205 Mo. 578 | Mo. | 1907
This is a> civil action by the city of St. Louis against the defendant to recover a fine for the violation of an ordinance of said city numbered 19991, or section 1398 of the general ordinances of said city, approved April 3, 1900, which provides: “Any keeper of a meat shop who shall fail, first, to obtain any license therefor, or shall fail to keep his said license and all transfers thereof posted up in his shop, or shall open said shop or sell therein any article on a Sunday after nine o’clock a. m., shall be deemed guilty of a misdemeanor and upon conviction thereof be fined not less than twenty-five nor more than one hundred dollars for each and every offense.”
The information charged that defendant on Sunday, March 13, 1904, kept open his meat shop at 2906 Easton avenue in said city and did after nine‘o’clock in the forenoon of said Sunday keep said shop open for the sale of fresh and salt meats, contrary to said ordinance. In the First District Police Court defendant was convicted and fined twenty-five dollars. From that judgment he appealed to the St. Louis Court of Criminal Correction. In the last-named court, he admitted the fact, but demurred to the evidence, on the ground that the ordinance was void because in conflict with sections 2243 and 2244, Revised Statutes 18991, and article 4, section 53, of the Constitution of Missouri. and the court sustained his demurrer and discharged him. The city appealed to this court.
I. This court has jurisdiction because this is a civil action and the. city of St. Louis is a political subdivision of the State and for the further reason that
II. The defendant is not represented in this court by counsel or brief, but the cause has been presented by counsel for the city. The St. Louis charter, article 3, section 26, paragraphs 5, 10 and 14, conferred the power to pass this ordinance and unless the ordinance is void because in conflict with the. Constitution and laws of the State, the judgment of the Court of Criminal Correction is wrong. It cannot he held invalid because it imposes a fine for an act which the statutes of the State denounce as a criminal offense and provide a punishment therefor. [State v. Muir, 164 Mo. 610; State v. Gustin, 152 Mo. 108.] But notwithstanding the charter is sufficiently comprehensive to authorize the ordinance in question, we are required by the demurrer of the defendant to inquire whether, in the language of section 23 of article 9 of the Constitution, the charter provision, is “in harmony with and subject to the Constitution and laws of Missouri.” We take it this was one of the principal contentions of the defendant in the Court of Criminal Correction.
Was and is the ordinance invalid because inconsistent with sections 2243 and 2244, Revised Statutes 1899'? Section 2243 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.” Section 2244: “The last section shall not be construed to prevent the sale of any drugs or medicines, provisions or other articles of immediate necessity.” Two inconsistencies apparently suggest themselves. First, section 2243 of the statute makes it a criminal offense to sell “goods, wares or merchandise” at any hour or
Does the fact that the Legislature fixed the punishment for the sales on Sunday prevent the city making a higher fine? We think not, and so it was ruled in Kansas City v. Hallett, supra. The scope and purpose of the statute and ordinance are the same, the
III. Is the ordinance void as a local or special law under the provision of section 53 of article 4 of the Constitution? By its terms, this section of the organic law prohibits the General Assembly from passing any special law upon certain subjects specified in the said section and then adds: “In all other cases where a general law can be made applicable, no local or special law shall be enacted.”
The constitutionality of our Sunday law was affirmed in 1854 (State v. Ambs, 20 Mo. 214), and such láws have been held constitutional in almost every State in the Union, on the ground that wisdom dictates that men should refrain from labor at least one day in seven in order to promote the physical and moral well-being of society at large. These acts are sustained as municipal or police regulations without reference to the fact that the day of rest is also the Christian’s day of rest and worship. [Bloom v. Richards, 2 Ohio St. 387; State v. Nichols, 28 Wash. 628, and cases cited;
We do not -understand that the unconstitutionality of our Sunday laws, sections 2243 and 2244, Revised Statutes 1899, is asserted, hut rather that the ordinance in question is void because of the arbitrary discrimination against the meat shops, in that they are not permitted to sell their meat after nine o’clock Sunday morning. It will certainly not be contended that in the absence of this ordinance the defendant was at liberty to sell his meat at any time on Sunday. The general laws of this State are in force and as obligatory upon the citizens of St. Louis as they are ini any other city or town or the country districts of the State. What then is the true construction of this ordinance? We think that it is obvious. The general law embodied in sections 2243 and 2244 made an exception of the sale of medicines, provisions and other articles of immediate necessity, leaving it open in the case of a prosecution for the State to show that any given act was not within the" exception. The Municipal Assembly of St. Louis within its charter powers may pass ordinances for the well-being of its inhabitants and its police act to insure pure milk has very recently been affirmed by this court. [St. Louis v. Liessing, 190 Mo. 464, and kindred cases.]
Equally well established by the great weight of authority in this country is the doctrine that for good reasons, distinctions not purely arbitrary, exceptions may be made to a general act of the Legislature or a municipal ordinance without infringing’ the constitutional inhibition against special or class legislation.
No reasonable man will insist that the exceptions in section 2244 in favor of the sale of articles of immediate necessity on Sunday rendered section 2243 void as unequal and arbitrary; on the contrary, it might well be contended that in the absence of such qualification
The judgment of the St. Louis Court of Criminal Correction is reversed and the cause remanded for a new trial in accordance with the views herein expressed.