State v. Katz Drug Co.

• Decision Date: 11 December 1961
• Docket Number: No. 48587,48587
• Parties: STATE of Missouri, Plaintiff-Respondent, v. KATZ DRUG COMPANY, a Corporation, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 678

352 S.W.2d 678

STATE of Missouri, Plaintiff-Respondent, v. KATZ DRUG COMPANY, a Corporation, Defendant-Appellant.

No. 48587.

Supreme Court of Missouri, En Banc.

Dec. 11, 1961.

Rehearing Denied Jan. 8, 1962.

Corinne Richardson, St. Louis, John C. Noonan, Kansas City, Orville Richardson, St. Louis, for appellant; Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Hullverson, Richardson & Hullverson, St. Louis, of counsel.

Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., for respondent.

Arthur R. Tucker, Charles L. Edson, R. Timothy Hanlon, Samuel H. Liberman, St. Louis, amici curiae; Lewis, Rice, Tucker, Allen & Chubb, St. Louis, of counsel.

HYDE, Chief Justice.

Defendant was convicted of exposing to sale goods, wares and merchandise on Sunday in violation of Secs. 563.720 and 563.730. (Statutory references are to RSMo and V.A.M.S. unless otherwise indicated.) We have jurisdiction because defendant contends these statutes are unconstitutional on grounds involving the construction of the Constitution of the United States and the Constitution of Missouri.

These statutes are as follows:

'Sec. 563.720. Every person who shall expose to sale any goods, wares or merchandise, or shall keep open any ale or porter house, grocery or tipling 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.

'Sec. 563.730. Section 563.720 shall not be construed to prevent the sale of any drugs or medicines, provisions or other articles of immediate necessity.'

Defendant claims 'neither the word 'provisions' nor the phrase 'articles of immediate necessity' fixes any ascertainable standard by which guilt may be determined and furnishes no adequate guide to future conduct or the adjudication of past action'; and that 'they are vague and uncertain and, therefore, void in violation of common law rules and the due process clause of the 14th Amendment to the Constitution of the United States and Article 1 of section 10 of the Missouri Constitution, V.A.M.S., both of which require fair warning to be given to individuals of the criminal consequences of their conduct and an opportunity to have crimes charged against them tried under clear and definite rules of law disclosed to and applied by courts and juries.'

Defendant also claims these statutes 'violate the Missouri Constitution, Article 2, section 1, and Article 3, section 1, providing for a separation of the powers of the legislature and the judiciary and empowering only the legislature to enact or make law and establish standards of conduct,' because they 'fail to lay down any ascertainable rule of law by which courts and juries may determine whether or not an article falls within the classification of 'provisions' or 'articles of immediate necessity"; so that 'courts and juries are permitted by the legislature to make their own laws in this field.'

Defendant further claims these statutes 'permit one to be charged with crime under them, without any definition of the word 'provisions' or of the phrase 'articles of immediate necessity', in violation of Article 1, section 18(a) of the Missouri Constitution providing that in criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation.'

The State's evidence showed that four members of the Meat Cutters Union met on Sunday morning, February 22, 1959, and decided to go to defendant's store at Eighth and Washington in the City of St. Louis to make purchases of articles they did not need. Personal motivations were stated to be because of religion, desire to go to church on Sunday and worry about being made to work on Sunday. Articles purchased were an electric frying pan, a card table, two decks of playing cards, and 20 ballpoint pens and refills. These purchases were made for the purpose of involving defendant in a violation of law. Defendant offered no evidence. It is to be noted that no contention is made on this appeal of conflict of these statutes with constitutional provisions for religious liberty, the issue recently decided by the United States Supreme Court in McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393; Gallagher v. Crown Kosher Super Market of Massachusetts, 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536; Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551; and Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563.

Long before these decisions, we said: 'The Missouri Sunday laws have regard to that day as a day of rest, and not to the religious character of the day. They are civil, not religious, regulations, and are based upon a sound public policy which recognizes that rest one day in seven is for the general good of mankind. Hennington v. [State of] Georgia, 163 U.S. 299-304, 16 Sup.Ct. 1086, 41 L.Ed. 166. Those laws are sustained as civil, municipal, or police regulations, without reference to the fact that the day of rest is also the Christian's day of rest and worship.' (State v. Chicago, B. & Q. R. Co., 239 Mo. 196, 143 S.W. 785, 786; see also ABC Liquidators, Inc. v. Kansas City, Mo.Sup., 322 S.W.2d 876, 880.) This principle is well illustrated by the present English Shops Act of 1950 (14 George VI 462) in which the provisions concerning Sunday trading (Part IV, p. 500) are included with comprehensive provisions concerning closing hours and conditions of employment during week days. It is also worthy of note that this Act contains a detailed schedule of 'Transactions for the purposes of which a shop may be open in England and Wales for the serving of customers on Sunday.' Perhaps our Legislature would not consider such detailed schedules advisable but it would seem to be time to modernize our Sunday statutes since they contain some terms applicable to conditions of 1825, when they appeared as part of our first published statutes (RS 1825, p. 311), rather to the present time. Certainly a revision now could give better treatment and better standards for modern conditions but that is a matter for the Legislature.

As to the claim of vagueness, we are not troubled by the term 'provisions.' Black's Law Dictionary defines it as 'articles of food for human consumption.' In 73 C.J.S. 268 its common usage is said to be 'food and provender for men and beasts' including 'meats and groceries,' and that 'a definition of the term as meaning food for mankind only is too narrow.' (See also definitions in the second and third editions of Webster's New International Dictionary.) In the context in which it is used 'drugs or medicines' and 'other articles of immediate necessity,' we think the broader definition is intended and so rule.

We have previously held in State v. Campbell, 206 Mo. 579, 105 S.W. 637, 639, that if, under these statutes, one had the right to sell an article 'it logically follows that he had the right to expose it for sale.' Therefore, these statutes do not prevent stores selling 'drugs or medicines, provisions or other articles of immediate necessity' from being kept open on Sunday for the purpose of selling them. The troublesome question is: What is meant by 'other articles of immediate necessity'? This term has had a long history and is closely related to the term found in Sec. 563.690 prohibiting Sunday work and labor except 'the household offices of daily necessity, or other works of necessity or charity.' This term 'works of necessity or charity' originated in the basic English Sunday Statute, 29 Charles II, c. 7, which 'found its way in American colonial laws and has descended into all their successors currently in force.' (See separate opinion of Mr. Justice Frankfurter in the McGowan case, 81 S.Ct. l. c. 1189; see also Appendix II therein showing Sunday laws of all states in tabular form, 81 S.Ct. l. c. 1202-1217.) More than half the states have this 'works of necessity' provision and there are many decisions construing it. (See 50 Am.Jur. 814, Sundays and Holidays, Secs. 16-18; 83 C.J.S. Sunday Sec. 11, p. 812, Secs. 13-18, p. 816 et seq.; Annotations 47 A.L.R. 1106, 60 A.L.R. 763, 24 A.L.R.2d 825; Sunday Laws, Ringgold, Chap. X, II; Harris on Sunday Laws, Chap. III, secs. 97-119.) The 'other articles of immediate necessity' exception for sales seems to have been adopted only in Kansas and Missouri, with somewhat similar but differently worded exceptions for sales in New Hampshire and Oklahoma (N.H. Sec. 578(4); Okla. T21, Sec. 908; see table commencing 81 S.Ct. 1202.) The issue of vagueness of such terms as 'necessity' has been considered in several cases, the most recent being the McGowan case (81 S. Ct. l. c. 1106) where an exemption to Sunday sales was 'merchandise essential to, or customarily sold at, or incidental to, the operation of' bathing beaches, amusement parks and other designated establishments in the area involved. The Supreme Court said 'that business people of ordinary intelligence' would know or be able to find by reasonable investigation what exemptions are encompassed by the statute. The court therefore held: 'Under these circumstances, there is no necessity to guess at the statute's meaning in order to determine what conduct it makes criminal.'

On this issue the Supreme Court of Pennsylvania said, as to the meaning of the prohibition against performing 'any worldly employment or business' on Sunday, in Commonwealth ex rel. Woodruff v. American Baseball Club of Philadelphia, 290 Pa. 136, 138 A. 497, 500, 53 A.L.R. 1027: 'On appellant's second proposition, that the act is unconstitutional for uncertainty, we think very little is required to be said. See 37 Cyc. 541; 12 C.J. 1275. It has been on the statute books for 133 years, and has been the subject of much judicial consideration. When its language is given its ordinary, not a strained, construction, its meaning w...