Gem Stores, Inc. v. O'Brien

• Decision Date: 09 December 1963
• Docket Number: No. 50355,50355
• Citation: 374 S.W.2d 109
• Parties: 48 Lab.Cas. P 50,970 GEM STORES, INC., a corporation, G. E. M. Southway, Inc., a corporation, and Chix Shop, Inc., a corporation, Appellants, v. Daniel V. O'BRIEN, Prosecuting Attorney of St. Louis County, Missouri, Respondent, and Thomas F. Eagleton, Attorney General of the State of Missouri, Intervenor-Respondent.
• Court: Missouri Supreme Court

Page 109

374 S.W.2d 109

48 Lab.Cas. P 50,970

GEM STORES, INC., a corporation, G. E. M. Southway, Inc., a corporation, and Chix Shop, Inc., a corporation, Appellants, v. Daniel V. O'BRIEN, Prosecuting Attorney of St. Louis County Missouri, Respondent and Thomas F. Eagleton, Attorney General of the State of Missouri, Intervenor-Respondent.

No. 50355.

Supreme Court of Missouri, En Banc.

Dec. 9, 1963.

Rehearing Denied Jan. 13, 1964.

Guilfoil, Caruthers, Symington & Montrey, St. Louis, for appellants.

Lewis, Rice, Tucker, Allen & Chubb, Arthur R. Tucker, Samuel H. Liberman, Charles L. Edson, St. Louis, special counsel for respondents Daniel V. O'Brien and Thomas F. Eagleton.

John H. Martin, St. Louis, for Missouri State Labor Council, AFL-CIO, amicus curiae.

Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, amicus curiae.

STORCKMAN, Judge.

This is an appeal from a declaratory judgment upholding the constitutionality of Sec. 563.721, RSMo Supp. 1963, V.A.M.S., Laws 1963, Senate Bill No. 49, which became effective on October 13, 1963. The statute prohibits the selling at retail of certain commodities on Sunday. The plaintiffs, GEM Stores, Inc., and G.E.M. Southway, Inc., are Missouri corporations conducting general retail department store businesses in St. Louis County. The plaintiff, Chix Shop, Inc., also a Missouri corporation, is a licensed concessionaire of the other plaintiffs and is engaged in the business of selling wearing apparel for children and infants at retail. The defendant Daniel V. O'Brien is the prosecuting attorney of St. Louis County. The attorney general of the State of Missouri, Thomas F. Eagleton, was served with a copy of plaintiffs' petition pursuant to Sec. 527.110, RSMo 1959, V.A.M.S., and was permitted to intervene as a party defendant. After the defendants filed their separate answers, the plaintiffs filed a joint motion for judgment on the pleadings. No evidence was offered and the cause was decided against the plaintiffs on the allegations of the pleadings. The plaintiffs appealed, but the parties will generally be referred to as they were designated in the trial court.

The complete text, including the title, of the legislative enactment, sometimes herein referred to as the Act, is as follows:

'An Act--To repeal sections 563.690, 563.700, 563.710, 563.720 and 563.730, RSMo 1959, relating to proscribed activities and conduct on Sunday and exceptions thereto, and to enact one new section in lieu thereof relating to the same subject.

'Be it enacted by the General Assembly of the State of Missouri, as follows:

'Section A. Sections 563.690, 563.700, 563.710, 563.720 and 563.730, RSMo 1959, are repealed and one new section enacted in lieu thereof, to read as follows:

'Section 1. 1. Whoever engages on Sunday in the business of selling or sells or offers for sale on such day at retail motor vehicles; clothing and wearing apparel; clothing accessories; furniture; housewares; home, business or office furnishings; household, business or office appliances; hardware; tools; paints; building and lumber supply materials; jewelry; silverware; watches; clocks; luggage; musical instruments and recordings or toys; excluding novelties and souvenirs, is guilty of a misdemeanor and shall upon conviction for the first offense be sentenced to pay a fine of not exceeding one hundred dollars, and for the second or any subsequent offense be sentenced to pay a fine of not exceeding two hundred dollars or undergo confinement, not exceeding thirty days, in the county jail in default thereof.

'2. Each separate sale or offer to sell shall constitute a separate offense.

'3. Information charging violations of this section shall be brought within five days after the commission of the alleged offense and not thereafter.

'4. The operation of any place of business where any goods, wares or merchandise are sold or exposed for sale in violation of this Act is hereby declared to be a public and common nuisance.

'5. If any provision of this Act is found to be unconstitutional, the remaining provisions are and shall remain in full force and effect.

'The Legislature hereby declares that, if the inclusion of any category of goods, wares and merchandise in Section 1 is invalid under the Constitution, it intends to and does hereby exclude such category of goods, wares and merchandise from the categories of goods, wares and merchandise prohibited from sale or exposure for sale by Section 1 of this Act.'

The petition alleges that the plaintiffs 'have been and are engaged on Sunday from 12:00 p. m. to 6:00 p. m. in the business of selling, and sell and offer for sale on Sunday at retail, practically all of the items the sale of which on Sunday is prohibited by The Act.' The grounds upon which the constitutionality of the Act is attacked are stated in paragraphs 7, 8, and 9 of the petition as follows:

'7. The entire Act is an unconstitutional, void, and unenforceable special law, in violation of Article III, Sec. 40 of the Missouri Constitution of 1945, in that it proscribes the sale on Sunday of only the articles enumerated therein, and excludes from its proscriptions every other gainful activity carried on by every other business in Missouri.

'8. The entire Act is unconstitutional, void and unenforceable because it creates unreasonable, arbitrary and discriminatory classifications of activities prohibited on Sunday, in violation of plaintiffs' right to equal rights and opportunity under the law, and to the equal protection of the law, under Article I, Sec. 2 of the Missouri Constitution of 1945 and the Fourteenth Amendment of the United States Constitution in the following respects:

'(a) The classifications in The Act are arbitrary and bear no reasonable relation to the public welfare, health and safety;

'(b) The Act arbitrarily discriminates against plaintiffs in that it arbitrarily prohibits the sale on Sunday of certain items sold by plaintiffs and allows every other gainful occupation to be carried on on Sunday so that any and all persons, firms and corporations may lawfully engage in, for example, (i) manufacturing, mining, agriculture, and foodstuff production, and the processing, distribution, transportation and sale of the product thereof, (ii) the business of selling and offering for sale improved real property, such as homes, and unimproved real property, of every description; and (iii) the performance of work, labor and services in connection with the activities described in subparagraphs (i) and (ii) above, and also in connection with every service occupation such as, for instance, laundries, cleaning establishments and repair facilities of every description.

'9. The Act, in its entirety, deprives plaintiffs of liberty and property without due process of law, in violation of plaintiffs' rights under Article I. Sec. 10 of the Missouri Constitution of 1945, and the Fourteenth Amendment of the United States Constitution, in that on its face, The Act evidences no purpose to promote the general public health, welfare, safety or recreation, but the purpose solely to restrict plaintiffs' type of business.'

The petition further states that the plaintiffs 'cannot comply with The Act except by ceasing to conduct business on Sundays which would inflict immediate, substantial and irreparable damage and injury upon their business and property.' The prayer of the petition is that the Act be held 'void and unconstitutional in its entirety', and that the defendants be permanently enjoined from enforcing it.

The answers of the defendants deny the allegations of unconstitutionality in paragraphs 7, 8, and 9 of the petition and each affirmatively 'avers that the Act on its face, conforms, in all respects, to the practice of the General Assembly, based on the recommendations of the Committee On Legislative Research, whereby specific expressions of a purpose to promote the general public health, welfare and safety are omitted as being unnecessary, in accordance with the presumption that laws have been passed with a view to the welfare of the community.'

The trial court decided all issues against the plaintiffs and entered its judgment holding the Act constitutionally valid from which judgment the plaintiffs have appealed.

This is a proper case for a declaratory judgment because the attack upon the validity of the state statute presents a justiciable controversy in which the plaintiffs have a legally protectible interest. Section 527.020, RSMo 1959, V.A.M.S.; Sta-Whip Sales Company v. City of St. Louis, Mo., 307 S.W.2d 495, 497; State ex rel. Chilcutt v. Thatch, 359 Mo. 122, 221 S.W.2d 172, 176. The supreme court has jurisdiction of the appeal because a construction of the constitution of this state and of the United States is involved and the attorney general of the State of Missouri in his capacity as a state officer is a party. Art. 5, Sec. 3, Constitution of Missouri 1945, V.A.M.S.

On appeal the plaintiffs make two principal contentions as to the constitutional invalidity of the Missouri Sunday Sales Act. One is that it violates the Fourteenth Amendment to the Constitution of the United States and Secs. 2 and 10 of Art. 1 of the Constitution of Missouri 1945 in that: 'The act denies to appellants due process of law and equal rights and opportunity under the law because it bears no valid relationship to the only constitutional basis for the exercise of the police power to regulate the Sunday activity of a lawful and harmless business, that is, the state's objective to achieve a day of rest and tranquility for the general good of mankind.' The other contention is that the Act is a special law in violation of Art. 3, Sec. 40, subparagraph (30), of the Missouri Constitution 1945.

The Missouri Sunday Sales Act is practically identical with a Pennsylvania statute enacted in 1959. The plaintiffs concede that except for the inclusion of motor vehicles and minor changes in the penalty sections, the...