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Bob Ferguson

AGO 1962 No. 120 - Apr 23 1962
Attorney General John J. O'Connell


(1) The portion of a lease which requires a lessee to keep his place of business open on Sundays for the purpose of selling merchandise in violation of RCW 9.76.010 (day of rest or Sunday closing law) is illegal, void and unenforceable.

(2) The portion of a collective bargaining agreement between a labor organization and an employer which requires employees to perform work or labor on Sunday in violation of RCW 9.76.010 (and not within one of the exceptions contained therein) is illegal, void and unenforceable.

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                                                                   April 23, 1962

Honorable Ann T. O'Donnell
State Representative, 37th District
1815 East Harrison
Seattle, Washington

                                                                                                              Cite as:  AGO 61-62 No. 120

Dear Miss O'Donnell:

            By letter previously acknowledged you have directed our attention to RCW 9.76.010 (relating to the performance of certain activities on Sunday).  Regarding this statute, you have requested our opinion on the following questions:

            (1) Is that portion of a lease which requires the lessee to keep his place of business open on Sundays for the purpose of selling merchandise in violation of the statute, illegal, void and unenforceable?

            (2) Is that portion of a collective bargaining agreement between a labor organization and an employer, which provides that employees who work on Sunday shall be paid premium wages, also illegal, void, and unenforceable?

            We answer your first question in the affirmative, and your second question in the manner set forth in our analysis.


            RCW 9.76.010, the statute in question, provides:

             [[Orig. Op. Page 2]]

            "Every person who, on the first day of the week, shall promote any noisy or boisterous sport or amusement, disturbing the peace of the day; or who shall conduct or carry on, or perform or employ any labor about any trade or manufacture, except livery stables, garages and works of necessity or charity conducted in an orderly manner so as not to interfere with the repose and religious liberty of the community; or who shall open any drinking saloon, or sell, offer or expose for sale, any personal property, shall be guilty of a misdemeanor:Provided, That meals, without intoxicating liquors, may be served on the premises or elsewhere by caterers, and prepared tobacco, milk, fruit, confectionery, newspapers, magazines, medical and surgical appliances may be sold in a quiet and orderly manner.  In works of necessity or charity is included whatever is needful during the day for the good order or health or comfort of a community; but keeping open a barber shop, shaving or cutting hair shall not be deemed a work of necessity or charity, and nothing in this section shall be construed to permit the sale of uncooked meats, groceries, clothing, boots or shoes."

            This statute, of course, is a criminal statute.  That is, the statute subjects those persons who engage, ". . . on the first day of the week . . .", in the activities thereby prescribed, to prosecution for a criminal offense.  State v. Grabinski, 33 Wn. (2d) 603, 206 P. (2d) 1022 (1949) (upholding the constitutionality of the statute as a proper exercise of the state's police power).  InState v. Grabinski, supra, the Washington court described the purpose of the legislation as follows:

            "Such legislation as that under consideration should be regarded as day-of-rest legislation rather than as Sabbath or Sunday closing laws. . . .

            "In 1909, when . . . [RCW 9.76.010], was enacted, the first day of the week naturally was selected asthe compulsory day of rest, because for centuries trade, commerce, and industry had generally ceased on that day. . . ."  (Emphasis supplied)

             [[Orig. Op. Page 3]]

            Given the proposition that the performance, on Sunday, of certain conduct or activities constitutes a criminal offense, does it follow (you, in effect, ask) that a contractual provision which (1) requires or (2) rewards, the performance of such conduct or activities is void and unenforceable?

            The Washington court has never answered either facet of this question.  However, the Washington court has announced the general proposition that a contract to do an illegal act cannot be enforced.  Marble v. Clein, 55 Wn. (2d) 315, 347 P. (2d) 830 (1959).  See, also,Hederman v. George, 35 Wn. (2d) 357, 212 P. (2d) 841 (1949);State v. Northwest Magnesite Company, 28 Wn. (2d) 1, 182 P. (2d) 643 (1947);Reed v. Johnson, 27 Wash. 42, 67 Pac. 381 (1901), and authorities cited therein.

            InJacobs v. Clark, 112 Vt. 484, 28 A. (2d) 369 (1942), the Supreme Court of Vermont was presented with a problem strikingly similar to that presented by your first question.  Suit was brought to recover damages on a theory of breach of contract for the violation of a condition contained in a quit claim deed of certain service station property.  The deed provided, insofar as is material, as follows:

            "'And the said grantees, for themselves and their heirs, administrators and assigns, agree that as part of the consideration for this deed they shall keep between the hours of 7 A.M. and 9 P.M. on weekdays and between the hours of 8 A.M. and 8 P.M. on Sundays the premises ready for sale on said premises gasoline, oil, greases and petroleum products provided for them by the grantor herein.'"  (Emphasis supplied)

            A Vermont statute provided that "A person shall not between twelve o'clock Saturday night and twelve o'clock the following Sunday night exercise any secular business or employment, except works of necessity and charity . . .".  Like our own RCW 9.76.010,supra, this was a penal statute.

            On the basis of this statute, the defendant's undertaking to remain open for business on Sundays was held unenforceable.  That is, the court held, in effect, that the defendant was not liable in damages for his failure to perform the condition.

            The rule is stated in 83 C.J.S., Sunday, § 32 (p. 858) as follows:

            ". . . a contract, . . . requiring or contemplating the performance on Sunday of acts coming within the prohibitions and outside  [[Orig. Op. Page 4]] the exceptions of applicable Sunday enactments, is a contract with an unlawful object and hence void."

            Clearly, application of this rule means (in terms of our own RCW 9.76.010,supra) that a contractual provision requiring performance, on Sunday, of an act which violates the statute cannot be enforced.  Thus, we answer your first question in the affirmative; i.e., we advise that a contractual provision in a lease which requires the lessee to keep his place of business open on Sundays for the purpose of selling merchandise in violation of RCW 9.76.010,supra, in unenforceable.

            By your second question you have asked whether,

            ". . . that portion of a collective bargaining agreement between a labor organization and an employer, which provides that the employees who work on Sunday, . . . shall be paid premium wages, [is] also illegal, void, and unenforceable?"

            By this question we take it that you are not asking whether the employees covered by the collective bargaining agreement in question can be compelled to work on Sunday.  Our answer to your first question would cover this aspect of the problem.

            Rather, we assume the essence of your second question to be whether or not, if the employees in question do work on Sunday, they can recover the premium wages provided for by the agreement.

            Initially, it should be noted that the Washington court has upheld the right of an employee to enforce the provisions of a collective bargaining agreement entered into between his employer and the labor union of which he is a member.  Huston v. Washington Wood & Coal Co., 4 Wn. (2d) 449, 103 P. (2d) 1095 (1940).  This decision was predicated upon the principle that the employee was a third party beneficiary under the contract.

            InMarble v. Clein, supra, which did not involve the performance of illegal conduct on Sundays, our court held that there can be no recovery for the performance of a contractual undertaking where said performance constitutes an illegal act.

            InKnight v. Press Company, Limited, 227 Pa. 185, 75 Atl. 1083 (1910), a case whichdid involve a Sunday closing statute (or day-of-rest statute) similar to RCW 9.76.010, supra, a plaintiff was denied the compensation promised to him for delivering newspapers on Sunday.  Similarly, inCarson v. Calhoun, 101 Me. 456, 64 Atl. 838 (1906), the Supreme Judicial Court of  [[Orig. Op. Page 5]] Maine denied recovery for the performance of certain plumbing work on a Sunday, stating that:

            ". . . Whatever remedies the plaintiff may have by other actions at law or in equity, the court can recognize no valid contract or implied promise based on the work done on the Lord's Day set forth in this declaration.  It is a well established principle that in cases of this kind the law leaves the parties where their illegal contract left them, and will render assistance to neither. . . ."

            See, also,Lippert v. Garrick Theater Co., 144 Wis. 413, 129 N.W. 409 (1911), andAlfree v. Gates, 82 Iowa 19, 47 N.W. 993 (1891), which are distinguishable from the instant situation in that in each of these cases the claim for compensation was for a period of several days which included a Sunday.  However, no labor was performed on the Sunday, and no compensation was claimed for that day.  Consequently, recovery of the promised consideration for the services rendered was allowed.

            None of this last group of cases from other jurisdictions, above‑cited, can be called recent decisions.  Every one of them is at least fifty years' old.  And, of course, none of them are decisions of the Washington court.

            On the other hand, none of these decisions, so far as we have been able to ascertain, have ever been overruled.  Further, the basis for each of these decisions was nothing more than the application of the same principle as was the basis for the most recent decision of the Washington court inMarble v. Clein, supra; namely, that there can be no recovery, under a contract, for the performance of a contractual undertaking which constitutes an illegal act.

            Therefore, we are compelled to conclude that, given the performance of work or labor on Sundayin violation of RCW 9.76.010, supra, (and not within one of the exceptions contained therein) existing case law would appear to preclude an employee's action for the recovery of any premium wages which may have been provided for by a collective bargaining agreement for such Sunday work.

            It should also be observed that the foregoing observation is not an opinion as to whether any particular type or class of work or labor, if performed on Sunday, would constitute a violation of the statute here under consideration.

             [[Orig. Op. Page 6]]

            We trust that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General