judgment for defendant at the close of all the evidence.
“5. In overruling defendant’s motion for new trial. ’ ’

Three questions are presented:

1. Did the state make out a case without proof that defendant’s business was not, as operated by him on April 5, 1953, one of “necessity” under the saving clause of the statute?
2. Is the statute constitutional? (Section 3773.24, Revised Code.)
3. Does the enforcement of the statute unequally, that is, causing defendant’s arrest for conducting his hardware business on Sunday, without interfering with others who conduct like businesses on Sunday which are not such as come within the saving clause of the act, constitute a violation of defendant’s constitutional rights under the Fourteenth Amendment of the Constitution of the United States and of Section 2, Article I of the Constitution of Ohio, guaranteeing to him equal protection under the law?

There is some authority in other states that one or more of the exceptions contained in the saving clause of the Sunday closing law, according to the facts of the case, must be negatived in the complaint and such negative fact established by the state in making out its case. 50 American Jurisprudence, 828. " But under the law of Ohio, unless such negative averment is necessary as a part of the description of the crime charged, it need not be alleged in the complaint or established by evidence as a part of the state’s case. In Billingheimer v. State, 32 Ohio St., 435, paragraph two of the syllabus provides:

“ 2. A negative averment to the matter of a proviso in a statute, is not requisite in an information, unless the matter of such proviso enters into and becomes a part of the description of the offense, or is a qualification of the language defining or creating it. ’ ’

See, also, Hirn v. State, 1 Ohio St., 15; Cheadle v. State, 4 Ohio St., 477; Becker v. State, 8 Ohio St., 391; Strenglien v. State, 17 Ohio St., 453; Moody v. State, 17 Ohio St., 111; Hale v. State, 58 Ohio St., 676, 51 N. E., 154; and 153 A. L. R., 1277 (paragraph 111, “exception not in the enacting clause”).

In the opinion of the Strenglien case, supra, at page 461, the court quoted from 1 Wharton’s American Criminal Law, Section 378, as follows:

“ ‘If provisos and exceptions are contained in distinct clauses, it is not necessary to state in the indictment that the defendant does not come within the exceptions, or to negative the provisos it contains. ’ ‘For all these are matters of defense, which the prosecutor need not anticipate, but which are more properly to come from the prisoner.’ ”

At the time this prosecution was commenced, Section 13044, General Code, defined the elements of the crime charged against defendant as keeping his hardware store open on Sunday for the transaction of general business. The exceptions to the statute were contained in separate sections, that is, Section 13045, General Code, and Section 13046, General Code, the first of these sections providing for the exception contended for by defendant. So that here not only is the exception contained in a separate clause of the statute, but in a completely separate section. The fact is that in the Revised Code, effective in Ohio as of October 1, 1953, these three sections have been put into a single section (Section 3773.24, Revised Code), but in separate paragraphs, and the recodification did not change the meaning or interpretation of our statutes.

Under the bigamy statute, Section 13022, General Code (Section 2905.43, Revised Code), the exception extends to one whose husband or wife had been absent continuously for five years next preceding the second marriage without being known to such person to be living within that time. The state need not negative such exception in the indictment and a defendant claiming to come within the exception must establish such claim as a defense. Strenglien v. State, supra.

Under the carrying concealed weapons statute, Section 12819, General Code (Section 2923.01, Revised Code), an exception is provided in Section 13448-4, General Code (Section 2945.76, Revised Code), that if a prudent person would be justified in carrying a weapon in defense of himself, property or family, under the circumstances, and the defendant was engaged in a lawful business such circumstances should require a jury to acquit defendant. The courts have been unanimous in holding that this exception to the carrying concealed weapons charge constituted an affirmative defense and that the state had no burden to negative it either in the indictment or on trial of the action. Porello v. State, 121 Ohio St., 280, 168 N. E., 135; Fink v. State, 40 Ohio App., 431, 178 N. E., 700; Hart v. State, 42 Ohio App., 501, 182 N. E., 534.

There is no doubt that conducting a general hardware business on Sunday does not come within the exception of “necessity” under the saving clause of the statute any more than would be true of carrying on a general drygoods business, a millinery business, a bakery business or grocery business, and all businesses of like character on Sunday. Of course, these businesses are very necessary as a part of our economic and social requirements, but this is not the meaning of the words, “work of necessity or charity,” as used in Section 3773.24, Revised Code (Section 13045, General Code). People can, by ordinary foresight, provide themselves with whatever goods seem convenient or necessary for their needs on days of the week other than Sunday. To provide against such business transactions on Sunday was the very purpose of the law. Judge Lieghley (formerly of this court), while on the Common Pleas Court of Cuyahoga County, in the case of Straka v. State, 16 N. P. (N. S.), 554, 25 O. D. (N. P.), 436, in holding the operation of a bakery on Sunday to be a violation of Sections 13044 and 13045, General Code (Section 3773.24, Revised Code), said:

“It is my opinion that ‘necessity,’ as comprehended by this section of the statute, with few exceptions, arises from conditions or circumstances caused by an agency, either in whole or in part, over which man has no control. For instance, it has been held that the distribution of milk on Sunday is a necessity in view of the fact that the production of fresh milk is by nature’s decree daily, and therefore daily distribution of the same is necessary (58 Kans., 328-30). Again, it would doubtless be regarded as a necessity that probably all stores might be open on Sunday, temporarily, following a catastrophe like the Dayton flood, or the Collingwood tragedy. For other instances, see authorities cited above.”

We are, therefore, compelled to conclude that the state produced sufficient evidence to make out a case against the defendant under Section 3773.24, Revised Code, in opening his hardware store for regular business on Sunday, and if it was the defendant’s claim that what he was doing at the time of his arrest comes within the exception of necessity, such claim constitutes an affirmative defense which the defendant must establish by the greater weight of the evidence. This he did not attempt to do.

The next claim of the defendant challenges the constitutionality of the statutes (Sections 13044 and 13045, General Code, now Section 3773.24, Revised Code). It is the claim of defendant that these sections, together with the remaining sections in Chapter 13, “Sabbath Desecration” (which sections must be considered in pari materia), áre unconstitutional:

(a) As an arbitrary exercise of the police power of the state.
(b) In depriving the defendant of his property without due process of law.
(c) That its enforcement as against him and not others similarly situated, is a denial of the equal protection of the law, in violation of the Fourteenth Amendment of the Constitution of the United States and Section 2, Article I of the Constitution of the state of Ohio.
(d) That the administration and enforcement of the the statute renders it a denial of the equal protection of the foregoing constitutional provisions.
(e) That said statutes constitute an unreasonable interference with rights of private properties in violation of Section 19, Article I of the Constitution of Ohio.

Sections 13044, 13045 and 13046, General Code, provide :

“Section 13044. Whoever being over fourteen years of age, engages in common labor or opens or causes to be opened a building or place for transaction of business, or requires a person in his employ or under his control to engage in common labor on Sunday, on complaint made within ten days thereafter, shall be fined twenty-five dollars, and for each subsequent offense, shall be fined not less than fifty dollars, nor more than, one hundred dollars, and imprisoned not less than five days nor more than thirty days.”
‘ ‘ Section 13045. The next preceding section shall not apply to work of necessity or charity and does not extend to persons who conscientiously observe the seventh day of the week as the Sabbath, and abstain thereon from doing things herein prohibited on Sunday. ’ ’
“Section 13046. The provisions of Section thirteen thousand and forty-four shall not prevent emigrating families from travelling, watermen from landing their passengers, or keepers of toll-bridges, toll-gates or ferries from attending them on Sunday.”

As stated above, these sections have now by the re-codification of the Ohio statutes been incorporated into Section 3773.24, Revised Code, without change in the subject matter. The balance of the sections in Chapter 13 of “Part Fourth: Penal” of the General Code of Ohio, entitled “Sabbath Desecration,” provide against sporting, rioting, quarrelling, hunting, fishing, or shooting, participating in exhibitions to the public with or without charge, in a building, room, grounds or garden, a theatrical or dramatic performance or an equestrian or circus performance of jugglers, acrobats, rope dancing, or sparring exhibitions, variety shows, negro ministrelry, living statutary, ballooning, baseball in the forenoon, exhibition of moving pictures in the forenoon, etc. These provisions permit baseball and moving picture shows in the afternoon on Sunday, trap-shooting in a regular gun or fishing club, and conducting regular business on Sunday, if the one claiming the right, by reason of his religious belief, to conduct such business, observes the seventh day of the week as the Sabbath, and also permits works of necessity or charity, and does not prohibit emigrating families from travelling, watermen from landing their passengers, or keepers of toll-bridges, toll-gates or ferries from attending them on Sunday.

It is to be noted that except for attending the means of public travel and engaging in sports (professional baseball being held to be a sport and not business by the United States Supreme Court, in Toolson v. New York Yankees, Inc., [1953], 346 U. S., 356, 98 L. Ed., 20, 74 S. Ct., 78) or other forms of public entertainment or recreation, the only permissible Sunday business activities are works of necessity and charity. The statutes of Ohio, therefore, do not permit some businesses to operate on Sunday and deny the same right to others of like character and the decisions holding Sunday closing laws unconstitutional because they permit some businesses to operate on Sunday and deny the same right to others are not applicable. Allen v. City of Colorado Springs, 101 Colo., 498, 75 P. (2d), 141; Henderson v. Antonacci (Florida, 1952), 62 S. E. (2d), 5.

In the case of Allen v. Colorado Springs, supra, Allen was convicted of operating a grocery store on Sunday in violation of a Sunday closing ordinance in which exceptions were made as to some businesses, including within the exceptions a drugstore. The court in holding the ordinance unconstitutional said in paragraphs one and three of the syllabus:

“1. A city, in the exercise of the police power, has authority by general ordinance to prohibit the carrying on within its limits of all businesses or occupations on Sunday, except those of necessity or charity.”
“3. A municipal ordinance which makes it unlawful to keep open any store for the sale of merchandise on Sunday, but which exempts from its operation certain establishments, including drugstores, the latter dealing in many articles, the sale of which on Sunday by other houses is prohibited under the terms of the ordinance, held discriminatory and invalid.”

Many cases are not in accord with the foregoing authorities and hold that where discriminations are contained in an ordinance or law restricting business on Sunday, that the legislative body acted on the facts within its knowledge which justified its classification as reasonable and proper.

These cases are collected in a comprehensive note in 46 A. L. R., 290 (see paragraph II, page 292). The purpose of Sunday closing laws being in the interest of the public welfare, and in support of the religious and devotional life of the community, providing for a day of rest and possibly recreation, they must be liberally construed in favor of their validity and as being within the constitutional powers of the Legislature. In 38 Ohio Jurisprudence, 349, Section 9, the author says:

“Laws relating to the observance of Sunday have been uniformly recognized as a legitimate exercise of the police power. These laws, fixing regularly running days of rest for all secular pursuits, are within the power of the Legislature to adopt such wholesome regulations as may be necessary to promote the peace, health, and well-being of society. In fact, the state may, as a police regulation for the promotion of the physical, mental, and moral welfare of its citizens, establish as a civil and political institution the first day of the week as a day of rest and prohibit the performance upon it of all labor or business except works of necessity or charity. Accordingly, Sunday legislation, including both statutes and ordinances, prohibiting common labor, barbering, baseball, hunting, etc., on Sundays, has been upheld.”

The constitutionality of Ohio laws passed in the interest of the observance of Sunday as a day of rest, has been upheld by the Supreme Court in the following cases: State v. Powell, 58 Ohio St., 324, 50 N. E., 900, 41 L. R. A., 854; Stanfeal v. State, 78 Ohio St., 24, 84 N. E., 419.

We conclude, therefore, that Section 13044, General Code (Section 3773.24, Revised Code), is not in conflict with any of the provisions of either the federal or state Constitutions.

The claim of error in rejecting evidence as to probable violation of the Sunday closing laws by others, who were not prosecuted by the authorities, thereby depriving defendant of equal protection under the law, is not well taken.

From the record and the proffered evidence in this case it is probable that many violations of the Sunday closing laws are not challenged by the enforcement agencies of the city of Cleveland Heights. It was claimed in argument that the provisions of the law in many respects seem not to fit into the pattern of modern living. It will come as a surprise to many ardent fishermen that the law prohibits them from enjoying such recreation on Sunday. No one, however, need come to the defense of the need for Sunday closing laws. In proper form they speak the will of the people. They have had a long history of supporting the public will that Sunday should be devoted to rest and religious devotion. Such laws are to be found in the history of legislation almost from the beginning of modern civilization, finding their support no doubt from the Third Commandment, “Remember that thou keep holy the Sabbath Day.”

In 83 Corpus Juris Secundum, 800, Subdivision II, “Regulation and Enforcement of Sunday Observance,” under the heading, “General History,” we find the following:

“The observance of Sunday is recognized by Constitutions and legislative enactments, both state and federal, and Sunday prohibitory laws are said to have been enacted in all the states. Such laws are said to have a religious or divine origin.
“Sunday legislation is more than fifteen centuries old; it originated in Rome in A. D. 321, when Constantine the G-reat passed an edict commanding all judges and inhabitants of cities to rest on the venerable day of the Sun. Sunday statutes were passed at an early date in England and 29 Charles II c 7 has been made the basis of similar legislation in many of the states # # * > ?

It might be said that a greater acceptance by the people of the fundamental purpose of these statutes would help in solving many of our difficult social problems. Courageous leadership in bringing about a greater understanding of their value would indeed be most beneficial.

But these are matters which come exclusively within the jurisdiction of law enforcing officers, legislative bodies and educational leaders. Courts must impartially interpret the law in cases commenced within their respective jurisdictions. The fact that one person is prosecuted and another is not is a subject with which the court cannot deal.

In the case of State v. Corologos, 101 Vt., 300, at page 307, 143 A., 284, 59 A. L. R., 1541, the court, in dealing with this question as a defense, said:

‘ ‘ If so, it was a discrimination in the administration of the law and not in the law itself, and manifestly had no bearing on the question of respondents’ guilt or innocence. One offender cannot excuse his conduct by showing that someone else equally guilty has not been prosecuted.”

We find no error in excluding such evidence.

For the foregoing reasons, the judgment of the Police Court of the City of Cleveland Heights, finding the defendant herein guilty of violating Section 13044, General Code (Section 3773.24, Revised Code), is affirmed.

Judgment affirmed.

Hurd, P. J., and Kovachy, J., concur.  