ABC Liquidators, Inc. v. Kansas City

• Court: Missouri Supreme Court
• Writing for the Court: DALTON
• Citation: ABC Liquidators, Inc. v. Kansas City, 322 S.W.2d 876 (Mo. 1959)
• Decision Date: 13 April 1959
• Docket Number: No. 46954,No. 1,46954,1
• Parties: ABC LIQUIDATORS, INC. and Wilbur Swearingen and George Jacobs, d/b/a Reliable Auction, Plaintiffs-Respondents, v. KANSAS CITY, Missouri, a Municipal Corporation, and H. Roe Bartle, Mayor of Kansas City, Missouri, et al., Defendants-Appellants

Page 876

322 S.W.2d 876

ABC LIQUIDATORS, INC. and Wilbur Swearingen and George Jacobs, d/b/a Reliable Auction, Plaintiffs-Respondents, v. KANSAS CITY, Missouri, a Municipal Corporation, and H. Roe Bartle, Mayor of Kansas City, Missouri, et al Defendants-Appellants.

No. 46954.

Supreme Court of Missouri, Division No. 1.

April 13, 1959.

Benj. M. Powers, City Counselor, John J. Cosgrove, Associate City Counselor, Timothy D. O'Leary, Kansas City, for appellants.

Jack B. Robertson, Kansas City, for respondent ABC Liquidators, Inc.

DALTON, Judge.

This is an appeal from a judgment entered against the City of Kansas City Missouri, and certain named administrative officials of said municipality, permanently restraining them from enforcing the city's ordinance prohibiting the holding of public auctions on Sunday. Plaintiffs' petition set out the questioned ordinance and challenged its constitutionality and validity, as hereinafter stated. Defendants moved to dismiss on the ground that the petition failed to state facts upon which relief could be granted. The motion was overruled on February 25, 1958. Thereafter, on April 23, 1958, the defendants declined to plead further and the court entered judgment for the plaintiffs and enjoined the defendants from enforcing the ordinance, hence this appeal.

In view of the issues presented we must look to the allegations of the petition. The petition alleged that ABC Liquidators, Inc., is a corporation organized according to law; that Wilbur Swearingen and George Jacobs are doing business as Reliable Auction; that they are engaged in the business, trade and profession of operating a place of business for the purpose of selling personalty at auction under licenses duly issued by the Clerk of the County Court of Jackson County, Missouri, and the defendant, City of Kansas City, Missouri; that Ordinance No. 19978, adopted by defendant city on May 23, 1956, provides as follows:

'Section A. That the Revised Ordinances of Kansas City, 1946, are hereby amended by enacting a new section to be added thereto to be known as Section 5-8.1, prohibiting auctions on Sunday, said section to read as follows:

'Section 5-8.1. No person shall hold a conduct a public auction on Sunday.

'Section B. That the Revised Ordinances of Kansas City 1946, be and they are hereby amended by repealing Section 5-10 thereof relating to exceptions, and enacting in lieu thereof a new section of like number relating to the same subject, which said section shall read as follows:

'Section 5-10. Excepted Sales. The provisions of this chapter shall not extent to any public sale held under legal process.'

Penalties for violation of the mentioned ordinance were provided by another ordinance not in question here.

The petition further alleged that,

'Ordinance No. 19978, Sections A and 5-8.1 are void and invalid in the following respects:

'(a) It denies these plaintiffs and each of them the equal protection of the law as guaranteed to them by the 14th Amendment to the Constitution of the United States and Section 1 thereof.

'(b) It is in violation of Section 2 of Article 1 of the Constitution of Missouri in that it denies these plaintiffs equal rights and opportunity under the law and the enjoyment of the gains of their own industry as guaranteed to them by said section.

'(c) It is unreasonable, arbitrary, discriminatory, oppressive, and unequal in its application, all in violation both of Section 1 of the 14th Amendment to the Constitution of the United States and of Section 2 of Article I of the Constitution of Missouri.

'(d) It unreasonably and arbitrarily and without any fair and substantial reason relating to the general object and legislative purpose to be accomplished, wrongfully, arbitrarily and unreasonably places the business of these plaintiffs into an arbitrary and unreasonable class, and arbitrarily attempts to distinguish between the business of selling goods at auction and the business of all other forms of selling personalty.

'(e) There is no peculiarity in the condition of those engaged in the business of selling at public auction which justifies their segregation for the purpose of prohibiting them from conducting such business upon the day specified in said ordinance, and such business is not calculated to be accompanied by noise, confusion, and excitement, and if held on Sunday will not result in special desecration of the Sabbath, and disturbance of the day of rest.

'(f) Said ordinances constitute a local or special law and are contrary to the provisions of Section 40 of Article III of the Constitution of Missouri which prohibits the enactment of a local or special law where a general law can be made applicable.'

The trial court did not indicate the theory of law upon which it acted in overruling the motion to dismiss and the respondents have not favored us with a brief. The cause was submitted here on the record and appellants' brief.

Appellants contend that the court erred in refusing to dismiss plaintiffs' petition and in restraining defendants from enforcing the ordinance for the reason that a legislative body has a wide discretion under its police powers to separate people into classes; and because auctioneers and auctions may be legally regulated as a distinct class of business.

It should first be noted that the state law, to wit, Section 563.720 RSMo 1949, V.A.M.S., provides: 'Every person who shall expose to sale any goods, wares or merchandise * * * on the first day of the week, commonly called Sunday, shall, on conviction, be adjudged guilty of a misdemeanor * * *.' Section 563.730 RSMo 1949, V.A.M.S., provides that 'Section 563.720 shall not be construed to prevent the sale of any drugs or medicines, provisions or other articles of immediate necessity.'

Section 563.720, evidencing the police power of the state to provide for the general welfare has repeatedly been held valid when attacked on the ground that it violated certain provisions of the Constitution of the United States and of the State of Missouri. State v. Ambs, 20 Mo. 214; City of St. Louis v. DeLassus, 205 Mo. 578, 104 S.W. 12; State v. Campbell, 206 Mo. 579, 585, 105 S.W. 637. And see McKaig v. Kansas City, 363 Mo. 1033, 256 S.W.2d 815, 818; Komen v. City of St. Louis, 316 Mo. 9, 289 S.W. 838, 841; City of Springfield v. Smith, 322 Mo. 1129, 19 S.W.2d 1; State v. Hogan, 212 Mo.App. 473, 252 S.W. 90; State v. Ohmer, 34 Mo.App. 115, 123; State v. Malone, 238 Mo.App. 939, 192 S.W.2d 68; State v. Haliburton, Mo.App., 194 S.W.2d 206; State v. Halliburton, Mo.App., 276 S.W.2d 229.

In State v. Chicago, B. & Q. R. Co., 239 Mo. 196, 209, 143 S.W. 785, 786, this court said: 'Sunday is a day of dual character. It is the Christian's day of worship; it is also the day of rest of men everywhere, irrespective of whether they have or have not a creed or a religious belief. The law does not deal with Sunday as a day of worship, but with it only as a day of rest. The confusion of the two characteristics of the day has doubtless contributed to the large number of conflicting decisions by the courts. The Missouri Sunday laws have regard to that day as a day of rest, and not to the religious character of the day. They are civil, not religious regulations, and are based upon a sound public policy which recognizes that rest one day in seven is for the general good of mankind. Hennington v. State of Georgia, 163 U.S. 299-304, 16 S.Ct. 1086, 41 L.Ed. 166. Those laws are sustained as civil, municipal or police regulations, without reference to the fact that the day of rest is also the Christian's day of rest and worship.' And see Nichols v. North Kansas City, 358 Mo. 402, 214 S.W.2d 710, 712.

Sections 563.720 and 563.730 have been held not in conflict with an ordinance of the city of St. Louis prohibiting the keeping open of grocery stores and the selling of goods therein on Sunday. City of St. Louis v. Bernard, 249 Mo. 51, 155 S.W. 394, 396. And see City of St. Louis v. DeLassus, supra; Komen v. City of St. Louis, supra, 289 S.W. 838, 841.

Respondents' petition does not expressly allege any conflict between the city ordinance in question and the statute in question, or that respondents are engaged in the sale of 'any drugs or medicines, provisions or other articles of immediate necessity' at public auction or that they seek an injunction against appellants on such ground. They do say that 'there is no peculiarity in the condition of those engaged in the business of selling at public auction which justified their segregation for the purpose of prohibiting them from conducting such business upon the day specified in the said ordinance.' While we find that ordinances of cities in other states prohibiting the sale of merchandise at public auction on Sunday have been held valid, these ordinances were attacked on other grounds, such as a provision prohibiting auction sales after 6 P. M. or on other provisions of the ordinances. See State v. Gordon, 143 Conn. 698, 125 A.2d 477, 479; Levy v. Stone, 97 Fla. 458, 121 So. 565. In so far as the Sunday feature of the ordinance in question is concerned it is consistent with the state statute referred to. Further, Section 19, Article VI of the Constitution of Missouri 1945, V.A.M.S., provides that 'any city having more than 10,000 inhabitants may frame and adopt a charter for its own government, consistent with and subject to the constitution and laws of the state * * *.' (Italics ours.) Kansas City has adopted a special charter and the ordinance here was adopted thereunder. As stated, we find no conflict between the ordinance and the state law or state constitution on the Sunday feature of the ordinance. The ordinance supplements the state law and is not in conflict with it. City of St. Louis v. Bernard, supra; City of St. Louis v. Ameln, 235 Mo. 669, 686, 139 S.W. 429. The matter will be mentioned further in discussing the exercise of the police power by the city.

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