CALVERT, Chief Justice.
The State of Texas filed this suit to obtain a permanent injunction restraining Shoppers World, Inc., from violating Article 286a, Vernon's Ann.Penal Code, by selling or offering for sale certain merchandise on the consecutive days of Saturday and Sunday. Shoppers World defended on the ground that the sales and offers for sale strictly complied with the emergency purchase exemption contained in Section 4a of that article. The trial court granted the injunction, but its judgment was reversed and the injunction was dissolved by the Court of Civil Appeals, 373 S.W.2d 374.
We affirm the judgment of the Court of Civil Appeals.
The applicable sections of Art. 286a, Vernon's Ann.Penal Code provide:
An agreed statement of facts was submitted to the trial court in accordance with Rule 263, Texas Rules of Civil Procedure. Only those facts material to our decision will be noted. Respondent's store, located in Corpus Christi, is open for business on both Saturday and Sunday. The store sells and offers for sale one or more of the
At the check-out stand the purchaser lists the items on the certificate, and the cashier employee of the respondent reads this statement to the purchaser:
If the purchaser signs the certificate without hesitancy, the sale is made without further explanation or inquiry. If the purchaser refuses to sign, the sale is not made. If the customer is hesitant about signing, the store manager explains that the store is prohibited by law from selling particular items on the consecutive days of Saturday and Sunday unless the purchaser certifies in writing that the item is needed by the purchaser as an emergency for the welfare, health or safety of human or animal life and the purchase is an emergency purchase to protect the health, welfare or safety of human or animal life. The store manager then questions the purchaser about the existence and nature of the emergency. If after the explanation and inquiry the purchaser remains uncertain about signing the certificate, the item or items are not sold but are returned to the store shelves. These certificates are retained at the respondent's store for inspection.
No evidence other than the agreed statement of facts was heard or introduced in the trial court, yet the trial judge found additional facts which, presumably, entered into the judgment. In brief, he found that the certificates of necessity were used as a device for evading the prohibitions of Art. 286a, and that respondent acted in bad faith in having the purchasers sign the certificates. Based upon such findings, the trial court entered judgment permanently enjoining Shoppers World from selling or offering for sale the items enumerated in Art. 286a on the consecutive days of Saturday and Sunday, but the injunction further provided:
The Court of Civil Appeals dissolved the injunction on the ground that by including
The disposition of this case turns on the proper interpretation of the provision in Sec. 4a which we repeat:
In Crouch v. Craik, Tex., 369 S.W.2d 311, 315, we stated: "The power and authority to interpret Articles 286, 286a and 287 [Vernon's Penal Code] rests solely with the courts of this state exercising criminal jurisdiction." We must confess that the statement is much too broad. It is to be related to the context in which we were writing. The statement was intended to explain our adherence to the rule that courts of equity will take jurisdiction to enjoin enforcement of penal laws only in exceptional situations, thus leaving those laws to be interpreted through the criminal trial process whenever possible. The procedure by which this case reaches us does not permit us to relegate the parties to the criminal trial process for interpretation of Art. 286a. Sec. 4 of the Article declares a business operating contrary to its provisions to be a public nuisance, and provides that "any person may apply to any court of competent jurisdiction for and may obtain an injunction restraining such violation of this Act." That legislative direction requires the civil courts to interpret Art. 286a.
The position of the State is that this provision requires that two conditions exist before the sale of an item listed in Sec. 1 will be exempted from the general prohibition of Art. 286a. First, the purchaser must certify in writing that the item is needed as an emergency for the welfare, health or safety of human or animal life. Second, the purchase must in fact be an emergency purchase to protect the health, welfare or safety of human or animal life. The basis of this argument is that by using the conjunction "and" between the two clauses of the provision the Legislature intended to create not only the certification requirement but also the requirement that the emergency exist in fact.
The respondent contends that the provision in clear and unambiguous terms imposes one requirement only—that the purchaser certify in writing (1) that the item is needed as an emergency, and (2) that the purchase is an emergency purchase. The position of respondent thus is that once the purchaser has certified that both conditions exist, the seller is free to complete the sale without regard to the existence of an actual emergency. The premise of this argument is that both clauses of the provision follow the words "certify in writing that," and nothing indicates that the clauses should be considered to be making separate, distinct requirements. Alternatively, the respondent argues that if the clause is regarded as ambiguous, the State's interpretation cannot be accepted because that interpretation would render the section unconstitutional.
We hold that the quoted provision is ambiguous and that it must be given the interpretation placed on it by respondent.
The guiding rule of statutory interpretation is to ascertain legislative intent. 53 Tex.Jur.2d 180, Statutes, § 125. When the intent is clear it will be given effect by the courts even to the extent of adding words to the language used by the
If we could say that the interpretation placed on the quoted language of Sec. 4a by either of the parties was the only reasonable interpretation, we would regard our judicial obligation as at an end and would give the language that meaning. By interpolating the word "that" between the words "and" and "such purchase" in the second clause, the provision could be made to say clearly what respondent contends it now says. By interpolating the word "when" between the words "and" and "such purchase" the provision could be made to say clearly what petitioner contends it now says. Moreover, either revision would make the provision meaningful. Considered either as standing alone or in context with the remainder of the statute, or in pari material with Articles 286 and 287, we find no clue to legislative intent in the enactment of Sec. 4a which authorizes us to say that the one or the other revision is the only reasonable one. Neither do we find a clue to legislative intent in the legislative history of the enactment.
The statute had its origin in Senate Bill No. 35, passed by the First Called Session of the 57th Legislature. See Acts 57th Leg., 1st C.S., ch. 15, p. 38. Sec. 4a was not in the bill when it was introduced in the Senate; it was incorporated in the bill by amendment on third reading in the House of Representatives, and the amendment was adopted by unanimous consent. The language and punctuation of Sec. 4a is exactly as it appeared in the amendment. See House Journal, First Called Session, page 843. Being thus unable to resolve the ambiguity in the section from the only sources available, we turn to rules of construction to resolve it. The controlling rule of construction here is that which requires that a statute not be given the one of two reasonable interpretations which will render it unconstitutional and void. See McKinney v. Blankenship, 54 Tex. 632, 282 S.W.2d 691, 697; 53 Tex.Jur.2d 225, Statutes, § 158.
If Sec. 4a is interpreted as respondent interprets it, the obligations imposed on the seller of items of personal property are clear and definite and the section is constitutional and valid. Under that interpretation, the right to sell or to offer to sell without incurring penal sanctions is conditioned alone and altogether on certification by buyers that items are needed as an emergency for the welfare, health or safety of human or animal life and that the purchase is in fact an emergency purchase to protect the health, welfare or safety of human or animal life. The right to sell or the duty not to sell are thus made to rest on a subjective determination by the purchaser of the emergency nature of the purchase and that it is to protect the welfare, health or safety of human or animal life. If the certificate is made, a sale may be made without fear of criminal punishment. If the certificate is not made, a sale may not be made without risk of criminal punishment.
The situation is quite different if Sec. 4a is interpreted as petitioner interprets it. Under that interpretation the seller must, with respect to every sale, make an objective determination as to whether the purchase is an emergency purchase and whether the items are needed to protect the health, welfare or safety of human or animal life. A sale can never be made without risk of incurring criminal penalties since the statute provides no guides or criteria for making the determination.
It is well settled that a penal statute may be so vague and indefinite that it violates the right guaranteed to an accused by Sec. 10, Art. 1, Texas Constitution, Vernon's Ann.St., to "demand the nature and cause of the accusation against him." Griffin v. State, 86 Cr.Rep. 498, 218 S.W. 494;
How can a seller determine whether a purchase is an emergency purchase for the "welfare" of human or animal life? The word "welfare" has a variety of meanings, as respondent points out. Webster's Third New International Dictionary defines "welfare" as "the state of faring or doing well: thriving or successful progress in life: a state characterized esp. by good fortune, happiness, well-being, or prosperity. * * one's condition in regard to health, happiness, or prosperity." It would seem obvious on the face of it that whether any particular purchase is an emergency purchase to protect the happiness or well-being of human life can be determined only subjectively by the purchaser; and that if the section be construed as imposing a duty on the seller to make an objective determination of the matter, he will be subjected to criminal penalties for failing to discharge an impossible obligation. Cases such as Gann v. Keith, 151 Tex. 626, 253 S.W.2d 413, which uphold the validity of statutes as prescribing rules of civil conduct though they may be too indefinite to predicate criminal proscriptions, are not applicable here. Art. 286a is strictly a penal statute, not a statute prescribing a rule of civil conduct. And even though this is a civil proceeding, penal sanctions would be imposed if respondent should violate the injunction and thus be in contempt.
Our holding of indefiniteness is a narrow one. It has been made narrow deliberately. We are not to be understood, however, as holding or inferring that we would uphold the validity of Sec. 4a if it required only that a seller make an objective determination as to whether a purchase is an emergency purchase. The reasoning in the decisions of the Supreme Court of Kansas in State of Kansas v. Hill, 189 Kan. 403, 369 P.2d 365, 91 A.L.R.2d 750, and the Supreme Court of Missouri in Harvey v. Priest, Mo., 366 S.W.2d 324, would be strongly persuasive against validity. In those cases it was held that Sunday closing laws which excepted sales of articles "of immediate necessity" were invalid for indefiniteness.
It is difficult to conceive of any set of circumstances under which a purchase of most of the articles listed in Section 1 of Art. 286a could be an "emergency purchase" as one would normally interpret that phrase; but by the provisions of Sec. 4a the Legislature has expressly said that a purchase of any of them may be, and it is not in our province to decree otherwise.
In order to uphold the constitutionality of Sec. 4a, we construe the section as requiring as a condition of the right to sell the listed articles on both Saturday and Sunday only a certificate of the purchaser that an item is needed as an emergency for the welfare, health or safety of human or animal life and that the purchase is in fact an emergency purchase to protect the health, welfare or safety of human or animal life. The certificate required by respondent is in strict compliance with the section. The duty is not imposed on respondent to determine whether the certificate is signed in good faith. The agreed facts do not show that respondent has been selling the listed items on both Saturday and Sunday without obtaining the certificate; and there is, therefore, no basis for the injunction granted by the trial court.
The judgment of the Court of Civil Appeals reversing the judgment of the trial court and dissolving the injunction is affirmed.
I agree with the judgment, but disagree with the reasons advanced in support thereof. In its effort to uphold the constitutionality of Article 286a, this Court admits that the Act can be held constitutional only by holding that Section 4a of the Act requires a certificate of the purchaser that an item is needed as an emergency for the welfare, health or safety of human or animal life and that the purchase is in fact an emergency purchase to protect the health, welfare or safety of human or animal life.
The Court also admits that its holding of "indefiniteness is a narrow one." The Court then protects itself by candidly stating that "[We] are not to be understood, however, as holding or inferring that we would uphold the validity of Sec. 4a if it required only that a seller make an objective determination as to whether a purchase is an emergency purchase."
It seems to me that the true question should be faced. The paramount question is whether we are going to hold Article 286a valid, as the Court has here, and thereby legalize a pure subterfuge designed to permit the violation of Articles 286
To hold that Section 4a
It is argued that whether or not Texas should have a "Sunday Closing Law" is not before this Court and that, therefore, we are not concerned with the validity of Article 286, supra. I recognize that to enact a "Sunday Closing Law" is solely within the prerogative of the Legislature, but I contend that the argument the respondent has advanced to demonstrate the unconstitutionality of Article 286a is unanswerable.
It is my position that Article 286a, supra, is an irredeemable violation of the Constitutions of the United States and the State of Texas. Of course Article 286 has been left as a part of the law for many years, but the enactment of Article 286a has pointed up the unconstitutionality of the entire statutory scheme of Sunday closing in Texas. Although Article 286 has been held constitutional, in a sense the Legislature has from time to time recognized that it was necessary to enact legislation either repealing or modifying Article 286. The Legislature has chosen the latter course only to bring about hopeless confusion. This Court by its decision has not resolved the question.
It is my view that Article 286a is unconstitutional and should be so held by this Court. The Respondent argues that:
I cannot agree. The entire Act, let alone Section 4a, is so indefinitely framed and of such doubtful construction that its tests of enforcement are, of necessity, subjective rather than objective, thereby violating the fundamental guarantees of due process of law granted in the Texas and United States Constitutions. For example, the meaning of "any person" in Section 1 does not apply to corporations by virtue of provisions of our Penal Code and an opinion of the Attorney General of Texas. That opinion, Number WW-1450, held:
"Section 1 of Article 286a * * * applies to any person, and provides that a violation thereof is a misdemeanor offense. This section cannot apply to corporations * * *." (Emphasis added). Furthermore, Article 286a does not create a penal offense which can be committed by an employee of a natural person nor does it create an offense which can apply to a corporation or its employees.
It should be noted that no definitions are given of the words "certify," "emergency," "welfare," "health," "safety," "human life" or "animal life," contained in Section 4a. This section uses the term "emergency" but provides no standard by which the existence of an emergency may be gauged. "Emergency can mean different things to different people depending upon the manner of its use, whether it is being used in tort law or is used in a contract." See In Re: Tschoepe et al., 13 F.Supp. 371, District Court Southern District, Corpus Christi, 1936.
I call your attention to the last sentence of Section 4a, which reads: "Provided such certification signed by the purchaser is retained by the merchant for proper inspection for a period of one (1) year." Thus, depending on which way the Court holds, Section 4a either places the merchant in the unenviable position of being subject to criminal prosecution if his concept of
It is true that the merchant in this case professed allegiance to the law until "you change it." However, the record in this case shows that an average of approximately fifteen (15), out of a total number of Sunday purchasers substantially in excess of 200, indicated hesitancy or doubt about signing the certificate. In view of the failure of the law to define welfare, emergency, etc., together with the statement of policy announced by the merchant, I am constrained to believe that those who signed were not intentionally signing untrue certificates, but were misled or trapped into aiding the merchant in making a sale. Granting that the merchant was acting within the law, it is unescapable that the law declared in 286a is shocking and should be stricken down. We have a situation where the law apparently attempts the imposition of an objective test on the merchant to make an objective determination as to whether any purchase is an emergency purchase, and where the law also provides that the test of the exemption shall be the subjective test of the purchaser's determination of the existence of an emergency. However, it conclusively appears that the statute under consideration is so vague and indefinite that men of common intelligence must guess as to its meaning and differ as to its application. We have a difference of opinion as to the meaning and application of the Act. I would apply the rule announced in Ex parte Chernosky, Criminal Appeals, 1949, 217 S.W.2d 673:
Aside from the reasons advanced thus far as to why Article 286a is unconstitutional, I briefly add that Article 286a is unconstitutional because the caption of the Act is fundamentally defective for either or both of the following reasons:
(a) Although Article 286a presumes to be a penal statute, there is no mention of penalties in the caption.
In conclusion I adopt the summation contained in the brief of Amicus Curiae, Jay S. Fichtner, an attorney of Dallas, Texas:
For the reasons stated, I would strike down the statute, and dissolve the injunction granted by the trial court.
"WE ASK THAT YOU COOPERATE WITH US IN OUR COMPLIANCE WITH THE NEW SUNDAY BLUE LAW, WHICH IS ADMITTEDLY AND DELIBERATELY DESIGNED TO LESSEN YOUR OPPORTUNITY TO SAVE AT DISCOUNT STORES SUCH AS SHOPPERS WORLD, A LAW WHICH WE DISAPPROVE OF AS UNFAIR AND CONTRARY TO THE AMERICAN WAY OF LIFE, BUT NEVERTHELESS, A LAW WHICH WE MUST AND WILL OBEY UNTIL