Playboy Club, Inc. v. Myers, 53214

• Decision Date: 09 September 1968
• Docket Number: No. 2,No. 53214,53214,2
• Citation: 431 S.W.2d 228
• Parties: PLAYBOY CLUB, INC., et al., Appellants, v. Orson F. MYERS et al., Respondents
• Court: Missouri Supreme Court

Page 228

431 S.W.2d 228

PLAYBOY CLUB, INC., et al., Appellants, v. Orson F. MYERS et al., Respondents

No. 53214.

Supreme Court of Missouri, Division No. 2.

Sept. 9, 1968.

Morris Dubiner, Donald E. Raymond, Kansas City, for appellants.

Herbert C. Hoffman, City Counselor, Rex G. Bostwick, Asst. City Counselor Kansas City, for respondent, Orson F. Myers.

Manfred Maier, Kansas City, for respondent, Clarence M. Kelley.

Norman H. Anderson, Atty. Gen., Walter W. Nowotny, Jr., Gerald L. Birnbaum, Asst. Attys. Gen., Jefferson City, for respondent, John Harry Wiggins.

EAGER, Judge.

Plaintiffs, including an intervenor allied with them in interest, filed suit in two counts for a permanent injunction and for a declaratory judgment against the Director of Liquor Control of the City of Kansas City, the acting Supervisor of Liquor Control of Missouri, the Chief of Police and the Police Commissioners of Kansas City. We shall generally refer to all those seeking the relief as plaintiffs. There was an amended petition and sundry answers. We shall not consume space by reciting the allegations of the rather lengthy pleadings. The sole issue is whether plaintiffs must close their retail liquor businesses at 1:30 A.M. Central Standard Time or at 1:30 Central Daylight Time between the last Sunday in April and the last Sunday in October. They assert that defendants have declared their intention of enforcing daylight time and that they will thereby lose (and presumably have lost) one hour of their most profitable business time, it being further claimed that they do most of their business during the hours of darkness. The closing hour of 1:30 A.M. comes one hour sooner under daylight time and would thus be the equivalent of 12:30 A.M., computed on Central Standard Time; hence, plaintiffs claim the benefit of the latter, and seek to prohibit all interference with their alleged right to do so. On their contentions, they would be permitted to do business until 2:30 A.M. Daylight Time. The defendants admitted all formal allegations, but denied all those allegations which constituted the substance of plaintiffs' claims.

We note here that nowhere in the transcript are the names of the various plaintiffs shown. This is most unusual and we consider the omission improper. Counsel should see to it that the reporter lists all the parties, at least in the title of the transcript. The appellate court, as well as the trial court, is entitled to know who the parties are.

The statute over which the controversy rages is Sec. 311.290, RSMo 1959, V.A.M.S. That was the act in force at the time the petition was filed and also at the time of the judgment. It provides, insofar as material here, as follows:

"No person having a license under this law nor any employee of such person 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 a.m. and 6:00 a.m. on weekdays and between the hours of twelve o'clock midnight Saturday and twelve o'clock midnight Sunday, * * * and if said person has a license to sell intoxicating liquor by the drink, his premises shall be and remain a closed place as defined in this section * * * between the hours of 1:30 a.m. and 6:00 a.m. on weekdays and twelve o'clock midnight on Saturday and twelve o'clock midnight on Sunday; * * * Any person violating any provision of this section shall be deemed guilty of a misdemeanor."

Section 311.295, RSMo 1959, V.A.M.S., which is discussed in the briefs, but is not controlling here, was as follows:

"The city council, board of aldermen or other governing body, as the case may be, of any city now or hereafter having a population of three hundred and fifty thousand or more as determined by the last United States decennial census may by ordinance provide that intoxicating liquor may be sold by licensees within the limits of such city for one and one-half hours following twelve o'clock midnight Saturday, and may prohibit the sale thereof before one thirty o'clock a.m. Monday."

Section 311.295 was repealed in 1967, apparently for the reason that the extended hours thereby permitted, from midnight on Saturday to 1:30 A.M. on Sunday, were incorporated into the re-enacted Sec. 311.290. No distinction is made here between the hours on Sunday and on weekdays, and that matter requires no discussion.

Some reference is made in the pleadings and the briefs to an ordinance of Kansas City regulating the hours of retail liquor sales and designating such hours by "Central Standard Time." No such ordinance was received in evidence or covered by stipulation, and we do not take judicial notice of city ordinances. It was stipulated that in the City of St. Louis a Daylight Saving Ordinance had been in force since 1948, but that, nevertheless, those taverns in St. Louis which desired to do so, had been "permitted" to stay open until 2:30 A.M. Daylight Saving Time. Certain exhibits supposedly concerning the St. Louis situation were offered, but they are not contained in the transcript and have not been filed here separately. However, we regard them, the St. Louis ordinance and the Kansas City ordinance, as immaterial and we shall not consider them.

The parties also stipulated: that prior to April 30, 1967 business, commerce, industry, state and local governments, and schools in Missouri (except from "time to time in the City of St. Louis and a few municipalities") had observed Central Standard Time; that since that time "most business, commercial, industrial and financial establishments, agencies of the state and local governments and schools in the State of Missouri have recognized and adopted for use advanced Central Standard Time, or Central Daylight Savings Time as provided for and defined in the Uniform Time Act of 1966"; that such advanced time postpones "the hours of darkness and daylight by one hour * * * " and that this affects plaintiffs' businesses in a substantial and harmful manner; that some other businesses, etc., had postponed by one hour their times of opening and closing in order to avoid "adverse effects"; that these included "stockbrokers, communications media, highway construction and maintenance" (the latter apparently as agencies of state or local government); that defendants had announced an intention of enforcing the closing hours according to Daylight Time.

After the entry of one judgment (which was essentially only a finding for the defendants) and the filing of motions, that judgment was set aside, various answers filed or refiled, and a new judgment entered on July 3, 1967. Therein the court found generally for the defendants on the count seeking an injunction. On the other count it entered a declaratory judgment holding: that Congress did not intend for the Uniform Time Act of 1966, 15 U.S.C.A. Secs. 261-265, to apply to the plaintiffs; that in "enacting Section 311.290, the Missouri Legislature intended that time to apply then in general and customary use throughout the State of Missouri during any given period"; that the time in customary and general use in Missouri since 2:00 A.M. on the last Sunday in April, 1967, has been Advanced Central Standard Time; that the ordinance of Kansas City purporting to establish Central Standard Time as that governing the hours of retail liquor licensees is in conflict with Sec. 311.290 and is therefore invalid. After the overruling of motions for new trial appeals were taken in due course.

The pleadings of the intervenor asserted that the federal Uniform Time Act of 1966 was unconstitutional in various respects insofar as it might be applied to it and the plaintiffs. No such question has been briefed here by any appellant and the point has thus been abandoned. Moreover, it is not claimed by defendants that the federal act was ever intended to be mandatorily applicable to any of these parties plaintiff. We consider that point no further.

The hours of liquor sales have been regulated to some extent in Missouri since 1907. See, Laws 1907, p. 253; Laws 1933-34, Ex.Sess., p. 77; Laws 1935, p. 267; Laws 1941, p. 412; Laws 1957, p. 27. These statutes, by amendment and cumulative effect, became our Sec. 311.290, RSMo 1959. As already indicated, that section was amended further in 1967, Sec. 311.290, Cum.Supp.1967, but in respects not material here. Our problem is simply this: When the legislature prohibited the sale of liquor between "1:30 a.m. and 6:00 a.m. on week days" and between "twelve o'clock midnight Saturday and twelve o'clock midnight Sunday" (with a subsequent extension on the latter), did it permanently fix those hours as computed according to Central Standard Time? Plaintiffs say that it did; defendants say that it did not.

The basic contention of plaintiffs is: that Central Standard Time was the method of computation in universal use when Sec. 311.290 was enacted, that the legislature intended that a computation in universal use when Sec. 311.290 was enacted, that the legislature intended that a computation of time and enforcement according to that method be used, and that plaintiffs may not be deprived of that right; also, that the Uniform Time Act of 1966, 15 U.S.C.A. Secs. 261-265, does not apply either to public or...