Gramex Corp. v. Von Romer

• Citation: 603 S.W.2d 521
• Decision Date: 09 September 1980
• Docket Number: No. 61720.,61720.
• Parties: GRAMEX CORPORATION et al., Appellants, v. Harry E. VON ROMER et al., Respondents.
• Court: United States State Supreme Court of Missouri

603 S.W.2d 521

GRAMEX CORPORATION et al., Appellants, v. Harry E. VON ROMER et al., Respondents.

No. 61720.

Supreme Court of Missouri, En Banc.

July 15, 1980.

Rehearing Denied September 9, 1980.

Stephen C. Murphy, Clayton, for appellants.

John Ashcroft, Atty. Gen., Joel S. Wilson, Asst. Atty. Gen., Jefferson City, for intervenor-defendant-respondent.

Allen S. Boston, Andrew Rothschild, Richard Ahrens, St. Louis, for intervenors-defendants-respondents.

DONNELLY, Judge.

This appeal challenges the validity of § 578.110, RSMo Supp.1979, and involves the construction and application of art. VI, § 8, of the Missouri Constitution.

Section 578.100, RSMo 1978, commonly referred to as Missouri's "Sunday Sales" or "Blue Law," provides, in part:

"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 * * *."

In 1977, this section was amended, and in 1978, § 578.105 was enacted, to provide certain Missouri counties an opportunity to exempt themselves from the application of § 578.100. In 1977, the people of the counties of Jackson, Clay, and Platte availed themselves of § 578.100.5 to exempt themselves from the provisions of the law. Revisor's Note, § 578.100, RSMo 1978. And, in 1978, the people of the counties of Buchanan and Cass voted to exempt themselves through the procedure outlined in § 578.105. Revisor's Note, § 578.105, RSMo Supp.1979.

In 1979, the General Assembly passed, and the Governor approved, House Bill No. 56 (now codified as § 578.110, RSMo Supp. 1979), the subject of this litigation. This section provides in part:

"1. As used in this section, the term `area' includes all cities not within a county, all first class counties having a charter form of government and adjoining such cities not within a county and all first class counties which adjoin such first class counties having a charter form of government and adjoining cities not within a county; and the term `county' means any county of this state not within an area.

"2. In addition to the counties which may exempt themselves from the application of section 578.100, under the provisions of section 578.100, or section 578.105, any other county or area may also exempt itself from the application of section 578.100 by a vote of the qualified voters of the county or area; provided that, before any area may so exempt itself from the provisions of section 578.100, the qualified voters of each city not within a county and each county within such area shall vote on the proposal for exemption from the provisions of section 578.100, RSMo, at the same election and a majority of the total votes cast in such area shall be in favor of the proposal before either such city or any of such counties may be exempted from the provisions of section 578.100."

Appellant Gramex Corporation is engaged in the business of retail sales in St. Louis County and the City of St. Louis. Gramex operates four "Grandpa Pigeon's" stores, a sporting goods store, and a computer store in the St. Louis area.

On August 9, 1979, Gramex and its president, J. W. Holley, filed a petition in the Circuit Court of St. Louis County seeking a declaratory judgment that § 578.110 is unconstitutional and asking for injunctive relief. Named as defendants were members of the St. Louis County Council and the St. Louis County Board of Election Commissioners, the Secretary of State of Missouri, and the Revisor of Statutes for the State of Missouri.

Thereafter, the Attorney General of Missouri, pursuant to § 527.110, RSMo 1978, moved to intervene as defendant, as well as six corporations making up the "Committee for Blue Law Repeal," which sponsored a petition drive to place on the November 6, 1979, ballot the proposition to exempt, per § 578.110.1, the "area" of the City of St. Louis, St. Louis County, Jefferson County, and St. Charles County, from the provisions of § 578.100. The members of the Board of Election Commissioners, the Secretary of State, and the Revisor of Statutes moved to be dismissed. The motions to intervene were sustained by the circuit court. The motions to dismiss were taken with the case.

On October 11, 1979, on the basis of a written stipulation of facts and the testimony heard in an evidentiary hearing, the trial court denied the declaratory and injunctive relief, finding § 578.110 "not unconstitutional in any respect."

On October 15, 1979, appellants requested this Court to expedite the appeal. This request was denied.

On November 6, 1979, the election proceeded. The proposition failed to carry a majority of the votes in the "area." On the same day, however, electors in Boone, Lafayette, Marion, Ralls, and Saline counties voted to exempt themselves from § 578.100 by use of the provisions of § 578.110. Revisor's Note, § 578.110, RSMo Supp.1979.

Although the election has already been held, and no part of the St. Louis area has been exempted from § 578.100, as appellants feared, the case is not moot as it involves questions "capable of repetition, yet evading review." Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911).

Appellants argue that § 578.110 violates art. VI, § 8, of the Missouri Constitution which provides:

"Section 8. Classification of counties— uniform laws.—Provision shall be made by general laws for the organization and classification of counties except as provided in this constitution. The number of classes shall not exceed four, and the organization and powers of each class shall be defined by general laws so that all counties within the same class shall possess the same powers and be subject to the same restrictions. A law applicable to any county shall apply to all counties in the class to which such county belongs."

This provision is violated, appellants contend, because § 578.110.1, although written in general terms, does not apply uniformly to all counties of the same class as required by the last sentence of art. VI, § 8. The statute does not apply uniformly, appellants argue, because the City of St. Louis, St. Louis County and Jefferson and St. Charles counties, as an "area," are required to vote as a block, i. e., a majority of the total votes cast in the "area" is necessary to exempt the "area" from § 578.100, a requirement not imposed on other first class counties, e. g., Greene County. In addition, the statute only provides one method for submitting the exemption question to the voters in the "area"—by petition—whereas other counties, including other first class counties, may submit the issue either by petition or upon a majority vote of the governing body of the county. On its face, then, § 578.110 seems clearly to violate the constitutional proscription of art. VI, § 8, which states: "A law applicable to any county shall apply to all counties in the class to which such county belongs."

When art. VI, § 8, is read in its entirety, however, a question is raised as to whether the only laws which the last sentence of the section requires to be applicable to all counties within a class are laws dealing with the classification and organization of counties.

The case of Chaffin v. County of Christian, 359 S.W.2d 730 (Mo. banc 1962), is cited by intervenors as support for this interpretation. Chaffin, at 734, states:

"Prior to the adoption of the 1945 Constitution, there was no constitutional provision with respect to classification of counties or limitation upon the number of classes which the legislature might create. As a result, numerous classifications were made for different purposes. The purpose of the constitutional provision was to simplify and make more effective the organization and operation of the counties. It provides that the provisions for the organization and classification of counties shall be by general laws and that the organization and powers of each class shall be defined by general laws."

The Chaffin opinion, in ascertaining the purpose of § 8, relied on the report of the Committee on Local Government and remarks made by that Committee's chairman, Dr. William L. Bradshaw, in presenting the section to the Constitutional Convention for perfection. The Committee's report stated:

"Section 8 is a new one on the organization and classification of counties. It is similar to Section 7 now art. VI, § 15 which provides for the organization and classification of cities. The provision is designed to permit a more flexible system of county government rather than one uniform system as now required. It will permit the Legislature to formulate a more simple set-up of government for counties of relatively low valuation. It is also consistent with a home rule provision for a few larger counties whose problems are essentially different from the other counties. Such a home rule provision has been tentatively approved by Committee No. 8."

Report of the Committee on Local Government—No. 9, File No. 11, p. 6.

Dr. Bradshaw's remarks to the Convention concerning this section included this statement:

"The Committee considers that the provisions for classification of counties are very important because under the interpretation the present version of uniformity idea in our government that we have basically the same fundamental framework of government in the smallest rural county and in the largest urban one. It remains, and in some cases you have too much governmental machinery, and in other cases you have to build a huge superstructure on a very small foundation. We thought a

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