City of Flat River v. Mackley

• Court: Missouri Court of Appeals
• Writing for the Court: McCULLEN
• Citation: City of Flat River v. Mackley, 212 S.W.2d 462 (Mo. App. 1948)
• Decision Date: 15 June 1948
• Docket Number: 27478
• Parties: CITY OF FLAT RIVER v. MACKLEY et al

212 S.W.2d 462

CITY OF FLAT RIVER v. MACKLEY et al

No. 27478

Court of Appeals of Missouri, St. Louis

June 15, 1948

'Not to be reported in State Reports.'

Raymond S. Roberts, of Farmington, for appellant.

E. L McClintock, Jr., of Flat River, and Smith & Smith, of Farmington, for respondent.

OPINION

McCULLEN

Appellants M. F. Mackley and Olin A. Raby (the last named also referred to as Olin F. Raby) were convicted in the Police Court of respondent, City of Flat River, on a charge of selling beer referred to as 3.2% beer, on a Sunday, in violation of an ordinance of said City. They duly appealed to the Circuit Court of St. Francois County. The cause was tried in said Circuit Court upon a stipulation by the parties, through their respective counsel, wherein it was agreed that the City of Flat River on the 7th day of July, 1947, duly passed and approved Bill No. 106, Ordinance No. 103, which provided as follows:

'Section 1. No person, firm, partnership, association of persons or corporation shall sell any fermented liquor in any quantity on the first day of the week, commonly called Sunday.

'Section 2. Beer having an alcoholic content of not less than one-half of one per cent (1/2 of 1%) by volume nor exceeding 3.2% by weight is hereby declared to be fermented liquor.

'Section 3. Any person, firm, partnership, association of persons or corporation who shall violate this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than $ 25.00 or more than $ 100.00.

'Section 4. All ordinances or parts of ordinances in conflict with this ordinance are hereby repealed.

'Section 5. This ordinance shall take effect and be in force from and after its passage and approval.

'Read three times and passed this 7th day of July, 1947.'

It was further stipulated and agreed that on Sunday, the 27th day of July, 1947, the defendants, M. F. Mackley and Olin A. Raby, within the corporate limits of the City of Flat River, sold beer, commonly referred to as 3.2% beer; that on that date the defendants were arrested for violating Ordinance No. 103, and on the 28th day of July, 1947, a trial was held before the Police Judge of the City of Flat River; that the defendants, although admitting that they had sold 3.2% beer on a Sunday, as charged, entered a plea of 'not guilty,' stating as their reason therefor that said Ordinance No. 103 was invalid.

According to the stipulation, the Police Judge of the Police Court of the City of Flat River found the defendants guilty and assessed their fine at twenty-five dollars ($ 25.00) each, and costs.

It was further stipulated that the appeal to the Circuit Court of St. Francois County was for the sole purpose of testing the validity of Ordinance No. 103.

After the submission of the cause in the Circuit Court on October 8, 1947, said court entered its judgment that respondent, City of Flat River, recover of each defendant the said fine of $ 25, together with costs. Defendants then duly appealed to this court.

Appellants contend that the ordinance in question is void because it attempts to prohibit Sunday sales of 3.2% beer and is, therefore, in conflict with the State law; that the Legislative intention to permit 3.2% beer to be sold on Sunday except between the hours of 1:30 A. M. and 6:00 A. M. is clear, as shown by the statutes relating to both 'intoxicating liquor' and 'non-intoxicating beer.' In support of this contention appellants cite, among other authorities, Sections 7442, 4891, and 4995, R.S.Mo.1939, Mo.R.S.A. §§ 7442, 4891 and 4995.

It is pointed out by appellants that Section 7442, supra, provides that any municipal corporation in this state, whether under general or special charter, and having authority to pass ordinances regulating subjects, matters and things upon which there is a general law of the state, unless otherwise prescribed or authorized by some special provision of its charter, 'shall confine and restrict its jurisdiction and the passage of its ordinances to and in conformity with the state law upon the same subject.'

The proper determination of the questions involved herein requires, among other things, a consideration of our state laws relating to the sale of intoxicating and non-intoxicating liquors, as well as the respondent City's ordinance.

Section 4742, R.S.Mo.1939, Mo.R.S.A. § 4742, relating to the subject of 'Selling goods on Sunday,' provides as follows:

'Every person who shall expose to sale any goods, wares or merchandise, or shall keep open any ale or porter house, grocery or tippling shop, or shall sell or retail any fermented or distilled liquor on the first day of the week, commonly called Sunday, shall, on conviction, be adjudged guilty of a misdemeanor and fined not exceeding fifty dollars.' (Emphasis ours.)

Said Section 4742 has been a law of this state since 1825 in practically the same form in which it now appears in said section in Article 8 of Chapter 31, R.S.Mo.1939, Mo.R.S.A. Article 8, Chapter 31, which is entitled 'Miscellaneous Offenses.' It has been held that said 'Sunday' law has regard to Sunday as a day of rest and not as to its religious character. State v. Chicago, B. & Q. R. Co., 239 Mo. 196, 143 S.W. 785.

Section 4891, R.S.Mo.1939, as amended by Laws Missouri 1941, pp. 412, 413, Mo.R.S.A. § 4891, provides:

'No person having a license under the provisions of this Act shall sell, give away or otherwise dispose of or suffer the same to be done upon or about his premises, any intoxicating liquor in any quantity between the hours of 1:30 o'clock A. M. and 6:00 o'clock A. M. on week days and between the hours of 12:00 o'clock midnight Saturday and 12:00 o'clock midnight Sunday, * * *. Any person violating any provision of this section shall be deemed guilty of a misdemeanor.' (Emphasis ours.)

Section 4894, R.S.Mo.1939, Mo.R.S.A. § 4894, provides:

'The term 'intoxicating liquor' as used in this act, shall mean and include alcohol for beverage purposes, alcoholic, spirituous, vinous, fermented, malt, or other liquors, or combination of liquors, a part of which is spirituous, vinous, or fermented, and all preparations or mixtures for beverage purposes, containing in excess of three and two-tenths (3.2%) per cent of alcohol by weight.'

The above mentioned sections 4891 and 4894, relating to 'Intoxicating Liquor,' are contained in Article 1, Chapter 32, R.S.Mo.1939, Mo.R.S.A. Article 1, Chapter 32, entitled 'Liquor Control Act.'

Section 4950, R.S.Mo.1939, Mo.R.S.A. § 4950, provides, in part, as follows:

'Beer having an alcoholic content of not less than one-half of one per cent by volume nor exceeding 3.2 per cent by weight, is hereby declared to be nonintoxicating beer, and may be lawfully manufactured and sold, or sold, in this state by any holder of a permit issued by the supervisor of liquor control of this state * * *.' (Emphasis ours.)

We shall later refer specifically to the latter part of the above section 4950.

Section 4954, R.S.Mo.1939, Mo.R.S.A. § 4954, provides, among other things, that the proper authorities of cities, towns and villages may 'make and enforce ordinances for the regulation and control of the sale of nonintoxicating beer within their limits, not inconsistent with the provisions of this article, and provide penalties for the violation thereof.' (Emphasis ours.)

Section 4995, R.S.Mo.1939, Mo.R.S.A. § 4995, provides as follows:

'No person having a license under the provisions of this article, shall sell, give away or otherwise dispose of, or suffer the same to be done, upon or about his premises, any nonintoxicating beer in any quantity between the hours of one-thirty o'clock a. m., and six o'clock a. m., and any person violating any provision of this section shall be deemed guilty of a misdemeanor and shall be punished by imprisonment in the county jail for a term of not more than one year, or by a fine of not less than fifty dollars ($ 50.00) nor more than one thousand dollars ($ 1,000.00) or by both such fine and jail sentence.' (Emphasis ours.)

The above mentioned sections 4950, 4954, and 4995, supra, are contained in Article 2 of Chapter 32, R.S.M.o.1939, Mo.R.S.A. Article 2, Chapter 32, entitled 'Nonintoxicating Beer.'

Appellants argue that the ordinance in question is void because it prohibits the sale of 3.2% beer at any time on Sunday, whereas the State law prohibits such sales only between the hours of 1:30 o'clock A. M. and 6:00 o'clock A. M.

It is to be noted that Chapter 32, supra, is a general and comprehensive State law which regulates both intoxicating and non-intoxicating liquors. Said Chapter is dividend into two Articles -- Article 1 thereof relates to intoxicating liquors and is entitled 'Liquor Control Act.' Article 2 is entitled and relates to 'Nonintoxicating Beer.'

Although Section 4891, supra, dealing with intoxicating liquor, prohibits the sale thereof between the hours of 1:30 o'clock A. M. and 6:00 o'clock A. M. on week days, and between the hours of 12:00 o'clock midnight Saturday and 12:00 o'clock midnight Sunday, the Legislature did not go that far in Section 4995, supra, relating to nonintoxicating beer. In the last named section the sale of nonintoxicating beer is prohibited only 'between the hours of one-thirty o'clock a. m. and six o'clock a. m.,' without any mention of Sunday. From this comparison of the above sections dealing with intoxicating liquor on the one hand and nonintoxicating beer on the other, it appears that the Legislature intended to provide for every phase of the liquor problem, including Sunday sales of intoxicating liquor as well as sales of nonintoxicating beer.

Respondent City contends, however, that Section 4742, supra, the general 'Sunday' law, was not impliedly...