APPEAL from the Superior Court of Cook County; the Hon. GEORGE
M. FISHER, Judge, presiding.
MR. CHIEF JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 16, 1956.
The plaintiffs-appellants, who are automobile dealers in the city of Evanston, sought by this suit in the superior court of Cook County to enjoin the city and certain municipal officials from enforcing against them a Sunday closing ordinance and asked the court to declare said ordinance unconstitutional as applied to them. The court, however, holding the ordinance valid, sustained a motion to dismiss the complaint.
The plaintiffs appeal to this court, the trial court having certified that the validity of a municipal ordinance is involved and that the public interest requires a direct appeal.
The Evanston city council enacted the ordinance, a comprehensive measure applicable to all phases of Sunday business activity, on March 21, 1955. As stated in a portion of the preamble, it purports to be a police power ordinance designed to protect, promote and preserve the comfort, quiet, convenience and welfare of the city's inhabitants.
The body of the ordinance is classified under the following headings: A. Wholesale and Retail Mercantile and Merchandising Establishments. B. Manufacturing and Construction Work. C. Repair and Maintenance Work. D. Personal Services and Ordinary Labor.
The business activity of the plaintiffs (who allege that they operate establishments for the selling of new and used automobiles) falls within the purview of said section A, which reads as follows: "It shall be unlawful for any person, firm, corporation, or association to engage in the business of selling, dispensing, renting, or distributing, at wholesale or retail, goods, wares, or merchandise of any kind or description, from an established place of business, on the first day of the week, commonly called Sunday, within the City of Evanston; provided, however, that this section shall not be applicable to works of charity or to the sale of drugs or medicine, the sale or dispensing of articles of food or drink for human consumption on the premises of the seller; the sale of milk, ice cream, ice, gasoline, lubricating oil, or to the sale of articles and products necessary to meet the emergency needs on Sunday of the residents of the City of Evanston."
The final paragraph of the ordinance provides for a fine of not less than $25 nor more than $200 for a first offense, and a fine of not less than $50 nor more than $200 for a subsequent offense.
The plaintiffs, in asserting the unconstitutionality of the ordinance, contend that City of Mt. Vernon v. Julian, 369 Ill. 447, is controlling. The defendants, however, insist that the ordinance is a reasonable exercise of the city's police power and differs substantially from the ordinance considered in the City of Mt. Vernon case.
The issue properly resolves itself into two questions: (1) Does the city of Evanston have authority generally to enact a so-called Sunday closing ordinance? (2) As applied to the plaintiffs, is the ordinance in question a reasonable exercise of said authority?
First, there is no doubt but that an Illinois city may by ordinance, as a valid exercise of its general police power, prohibit certain business activity on Sunday. (McPherson v. Village of Chebanse, 114 Ill. 46; City of Springfield v. Richter, 257 Ill. 578; City of Clinton v. Wilson, 257 Ill. 580; City of Mt. Vernon v. Julian, 369 Ill. 447, 449. See also McQuillin, Municipal Corporations, sec. 24.188; 50 Am. Jur. Sundays and Holidays, sec. 9; 83 C.J.S., Sunday, sec. 3-d.) For Sunday has been observed traditionally as a day on which the normal, nonessential, non-emergency activity of the business world ceases. This has been achieved primarily by voluntary compliance with custom, but it is everywhere recognized that legislative bodies may properly act to preserve this deep-rooted, nation-wide custom, providing only that the measures adopted are reasonable. This, then, brings us to the second question the reasonableness of this ordinance as applied to the plaintiffs' operations.
In general, there are three principal types of Sunday closing legislation: (1) That which prohibits only particular types of business establishments but permits all others to open. (See Eden v. People, 161 Ill. 296, where this court invalidated a law which required barber shops only to close on Sunday.) (2) That which contains a general closing provision but exempts certain businesses from the operation of the law, while permitting businesses selling the same products to remain open. (See City of Mt. Vernon v. Julian, 369 Ill. 447.) (3) That which prohibits all business activities but exempts the sale of certain commodities from the operation of the law, such as the instant ordinance which is commonly referred to as a "commodity type" ordinance.
While this court has never been called upon to determine the validity of this "commodity type" legislation, such enactments have been consistently upheld in other jurisdictions. (See: State v. Diamond, 56 N.D. 854; City of Seattle v. Gervasi, 144 Wn. 429; Ness v. City of Baltimore, 162 Md. 529; State v. Justus, 91 Minn. 447; People v. Zimmerman, 95 N.Y. Supp. 136; Theisen v. McDavid, 34 Fla. 440; People v. Kratkiewicz, 238 Mich. 644; State v. Grabinski, 33 Wn.2d 603. Cf. Broadbent v. Gibson, 105 Utah 53.) Actually, in some instances laws directed solely against automobile dealers have been sustained. Rosenbaum v. City of Denver, 102 Colo. 530; Irishman's Lot v. Cleary, 338 Mich. 662.
Many States have comprehensive Sunday closing laws with classifications and exceptions similar to those contained in the foregoing section of the Evanston ordinance. New York Penal Law, art. 192, sec. 2147; Massachusetts Ann. Laws, sec. 6 of chap. 136; Purdom's Pennsylvania Stat. Ann., title 18, sec. 4699.4; Minnesota Stat. Ann. § 614.29; Vernon's Ann. Missouri Stat. § 563.720; Burns Indiana ...