State ex rel. Eagleton v. McQueen

• Decision Date: 11 May 1964
• Docket Number: No. 50435,50435
• Citation: 378 S.W.2d 449
• Parties: STATE of Missouri ex rel. Thomas F. EAGLETON, Attorney General of the State of Missouri, and Lawrence F. Gepford, Prosecuting Attorney for Jackson County, Missouri, Relators, v. Honorable Jeo W. McQUEEN, Judge of the circuit Court of Jackson County, Missouri, at Kansas City, Respondent.
• Court: Missouri Supreme Court

Page 449

378 S.W.2d 449

STATE of Missouri ex rel. Thomas F. EAGLETON, Attorney

General of the State of Missouri, and Lawrence F.

Gepford, Prosecuting Attorney for

Jackson County, Missouri, Relators, v. Honorable Jeo W. McQUEEN, Judge of the circuit Court of

Jackson County, Missouri, at Kansas City, Respondent.

No. 50435.

Supreme Court of Missouri, En Banc.

May 11, 1964.

Thomas F. Eagleton, Atty. Gen., Lawrence F. Gepford, Pros. Atty. for Jackson County, Arthur R. Tucker, Samuel H. Liberman, Charles L. Edson, Lewis, Rice, Tucker, Allen & Chubb, st. Louis, Sp. Counsel, for relators.

Stinson, Mag, Thomson, McEvers & Fizzell, D. Brook Bartlett, Lawrence R. Brown, Kansas City, for respondent.

STORCKMAN, Judge.

This is an original proceeding for a writ to prohibit the Circuit Court of Jackson County from taking any action to enforce its order temporarily enjoining the relators from enforcing Section 563.721, RSMo Supp.1963, V.A.M.S., Laws 1963, Senate Bill No. 49, which became effective on October 13, 1963, and is sometimes referred to as the Sunday Sales Act.

On August 26, 1963, Katz Drug Company, a corporation engaged in selling drugs and many other items at retail in Jackson and other counties in Missouri, filed a declaratory judgment action against the prosecuting attorney of Jackson County. Thereafter, the attorney general was permitted to intervene and became a party defendant. The petition sought a temporary and a permanent injunction to prevent the defendants from attempting to enforce the Act and further prayed for a declaration and determination that the Act violated the Constitution of Missouri and was void. An order to show cause was issued and the defendants filed their return. A hearing was held and thereafter on October 9, 1963, the circuit court issued a temporary injunction restraining and enjoining the defendants from enforcing or attempting to enforce the Act against the plaintiff Katz until final determination of its constitutionality by the Supreme Court of Missouri or until further order of the circuit court.

On October 9, 1963, the attorney general and the prosecuting attorney, as relators, filed in this court their petition for a writ of prohibition. A preliminary rule in prohibition was issued against the respondent circuit judge on the following day. The return to the preliminary rule alleges 'that relators ought not to have a Writ of Prohibition herein because the facts stated in the petition and appearing in the Transcript of the Evidence (Exhibit 6 to the petition) show, as a matter of law, the respondent has not exceeded his authority or jurisdiction and that he had the legal authority to issue the temporary injunction he has issued and to enforce the same which relators seek to prohibit him from doing.' Thereafter, the relators filed a motion for judgment on the pleadings on the ground 'that as a matter of law relators are entitled to judgment making absolute the preliminary rule in prohibition.'

Gem Stores, Inc., v. O'Brien, Mo., 374 S.W.2d 109, decided by this court en banc on December 9, 1963, disposed of some of the issues presented by Katz in its petition for a declaratory judgment. The Gem case held that the Sunday Sales Act was not violative of the due process and equal protection provisions of the State and Federal Constitutions and that it was not a 'special law' in violation of the Constitution of Missouri. The respondent in this action does not undertake to relitigate those issues. The only constitutional question presented by the respondent is that the Act is so vague and indefinite that citizens cannot ascertain or be informed of its meaning contrary to the due process provision of Art. 1, Sec. 10, of the Missouri Constitution, V.A.M.S., and in violation of the right of a person accused in a criminal proceeding to demand the nature and cause of the accusation against him as provided by Art. 1, Sec. 18(a) of the Missouri Constitution. It is further contended that the respondent properly exercised his discretion in issuing the temporary injunction. We will first consider the constitutional question.

The respondent attacks as vague and uncertain the terms used in the Act to describe tha articles of merchandise, the sale of which is prohibited on Sunday as well as the categories of merchandise excluded from the prohibition. The pertinent portions of the Act, now Sec. 563.721, are as follows:

'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 section is hereby declared to be a public and common nuisance.'

The basic question is whether Katz can on Sunday lawfully engage in the business of selling or offering for sale the classes of merchandise described in Sec. 563.721. This presents a justiciable controversy under the Declaratory Judgment Act in which Katz has a legally protectible interest, and it is not necessary for the seller to be charged with a violation in order to have the constitutionality of the Act determined. Section 527.020 RSMo 1959, V.A.M.S.; Gem Stores, Inc., v. O'Brien, Mo., 374 S.W.2d 109, 113; Chaffin v. Christian County, Mo., 359 S.W.2d 730, 732; Terrace v. Thompson, 263 U.S. 197, 215-216, 44 S.Ct. 15, 68 L.Ed. 255. Since the issue of vagueness is the only specification of unconstitutionality presented and briefed in this proceeding, other grounds alleged in the petition of Katz for a declaratory judgment will be deemed to be abandoned and we will not undertake to decide them.

The petition for a declaratory judgment states in general terms that the Sunday Sales Act 'is so vague, indefinite and uncertain as to make unascertainable the items of merchandise that can and that cannot be sold and the standards of conduct required and the nature and cause of acts complained of as violative thereof as to deprive plaintiff and others of their liberty and property without due process of law and is therefore violative of Section 10 and Section 18(a) of Article I of the Constitution of Missouri.' At the hearing on the order to show cause, Mr. John A. Roach, senior vicepresident and director of operations for Katz Drug Company, testified that the Company handled some items in all of the categories named in the Act except motor vehicles, and if the new law was enforced Katz would have to close some of its stores on Sunday. He specifically claimed that there was doubt and uncertainty as to whether certain items of merchandise should be classified as clothing, wearing apparel, hardware, toys, souvenirs and novelties, and therefore prohibited or permitted under the Act. Other items were mentioned in argument as illustrative. On the other hand, Mr. Roach made knowledgeable use of these terms in describing the departments of the Company's stores and location of merchandise in them. The evidence is not persuasive that any real dilemma results from the terms used in the Act.

A state statute is presumed to be constitutional and it will not be held otherwise unless it clearly and undoubtedly contravenes some constitutional provision. Hickey v. Board of Education of City of St. Louis, 363 Mo. 1039, 256 S.W.2d 775, 778; Walters v. City of St. Louis, 347 U.S 231, 237-238, 74 S.Ct. 505, 98 L.Ed. 660; 16 C.J.S. Constitutional Law Sec. 98b, p. 359.

The standards for determining the constitutional sufficiency of a statute against an attack on the ground of vagueness are quite well...