State v. Halliburton

• Court: Missouri Court of Appeals
• Writing for the Court: McDOWELL
• Citation: State v. Halliburton, 276 S.W.2d 229 (Mo. App. 1955)
• Decision Date: 10 February 1955
• Docket Number: No. 7381,7381
• Parties: STATE of Missouri, Respondent, v. Roosevelt HALLIBURTON, Appellant.

Page 229

276 S.W.2d 229

STATE of Missouri, Respondent, v. Roosevelt HALLIBURTON, Appellant.

No. 7381.

Springfield Court of Appeals, Missouri.

Feb. 10, 1955.

Ted M. Henson, Poplar Bluff, for appellant.

Rex A. Henson, Pros. Atty., of Butler County, Poplar Bluff, for respondent.

McDOWELL, Presiding Judge.

This appeal is from a judgment of the Circuit Court of Butler County finding defendant guilty of a misdemeanor, selling fermented beer on Sunday.

Roosevelt Halliburton was charged by information filed by the Prosecuting Attorney of Butler County in the Magistrate Court with having sold six cans of Stag beer, a fermented liquor, with an alcoholic content not in excess of 3.2 per cent, to one, Louis Johnson, on Sunday at 1:30 p. m.

Defendant was found guilty in the Magistrate Court and fined $25, from which judgment he appealed to the Circuit Court.

A jury was waived and the cause was submitted to the Circuit Court on an agreed statement of facts, as follows:

'On the 18th day of April, 1954, the first day of the week, commonly called Sunday, one Roosevelt Halliburton, at his place of business in Neelyville, Butler County, Missouri, did sell to one Louis Johnson, six cans of Stag beer, a fermented liquor, 'with an alchoholic content not in excess of 3.2 per cent, for a consideration of one dollar and fifty cents, good and lawful currency of the United States of America; that said sale was made at 1:30 P.M. That the said Roosevelt Halliburton was a holder of a 3.2 beer license.''

Upon this testimony the court found defendant guilty and assessed his punishment at a fine of $25.00. Defendant appealed.

The sole question presented to the appellate court is the sufficiency of the charge to state an offense.

The information charges an offense under section 563.720 RSMo 1949, V.A.M.S., commonly known as the 'Sunday Blue Law', which has been on our statute books since 1825. It provides:

'Every person who shall expose to sale any goods, wares or merchandise, or shall keep open any ale or porter house, grocery or tippling shop, or shall sell or retail any fermented or distilled liquor on the first day of the week, commonly called Sunday, shall, on conviction, be adjudged guilty of a misdemeanor and fined not exceeding fifty dollars.'

Defendant says that section 563.720, so far as it applies to the sale of 3.2 beer, has been repealed by implication by the Liquor Control Act.

The Liquor Control Act pertaining to nonintoxicating beer is contained in Chapter 312 RSMo 1949, V.A.M.S. Section 312.410 of the Act provides:

'No person having a license under the provisions of this chapter, shall sell, give away or otherwise dispose of, or suffer the same to be done, upon or about his premises, any nonintoxicating beer in any quantity between the hours of one-thirty a. m., and six a. m., and any person violating any provision of this section shall be deemed guilty of a misdemeanor and shall be punished by imprisonment in the county jail for a term of not more than one year, or by a fine of not less than fifty dollars nor more than one thousand dollars or by both such fine and jail sentence.'

There is no dispute as to the facts. Defendant had a license to sell nonintoxicating beer. The sale was made on Sunday at 1:30 p. m. There was no violation of the Liquor Control Law.

To sustain defendant's contention that the charge fails to state an offense; that the section of the Blue Law under which the charge is brought was repealed by implication by section 312.410, above set out, defendant cites City of Flat River v. Mackley, Mo.App., 212 S.W.2d 462.

In this case the defendant was convicted of violating a city ordinance of the City of Flat River by selling 3.2 beer. The ordinance made it an offense to sell fermented liquor or beer with alchoholic contents of not less than one half of one per cent by volume nor exceeding 3.2% by weight. It was contended that the ordinance was void because it was not in conformity with the state law.

It is true that the St. Louis Court of Appeals in this decision stated that a proper determination of the question involved requires a consideration of our state laws relating to the sale of intoxicating and nonintoxicating liquor, as well as the respondent-City's ordinance. The opinion then sets out the section of our statute relating to sale of nonintoxicating beer on Sunday, commonly known as the Blue Law and states that this law has regard to Sunday as a day of rest and not as to its religious character, citing State v. Chicago, B. & Q. R. Co., 239 Mo. 196, 143 S.W. 785. It then sets out section 4891, R.S.Mo.1939, as amended by Laws of Missouri 1941, pp. 412, 413, which is now section 311.290 RSMo 1949, of the Liquor Control Act, V.A.M.S.

The court, 212 S.W.2d on page 464, quotes from what is now section 312.410 of the statute, that part which forbids a person having a license under the Liquor Control Act selling any nonintoxicating beer between the hours of 1:30 a. m. and 6:00 a. m.; that the appellant contends the ordinance in question is void because it prevents the sale of 3.2 beer at any time on Sunday which is in conflict with the section under the Liquor Control Act. On page 465 of 212 S.W.2d this statement was made:

'* * * the Legislature did not go that far in Section 4995, supra [Section 312.410 RSMo 1949, V.A.M.S.], relating to nonintoxicating beer. In the last named section the sale of nonintoxicating beer is prohibited only 'between the hours of one-thirty o'clock a. m. and six o'clock a. m.,' without any mention of Sunday. From this comparison of the above sections dealing with intoxicating liquor on the one hand and nonintoxicating beer on the other, it appears that the Legislature intended to provide for every phase of the liquor problem, including Sunday sales of intoxicating liquor as well as sales of nonintoxicating beer.

'Respondent City contends, however, that Section 4742, supra [Section 563.720 RSMo 1949, V.A.M.S.], the general 'Sunday' law, was not impliedly repealed or affected by Section 4995, supra, the State nonintoxicating beer law. State v. Malone, 238 Mo.App. 939, 192 S.W.2d 68, among other cases, is cited by respondent in support of its view.

'It is true that in State v. Malone, supra, Section 4742, supra, the 'Sunday' law, was held to be in full force and effect and not impliedly repealed by Section 4995, supra, the State nonintoxicating beer law. However, State v. Malone, supra, was a prosecution brought by the State against the defendant therein for violation of the State law, Section 4742, supra--the general 'Sunday' law--for selling two pints of beer, a fermented liquor on Sunday. The only question raised in that case was whether or not Article 2 of Chapter 32 of the Revised Statutes of Missouri [Section 312.020 et seq. RSMo 1949, V.A.M.S.], being the 'nonintoxicating beer law,' supra, repealed Section 4742, the general 'Sunday' law, by implication. * * *'

It states that the Springfield Court of Appeals held that section 4995, relating to nonintoxicating beer and section 4742, the general Sunday law, can both be given force and effect without violence to either and that the later section 4995 did not, by implication, repeal section 4742.

The opinion states that the conviction under the city ordinance must be affirmed but that the court did not reach its conclusion by virtue of the decision in the Malone case. The court made this statement:

'* * * We feel compelled to say, however, that we do not agree with the view that the State 'nonintoxicating beer' law, Article 2, Chapter 32, supra, had no effect upon Section 4742, supra, the general 'Sunday' law of the State.

'A careful consideration of Section 4950, supra [Section 312.020 RSMo 1949, V.A.M.S.], dealing with 'nonintoxicating beer,' shows that said section, after providing that beer having an alcoholic content of not less than one-half of one per cent by volume nor exceeding 3.2 per cent by weight is declared to be nonintoxicating beer and 'may be lawfully manufactured and sold,' etc., further provides, in the latter part thereof, 'and such manufacture, sale, transportation, and consumption, shall be exempt from the provisions of chapter 31, Revised Statutes of Missouri, 1929; and exempt, also, from any of the provisions of said chapter and of any other law of this state in conflict with the provisions of this article.'' (Emphasis ours.)

This statement of the law is directly in conflict with the holding of the Springfield Court of Appeals, State v. Malone, 238 Mo.App. 939, 192 S.W.2d 68. However, the law as declared by the St. Louis Court of Appeals, holding that the Liquor Control Act is in conflict with section 563.720, commonly known as the 'Sunday Blue Law', is obiter dictum.

Nickols v. North Kansas City, 358 Mo. 402, 214 S.W.2d 710, 712. Judge Clark, speaking for the Supreme Court, in this opinion, stated:

'Appellants say that Section 4742, so far as it applies to the sale of 3.2% beer, has been repealed by implication by the Liquor Control Act. It is unnecessary to decide that point for we believe the ordinances are not dependent for validity upon that section. But see State v. Malone, 238 Mo.App. 939, 192 S.W.2d 68.'

This opinion was handed down November 8, 1948, the opinion of the St. Louis Court of Appeals, herein set out, was handed down June 15, 1948, and State v. Malone, 238 Mo.App. 939, 192 S.W.2d 68 was handed down January 11, 1946.

The same question, as involved in the instant case, was directly passed upon in the Malone case. In that case defendant was convicted under the Sunday Blue Law of selling nonintoxicating beer on Sunday. It was contended that this law was repealed by implication by the Liquor Control Act as in the instant case. Judge Vandeventer, speaking for the court, 192 S.W.2d on page 70, stated:

'* * * There is no contention that Section 4742 has been specifically repealed. If Section 4742 has not been repealed the information is sufficient and the ...