Harvey v. Priest, 49576
| Decision Date | 11 March 1963 |
| Docket Number | No. 49576,49576 |
| Citation | 366 S.W.2d 324 |
| Parties | Fred HARVEY, a corporation, Respondent, v. H. Sam PRIEST, Russell L. Dearmont, Alphonse G. Eberle, Kenneth Teasdale and Raymond R. Tucker, as Members of the Board of Police Commissioners for the City of St. Louis, Missouri, and Curtis Brostron, Chief of Police, City of St. Louis, Missouri, Appellants, and Thomas F. Eagleton, Attorney General of the State of Missouri, Intervenor-Appellant. |
| Court | Missouri Supreme Court |
Gerald K. Presberg, St. Louis, for defendants-appellants.
Arthur R. Tucker, Henry F. Luepke, Jr., St. Louis, Carter, Bull & Baer, St. Louis, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, special counsel to intervenor-appellant.
Coburn, Croft & Cook, Thomas L. Croft, Gerald M. Smith, Ben Ely, Jr., St. Louis, for plaintiff-respondent.
Fred Harvey, corporate concessionaire at Union Station, St. Louis, obtained declaratory relief by the judgment in this case, and from that judgment the members of the Board of Police Commissioners of the City of St. Louis, the Chief of Police of that city (defendants) and the Attorney General of Missouri (intervenor) have appealed.
The case is another of those following in the wake of, and which were given impetus by, this court's en banc decision of December 11, 1961, in State v. Katz Drug Company (Mo.) 352 S.W.2d 678, upholding the constitutionality of the exposure-to-sale and Sunday closing sections of our so-called 'blue laws,' Secs. 563.720, 563.730 (). These sections read as follows:
The Katz case held these sections were not rendered unconstitutional or void for vagueness and uncertainty by reason of excepting sales of 'drugs, medicines, provisions or other articles of immediate necessity,' nor as being violative of constitutional provisions respectively calling for separation of legislative and judicial powers, and giving an accused the right to demand the nature and cause of accusation. That case did not involve (nor does the one at bar) any challenge of these sections on the ground that they conflict with constitutional provisions for religious liberty. In sustaining the validity of these sections, the Katz case ruled that the standard 'other articles of immediate necessity' within the exception above mentioned must be of necessity to people generally rather than to the individual making the purchase on a particular occasion. And in that connection it was further said: '* * * [S]ince travel on Sunday has never been prohibited (see exemption of ferrymen in Sec. 563.700), supplies immediately needed to keep modern traffic moving in motor vehicles or planes surely would now be 'articles of immediate necessity,' as would supplies immediately needed to carry on any 'works of necessity."
In an obvious effort to conform the instant judgment to the foregoing view of the law by an adaptation of the language with respect to keeping 'modern traffic moving in motor vehicles or planes,' said judgment, in paragraph '1', adjudges, declares and decrees:
(Italics ours.)
'EXHIBIT A
'LIST OF ITEMS WHICH ARE HEREBY DECLARED TO BE DRUGS, MEDICINES, PROVISIONS AND ARTICLES OF IMMEDIATE NECESSITY AND MAY BE SOLD AND EXPOSED FOR SALE TO THE TRAVELING PUBLIC AND RAILROAD EMPLOYEES USING THE UNION STATION IN ST. LOUIS, MISSOURI ON SUNDAYS AND THE SALE OF WHICH IS HEREBY DECLARED NOT TO BE VIOLATIVE OF SECTION 563.720, REVISED STATUTES OF MISSOURI, 1959
Toothbrushes
Razor Blades
Shaving Lotion
Cosmetics and items incidental thereto
Drugs
Film, flashbulbs
Shoe Laces
Combs
Sanitary Napkins
Deodorant
Fountain Pens
Stationery
Shirts
Ties
Socks
Underwear
Belts
Cuff Links
Tie Pins
Wallets
Diapers
Baby Bottles
Baby Drugs and Supplies
Magazines
Travel Mementos, Souvenirs Novelties including but not limited to decorative pottery and glassware
Children's Toys
Sun Glasses
Glasses Cases
Rosaries
St. Christopher Medals
Crosses
Key Cases
Travel Bags
Alarm and Travel Clocks
Watches
Slippers, Travelers
Women's earrings, bracelets, necklaces, pins
Purses
Stockings
Gloves and scarfs
Tobacco products and items necessarily incidental thereto
Chewing Gum
Candy
Pocket Knives
Shoehorns
Nail clippers
Handkerchiefs
Rain Apparel
Luggage Tags
City Directional Maps
Towels and washcloths
Razors
Flashlight and radio batteries' The judgment also requires that plaintiff post appropriate signs in and about its establishment in Union Station 'setting forth and indicating that the sale of merchandise set forth in Exhibit A on Sunday is limited to the traveling public and railroad personnel utilizing the facilities of said Union Station.' It is further required that plaintiff 'use and exercise reasonable care in the sale or exposure for sale of the items set forth in Exhibit A on Sunday insofar as practicable to the traveling public and railroad employees utilizing the facilities of the Union Station * * *.'
The judgment contains other declarations and provisions, but for our purposes, in the view we take of the case, they need not be noticed.
Appellant's first contention is that the articles enumerated in Exhibit A 'and items of similar nature' are not exempt from the proscription of Sec. 563.720 as articles of immediate necessity to the traveling public and railroad employees, and are not supplies necessary to keep modern traffic in trains moving; respondent contends to the contrary. It may be said that, in general, both sides cite and rely on the same cases to support their respective, albeit diametrically opposed, positions. This is but typical of the vexing state of uncertainty and widespread confusion which for many years attended (and since Katz has aggravated) operations under, and enforcement of, these sections--a situation so notorious as to be the subject of judicial notice.
In this state of affairs we shall examine sua sponte so much of the question presented in Katz as relates to the claim of invalidity of these sections (both under common law rules and under constitutional provisions there invoked) because of vagueness and indefiniteness, in that they fix no ascertainable standard by which guilt may be determined, and furnish no adequate guide to future conduct or the adjudication of past action, or whether or not an article falls within the classification of 'provisions or other articles of immediate necessity.'
Some of the provisions of Sec. 563.720 are couched in the language of the pioneer, backwoods era during which the section was originally enacted (See R.S.1825, p. 311, Sec. 92, and R.S.1835, p. 209), notably the clause inhibiting the keeping open on Sunday of 'any ale or porter house, grocery or tippling shop.' As to the word 'grocery,' what modern child or other person would understand that term to mean anything other than a retail store or establishment at which foodstuffs, general supplies for the table, and household commodities are sold? But obviously the word was not so used in the statute, but rather in its meaning (now archaic) as a barroom or drinking shop. Webster's 2nd International Dictionary gives as one of the definitions of grocery: And in 4 Century Dictionary and Cyclopedia 2631: And, by way of...
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...bottles". The ordinance now under review is distinguishable from those struck down in the cases cited by the appellants. In Harvey v. Priest, 366 S.W.2d 324 (Mo.banc 1963), a general prohibition against Sunday sales yet allowed the sale of "drugs or medicines, provisions or other articles o......
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State ex rel. Eagleton v. McQueen
...term was 'or other articles of immediate necessity.' State v. Katz Drug Company, Mo., 352 S.W.2d 678, 680-681, and Harvey v. Priest, Mo., 366 S.W.2d 324, 328. Such also was the case in State v. Hill, 189 Kan. 403, 369 P.2d 365, 372, 91 A.L.R.2d 750. The use of generic terms in legislation i......
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Gem Stores, Inc. v. O'Brien
...decided January 11, 1963, appeal dismissed as moot, 374 U.S. 857, 83 S.Ct. 1866, 10 L.Ed.2d 1043. In the wake of Katz came Harvey v. Priest, Mo., 366 S.W.2d 324, decided March 11, 1963. The plaintiff Fred Harvey, a corporate concessionaire at Union Station in St. Louis, obtained a declarato......
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State v. Target Stores, Inc.
...State v. Hill, 189 Kan. 403, 369 P.2d 365, 91 A.L.R.2d 750; G I Surplus Store, Inc. v. Hunter, 257 N.C. 206, 125 S.E.2d 764; Harvey v. Priest (Mo.) 366 S.W.2d 324. We cite these cases as illustrative of a principle, rather than as decisively in point, for we recognize that general words, su......