Gramex Corp. v. Von Romer

DONNELLY, Judge. This appeal challenges the validity of § 578.110, RSMo Supp.1979, and involves the construction and application of art. VI, § 8, of the Missouri Constitution. Section 578.100, RSMo 1978, commonly referred to as Missouri’s “Sunday Sales” or “Blue Law,” provides, in part: “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 * * *.” In 1977, this section was amended, and in 1978, § 578.105 was enacted, to provide certain Missouri counties an opportunity to exempt themselves from the application of § 578.100. In 1977, the people of the counties of Jackson, Clay, and Platte availed themselves of § 578.100.5 to exempt themselves from the provisions of the law. Re-visor’s Note, § 578.100, RSMo 1978. And, in 1978, the people of the counties of Buchanan and Cass voted to exempt themselves through the procedure outlined in § 578.105. Revisor’s Note, § 578.105, RSMo Supp.1979. In 1979, the General Assembly passed, and the Governor approved, House Bill No. 56 (now codified as § 578.110, RSMo Supp. 1979), the subject of this litigation. This section provides in part: “1. As used in this section, the term ‘area’ includes all cities not within a county, all first class counties having a charter form of government and adjoining such cities not within a county and all first class counties which adjoin such first class counties having a charter form of government and adjoining cities not within a county; and the term ‘county’ means any county of this state not within an area. [523] “2. In addition to the counties which may exempt themselves from the application of section 578.100, under the provisions of section 578.100, or section 578.-105, any other county or area may also exempt itself from the application of section 578.100 by a vote of the qualified voters of the county or area; provided that, before any area may so exempt itself from the provisions of section 578.-100, the qualified voters of each city not within a county and each county within such area shall vote on the proposal for exemption from the provisions of section 578.100, RSMo, at the same election and a majority of the total votes cast in such area shall be in favor of the proposal before either such city or any of such counties may be exempted from the provisions of section 578.100.” Appellant Gramex Corporation is engaged in the business of retail sales in St. Louis County and the City of St. Louis. Gramex operates four “Grandpa Pigeon’s” stores, a sporting goods store, and a computer store in the St. Louis area. On August 9, 1979, Gramex and its president, J. W. Holley, filed a petition in the Circuit Court of St. Louis County seeking a declaratory judgment that § 578.110 is unconstitutional and asking for injunctive relief. Named as defendants were members of the St. Louis County Council and the St. Louis County Board of Election Commissioners, the Secretary of State of Missouri, and the Revisor of Statutes for the State of Missouri. Thereafter, the Attorney General of Missouri, pursuant to § 527.110, RSMo 1978, moved to intervene as defendant, as well as six corporations making up the “Committee for Blue Law Repeal,” which sponsored a petition drive to place on the November 6, 1979, ballot the proposition to exempt, per § 578.110.1, the “area” of the City of St. Louis, St. Louis County, Jefferson County, and St. Charles County, from the provisions of § 578.100. The members of the Board of Election Commissioners, the Secretary of State, and the Revisor of Statutes moved to be dismissed. The motions to intervene were sustained by the circuit court. The motions to dismiss were taken with the ease. On October 11, 1979, on the basis of a written stipulation of facts and the testimony heard in an evidentiary hearing, the trial court denied the declaratory and injunctive relief, finding § 578.110 “not unconstitutional in any respect.” On October 15,1979, appellants requested this Court to expedite the appeal. This request was denied. On November 6, 1979, the election proceeded. The proposition failed to carry a majority of the votes in the “area.” On the same day, however, electors in Boone, Lafayette, Marion, Ralls, and Saline counties voted to exempt themselves from § 578.100 by use of the provisions of § 578.110. Revi-sor’s Note, § 578.110, RSMo Supp.1979. Although the election has already been held, and no part of the St. Louis area has been exempted from § 578.100, as appellants feared, the case is not moot as it involves questions “capable of repetition, yet evading review.” Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). Appellants argue that § 578.110 violates art. VI, § 8, of the Missouri Constitution which provides: “Section 8. Classification of counties — uniform laws. — Provision shall be made by general laws for the organization and classification of counties except as provided in this constitution. The number of classes shall not exceed four, and the organization and powers of each class shall be defined by general laws so that all counties within the same class shall possess the same powers and be subject to the same restrictions. A law applicable to any county shall apply to all counties in the class to which such county belongs.” This provision is violated, appellants contend, because § 578.110.1, although written in general terms, does not apply uniformly [524] to all counties of the same class as required by the last sentence of art. VI, § 8. The statute does not apply uniformly, appellants argue, because the City of St. Louis, St. Louis County and Jefferson and St. Charles counties, as an “area,” are required to vote as a block, /. e., a majority of the total votes cast in the “area” is necessary to exempt the “area” from § 578.100, a requirement not imposed on other first class counties, e. g., Greene County. In addition, the statute only provides one method for submitting the exemption question to the voters in the “area” — by petition — whereas other counties, including other first class counties, may submit the issue either by petition or upon a majority vote of the governing body of the county. On its face, then, § 578.110 seems clearly to violate the constitutional proscription of art. VI, § 8, which states: “A law applicable to any county shall apply to all counties in the class to which such county belongs.” When art. VI, § 8, is read in its entirety, however, a question is raised as to whether the only laws which the last sentence of the section requires to be applicable to all counties within a class are laws dealing with the classification and organization of counties. The case of Chaffin v. County of Christian, 359 S.W.2d 730 (Mo. banc 1962), is cited by intervenors as support for this interpretation. Chaffin, at 734, states: “Prior to the adoption of the 1945 Constitution, there was no constitutional provision with respect to classification of counties or limitation upon the number of classes which the legislature might create. As a result, numerous classifications were made for different purposes. The purpose of the constitutional provision was to simplify and make more effective the organization and operation of the counties. It provides that the provisions for the organization and classification of counties shall be by general laws and that the organization and powers of each class shall be defined by general laws.” The Chaffin opinion, in ascertaining the purpose of § 8, relied on the report of the Committee on Local Government and remarks made by that Committee’s chairman, Dr. William L. Bradshaw, in presenting the section to the Constitutional Convention for perfection. The Committee’s report stated: “Section 8 is a new one on the organization and classification of counties. It is similar to Section 7 [now art. VI, § 15] which provides for the organization and classification of cities. The provision is designed to permit a more flexible system of county government rather than one uniform system as now required. It will permit the Legislature to formulate a more simple set-up of government for counties of relatively low valuation. It is also consistent with a home rule provision for a few larger counties whose problems are essentially different from the other counties. Such a home rule provision has been tentatively approved by Committee No. 8.” Report of the Committee on Local Government — No. 9, File No. 11, p. 6. Dr. Bradshaw’s remarks to the Convention concerning this section included this statement: “The Committee considers that the provisions for classification of counties are very important because under the interpretation the present version of uniformity idea in our government that we have basically the same fundamental framework of government in the smallest rural county and in the largest urban one. It remains, and in some cases you have too much governmental machinery, and in other cases you have to build a huge superstructure on a very small foundation. We thought a provision permitting the classification of counties would enable the Legislature to work out a more suitable governmental set-up for counties, various types of counties in the state. That’s the purpose of the section.” Debates of the Missouri Constitution 1945, p. 2207. Although Dr. Bradshaw’s remarks and the Committee report very clearly state that the purpose of the section was to provide for the organization and classification of counties and the first two sentences of [525] the section obviously relate to that purpose, nothing in Dr. Bradshaw’s statement or in the report shed any light on why the last sentence is present in § 8. To ascertain why the last sentence is included, we must dig deeper into the history of the section. Three proposals relating to local government were submitted to the Convention. The proposal that most closely resembled the Committee’s ultimate recommended section was introduced by Delegate Howard C. Potter, a Springfield attorney. His proposal, No. 314, read: “The general assembly shall provide by general laws for the organization and class of counties. The number of such classes shall not exceed four and the power of each class shall be defined by general law so that all counties of the same class will possess the same powers and by such to the same restrictions: Provided, nothing in this provision contained shall be construed to prevent the establishment of alternate forms of county government. “No law shall be enacted which shall not apply to all of the counties in at least one of the classifications established by the general assembly.” Proposals, The 1943-44 Constitutional Convention of Missouri, No. 314. Like the last sentence of art. VI, § 8, the last sentence of Potter’s proposal appears extraneous to the proposal’s primary task of charging the General Assembly with the responsibility of organizing and classifying counties. The only clue as to the purpose of Potter’s last sentence (which came out of the Committee, reworded, as the last sentence of present § 8) is found in remarks made by Potter on the floor of the Convention during debate pertaining to the section. Delegate Allen McReynolds, a state senator from Carthage, introduced an amendment to the Committee’s recommended § 8. It, in effect, struck out the Committee’s recommended section in its entirety and replaced it with McReynolds’ proposal to the Convention, a proposal that would have conferred the task of classifying and organizing Missouri counties on the Convention itself, rather than on the General Assembly. A debate ensued as to which of the proposed sections was the wiser — McReynolds’ or the Committee’s. Potter (the source of the Committee’s section) rose to offer an amendment to the McReynolds’ amendment. Potter’s amendment was to add the last two sentences of the Committee’s proposed section to McReynolds’ proposal. Why? Potter told the Convention: “Mr. President, the purpose of this amendment is to carry forth in the McReynolds’ substitute the second portion of the Committee’s report of Section 8, which it seems to me is equally as important as the first. I think under the present statutes there are some one hundred and twenty-one classifications of counties for various purposes and I think it would be [a] very wholesome thing if these classifications were reduced and laws were made applicable to the counties more generally than they are at the present time. Not so long ago we found an unusual situation in Greene County. We had no provisions for Assistant Prosecuting Attorneys by virtue of the fact that in the enactment of various Jaws the Legislature had left out a small group of population figures between ninety and nine[ty]-five thousand and counties not having a city of the first class and as a result we were helpless for a short period of time until the Legislature could act and this provision will prevent recurrence of those conditions, and in event the McReynolds’ proposal is adopted will carry forth this very important provision to the new Constitution.” Debates of the Missouri Constitution 1945, pp. 2232-33. It is clear from his remarks that Potter was concerned about laws other than those dealing with the classification and organization of counties. He wanted to be certain that a law, e. g., providing for assistant prosecutors in a certain class of county, would be made applicable to all counties within that class. We are cited to no case, and have found none, which holds explicitly that the last sentence of art. VI, § 8 applies only to laws relating to the organization or classifi [526] cation of counties. See, e. g., State on inf. Taylor v. Kiburz, 357 Mo. 309, 208 S.W.2d 285 (banc 1947); Inter-City Fire Protection Dist. v. Gambrell, 360 Mo. 924, 231 S.W.2d 193 (banc 1950); Collector of Revenue v. Parcels of Land Encumbered with Delinquent Taxes, 362 Mo. 1054, 247 S.W.2d 83 (banc 1952); Chaffin v. County of Christian, supra, 359 S.W.2d 730 (Mo. banc 1962); and State ex rel. Stevenson v. Kirkpatrick, 536 S.W.2d 740 (Mo. banc 1976). We conclude that those portions of § 578.-110 which treat first class counties by area are unconstitutional because they treat the first class counties in the St. Louis area differently from Greene County, the only other first class county not covered by special legislation (/. e., § 578.100.5, dealing with Jackson, Clay, and Platte counties). They violate the last sentence of art. VI, § 8, which requires that a “law applicable to any county shall apply to all counties in the class to which such county belongs.” The question then becomes whether those portions of § 578.110 which are unconstitutional are severable from the rest of § 578.110, or whether all of § 578.110 must fall. If the language which pertains to “area” is excised from § 578.110, what is left is a statute which permits “any * * county” to “exempt itself from the application of section 578.100, by a vote of the qualified voters of the county * * * .” This, of course, would include the City of St. Louis. § 1.080, RSMo 1978. Section 1.140, RSMo 1978 states: “Severability of statute provisions.— The provisions of every statute are sever-able. If any provision of a statute is found by a court of competent jurisdiction to be unconstitutional, the remaining provisions of the statute are valid unless the court finds the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provisions that it cannot be presumed the legislature would have enacted the valid provisions without the void one; or unless the court finds that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.” The same principle was expressed in State ex rel. Audrain County v. Hackmann, 275 Mo. 534, 543, 205 S.W. 12, 14 (banc 1918): “The test of the right to uphold a law, some portions of which may be invalid, is whether or not in so doing, after separating that which is invalid, a law in all respects complete and susceptible of constitutional enforcement is left, which the Legislature would have enacted if it had known that the exscinded portions were invalid.” We hold that after eliminating the “area” method of exemption, “enough remains, which is good, to clearly show the legislative intent, and to furnish sufficient details of a working plan by which that intention may be made effectual * * State ex rel. Harvey v. Wright, 251 Mo. 325, 337, 158 S.W. 823, 826 (banc 1913). We conclude that, after excising those portions invalidated, the remainder of § 578.110 is severable and valid. State ex rel. Enright v. Connett, 475 S.W.2d 78 (Mo. banc 1972). The judgment is reversed and the cause remanded. BARDGETT, C. J., and WELLIVER, MORGAN and HIGGINS, JJ., concur. RENDLEN, J., dissents in separate dissenting opinion filed. SEILER, J., dissents and concurs in separate dissenting opinion of RENDLEN, J.