# State v. Fantastic Fair & Karmil Merchandising Corp. > Supreme Judicial Court of Maine · November 30, 1961 · 158 Me. 450 URL: https://www.frixlaw.com/law-library/cases/4941789 ## Case - **Full name:** State of Maine v. The Fantastic Fair and Karmil Merchandising Corp. (Two cases) - **Court:** Supreme Judicial Court of Maine - **Decided:** November 30, 1961 - **Citations:** 158 Me. 450 - **Precedential status:** Published - **Opinion:** Concurrence by Webber - **Judges:** Dubord, Siddall, Sullivan, Tapley, Webber, Williamson - **Cited by:** 34 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4941789 ## Opinion text Webber, J. (Concurring) I concur in the result. I am, however, unable to agree that the exemption afforded to “stores selling gifts or souvenirs” meets constitutional requirements. I find as much difficulty in ascertaining what is embraced within the classification as an unanimous court had in Swed, et al. v. Bar Harbor, 158 Me. 220 . In that case the disputed classification was “bric-a-brac, linen stores.” We held that “bric-abrac as a category is too conducive to arbitrary abuse and unlimited cannot be utilized as a norm in a penal law. A person of ordinary intelligence would be habitually nonplused as to whether a store inventory included or was innocent of bric-a-brac.” In my view the category “stores selling gifts or souvenirs” suffers from the same fatal weakness. In a broad sense whether an item of merchandise is or is not a gift depends entirely on the subjective purpose of the giver. In a more narrow sense, if we attempt to relate the exempt line of business to that which we ordinarily associate with the so-called “gift shop,” we are still confronted by the fact that there are no accepted definitions of or understood limitations on the type of merchandise which may be properly considered as within the scope of the business. The court says in effect that “stores selling gifts or souvenirs” do not in any event sell “clothing, hardware, electrical appliances and the like.” Common knowledge would suggest the contrary, unless we refer only to full and complete lines of such commodities. Who has not seen in the well stocked “gift shop,” so-called, offering of women’s and children’s clothing, waffle irons, coffee percolators and the like? The variety of merchandise appears to vary with the imagination of the proprietor and his capital available for inventory. The objectionable statutory language does not even enjoy whatever descriptive limitation might have been afforded by use of the conjunctive “stores selling gifts and souvenirs” since it is couched *480 in the more sweeping disjunctive “gifts or souvenirs.” I conclude that reasonable business men could not determine with reasonable certainty whether or not they were keeping their places open on Sunday to conduct in whole or in part an exempt or a prohibited business activity. The respondents contend that if this be so, the entire statute must fall. It is therefore necessary to determine whether or not the offensive exemption is properly separable. On this question the cases are in conflict. In Swed we held the unconstitutional portion of the statute separable. The basic test is the intention of the Legislature and whether or not it may be fairly presumed that the Legislature would have enacted the statute, absent the objectionable portion. State v. Webber, 125 Me. 319, 323 ; Fairley v. City of Duluth (1921), 185 N. W. (Minn.) 390, 394; Frost v. Corporation Commission (1929), 278 U. S. 515 , 49 S. Ct. 235, 239 ; Eslin v. Collins (1959), 108 So. (2nd) (Fla.) 889; 11 Am. Jur. 855 , Sec. 161. A review of the history of the statute now before us discloses that we have long had a Sunday closing law, so-called, in effect. From time to time certain exempt categories have been added and that afforded to “stores selling gifts or souvenirs” is of most recent origin. I find here no intention of the Legislature to depart from its main objective of providing one day of rest in seven but exempting certain types of business out of consideration for the public necessity and convenience or the economic welfare of the state and its people. It is inconceivable to me that the Legislature would not have enacted the present statute, omitting only the objectionable exemption, had it deemed that its description of that particular exempt category would not meet constitutional requirements. I conclude that the offensive exemption is separable and- the remainder of the statute continues in full force and effect. That being so, the respondents neither gain nor lose since they are admittedly guilty of *481 keeping open “departments” for the sale of full lines of clothing, hardware, electrical appliances and the like in violation of law. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4941789. Public record. Not legal advice.