Gramex Corp. v. Von Romer

RENDLEN, Judge,

dissenting.

The majority holds that § 578.110, RSMo Supp.1979, which creates an artificial polity locking three counties and our largest city into the single voting block or “area,” violates art. VI, § 8, Mo.Const. With this I concur. However, the majority also concludes that those provisions of the statute, not excised as unconstitutional, are severa-ble and remain standing. With this I do not agree and must respectfully dissent for the reason that the remaining portions of the act provide a scheme of Blue Law exemption in direct contradiction to the ex*527pressed intent of the legislature, hence the statute must fall.

The starting point of this analysis calls for examination of the legislative history of the “Blue Law” ban in Missouri. Blue Law legislation has been a part of Missouri law since before the inception of statehood and can be found in our statutes beginning with the territorial acts of 1814. See Act, January 8, 1814, 1 Terr.L., chpt. 102 § 1. This ban has been carried forward in various forms by ensuing legislative enactments to this date.1

In 1977 the legislature allowed three counties (Jackson, Clay, and Platte) to individually exempt themselves by local election from the Blue Law prohibition. See Laws of Mo.1977, p. 725 (now codified as § 578.100, RSMo 1978). Pursuant to that authorization, the electorates of Jackson (1977), Clay (1977), and Platte Counties (1977) opted to exempt their counties. See Revisor’s note, § 578.100, RSMo 1978.

The legislature, in 1978, extended the exemption authorization to, “any county of the second class as of 1977 that is adjacent to any county containing a portion of a city with the population of more than 400,000” if the county containing the major portion of a city over 400,000 voted for exemption. See Laws of Mo.1978, p. 787 (now codified as § 578.105, RSMo 1978.) Under this legislative authorization the electorates of Buchanan County (1978) and Cass County (1978) each voted to exempt their respective counties from Blue Law coverage.

In 1979 the legislature by enactment of H.B. 56 (codified as § 578.110, RSMo 1979— the subject of this appeal) extended exemption authorization to every county in the state by allowing the voters of those counties not covered by § 578.100 and § 578.105 to exempt themselves on a county by county basis. There was however an exception driven into the heart of the statute. The City of St. Louis and the counties of St. Louis, Jefferson, and St. Charles were not permitted the freedom of the other counties but instead were confined to a package or “area.” A majority of voters in the combined city and counties was required to exercise the exemption in the statutory “area.” See Laws of Mo.1978, p. 987 (approved April 25,1978, effective date August 13, 1978.)2

This sketch of Blue Law history reveals two facets of legislative intent with respect to the challenged statute. First: the legislature, with apparent reluctance, has allowed exemption from the long standing public policy that certain items may not be sold on Sunday, to proceed only incrementally or step by step. Second: the legislature has displayed special concern for St. Louis and certain surrounding counties when fashioning § 578.110’s area exemption provisions. The legislature apparently perceived unique attributes in the St. Louis area market necessitating that Blue Law exemption be permitted there only on an area wide basis. Perhaps the legislature feared that in such a large yet integrated market,3 the effects of Blue Law exemption would splash beyond city or county lines impairing the economic or Sabbatarian interests of the residents of adjoining included counties. Whatever the motivation, the legislature’s intent is unmistakable that voters in the block could only exempt themselves from Blue Law coverage by majority vote in the entire area. See § 578.110.2, RSMo Supp.1979. An additional feature of the statute, manifesting the special legislative concern as to St. Louis City and St. Charles, Jefferson and St. Louis Counties is the provision that this area exemption vote could be triggered only by petition signed *528by a number of voters equal to 8% of votes cast in the next preceding gubernatorial election in the area. See § 578.110.3, RSMo Supp.1979.

Under the majority’s holding that the act’s remaining provisions are severable from those declared unconstitutional, the City of St. Louis and the counties of St. Louis, St. Charles and Jefferson will be stripped of the legislatively intended area protection or burden (depending on one’s policy preference) and can proceed on a county by county basis though the legislature explicitly mandated an area wide vote for those counties. Such result, in direct derogation of the legislature’s expressed intent requires the act be held non-severable. Particularly is this true under the strict severability standard adopted in Labor’s Education and Political Club-Independent v. Danforth, 561 S.W.2d 339, 350 (Mo. banc 1977) (hereinafter LEPCI), this Court’s most recent decision on the subject.

As in LEPCI, where the Campaign Finance and Disclosure Act was struck down, the definitional section of this statute must certainly be invalidated. See § 578.110.1, RSMo Supp.1979.4 The majority here states, “those portions of § 578.110 which treat first class counties by area are unconstitutional . .” 603 S.W.2d at 526. Hence the definitions of both area and county contained in § 578.110.1 must be stricken as each is premised upon the constitutionally defective concept of “area.” Here following is the full text of § 578.110 with the portions effectively excised by the majority underlined and bracketed:

578.110. Counties may be exempted from provisions of § 578.100, procedure.— [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.]
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.]
3. In order to exempt itself from the provisions of section 578.100, the county [or area] shall submit the proposition to the voters of the county [or area ] at any election, and the proposition shall receive a majority of the votes cast. The proposition to exempt the county from the provisions of section 578.100, shall be submitted to the voters of the county upon a majority vote of the governing body of the county or when a petition requesting the submission of the proposition to the voters and signed by a number of registered voters residing in the county equal to eight percent of the votes cast in the county in the next preceding gubernatorial election is filed with the governing body of the county. [When a petition signed by a number of registered voters residing in the area equal to eight percent of the votes cast in the area in the *529next preceding gubernatorial election requesting the submission of a proposition to exempt the area from the provisions of section 578.100, is filed with each of the governing bodies of the area, the proposition shall be submitted to the voters of the area.] The ballot of submission shall contain, but need not be limited to, the following language:
To exempt . . . county [or the area consisting of . . city and . counties] from the Sunday sales law.
_Yes _ No
If a majority of the votes cast on the proposal by the registered voters voting thereon in the county [or area] are in favor of the proposal, then the provisions of section 578.100, shall no longer apply within that county [or area ]. If a majority of the votes cast on the proposal by the registered voters voting thereon in the county [or area] are opposed to the proposal, then the provisions of section 578.100, shall continue to apply and be enforced within that county [or area.] The exemption of the county [or area] from the provisions of section 578.100, shall not become effective in that county [or area] until the results of the vote exempting the county [or area] have been filed with the secretary of state and with the revisor of statutes and have been certified as received by those officers. The revisor of statutes shall note which counties [or areas] are exempt from the provisions of section 578.100, in the Missouri revised statutes.

After removal of those portions invalidated by the principal opinion, § 578.110.2 will read in relevant part:

“In addition to the counties which may exempt themselves from the application of § 578.100 under the provisions of § 578.100 or § 578.105, any other county . may also exempt itself from the application of § 578.100, by a vote of the qualified voters of the county . .

Consequently § 578.110 as now altered by the Court permits the voters of St. Louis City, St. Louis County, St. Charles and Jefferson Counties to exempt themselves on a county by county basis. This result stands squarely athwart the Blue Law exemption process intended for the city and the designated St. Louis area counties, for as noted above, the legislature explicitly rejected such result when fashioning the statutory “area” provisions. Moreover, from the following events I perceive an additional expression of this legislative intent. During the 80th General Assembly, a scheme was introduced to permit such individual voting arrangement for St. Louis City and the surrounding counties. This scheme contained in H.B. 55 (a companion bill to H.B. 56, now RSMo § 578.110) failed in committee.5 This failure, followed by the adoption of H.B. 56 bespeaks the unequivocal intent that the city and counties could not individually exempt themselves from the Blue Laws but could do so only by “area ” vote. Thus while it might be said the remaining provisions of § 578.110 (H.B. 56) constitute a “working scheme,” that scheme not only failed in passage but was effectively repudiated by the final enactment of H.B. 56. I cannot believe this Court is vested under any accepted doctrine of “severability” with the authority to reshape the statutes contrary to the express intention of the legislature, much less to allow the remains of § 578.110 to stand under the view of sever-ability taken by this Court in LEPCI.

Prior to LEPCI v. Danforth, Id., Missouri followed a widely accepted and moderate doctrine of severability aimed toward salvaging viable portions of a statute, after partial constitutional extirpation, when the remaining portions contained a workable statutory scheme, consistent with the legis*530lative intent and which could reasonably be said to effectuate that intent. In LEPCI this Court adopted a harsh uncompromising view of severability and struck down the remaining portions of the Campaign Finance and Disclosure Act adopted by the voters in the 1974 Initiative Election. That act contained a comprehensive and detailed scheme for election reform in Missouri. While LEPCI invalidated, for constitutional reasons, the expenditure limits and provisions relating to disclosure of sources of private income, four of the principal features of the act remained,6 each possessed of independent vitality and susceptible to enforcement in accordance with the intentions of the electorate. Also the Act contained an express severability clause manifesting the legislative (people’s) intent to save the remaining parts.7 Thus in spite of the command of § 1.140, RSMo 1978,8 and the presence of a strong severability clause, the viable portion of the Act9 was stricken as nonseverable.

Here, the vestige of the Act (which has no saving severability clause) would absolutely transmute the legislative intent, hence under the doctrine of LEPCI that part of the statute left standing cannot be deemed lawfully severable. For these reasons I would declare the statute invalid and remand the cause with directions to the trial court to enter a declaratory judgment as prayed and for appropriate injunctive relief.

. See Laws of Mo. 1963, p. 685; § 4742 RSMo 1939; § 4351 RSMo 1929; § 3599 RSMo 1919; § 4804 RSMo 1909; § 2243 RSMo 1899; § 3855 RSMo 1889; § 1581 RSMo 1879; chpt. 206 § 35 GSMo 1865; p. 209 § 31 RSMo 1835; Laws of Mo. 1825, p. 311 § 92; Act Jan. 8, 1814, 1 Terr.L., chpt. 102 § 1.

. The voters of Boone, Lafayette, Marion, Ralls, and Saline Counties voted to exempt themselves from Blue Law coverage pursuant to this provision on a county by county basis. See Revisor’s note, § 578.110, RSMo Supp.1979.

. This “area” contains 1,772,458 people or approximately 38% of Missouri’s 4,672,983 million people according to 1970 census figures.

. The definitional section of § 578.110 is found in subsection 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.

. At the same time H.B. 56 (later § 578.110) was introduced, H.B. 55 was introduced. House Journal, 80th Gen. Assy., 1st Sess. 52 (1979). This bill would have permitted the people of “[a]ny county of this state” to vote for exemption from § 578.100. H.B. 55 was referred to the Committee on Local Government and related matters on January 9, 1979, and the Committee failed to take any further action effectively killing the bill. Id. at 172. That same Committee recommended that H.B. 56 be passed. Id. at 370. After several amendments H.B. 56 became what is now codified as § 578.110.

. The remaining portions of the Act which included a vast majority of its provisions included the following valid features of the Act: Feature 1, STRICT ACCOUNTING PRACTICES REQUIRED OF CANDIDATES & COMMITTEES; Feature 2, CANDIDATES AND COMMITTEES REQUIRED TO PUBLICLY DISCLOSE AND REPORT CONTRIBUTIONS AND EXPENDITURES WITH SPECIAL PROVISIONS FOR TIME FOR FILING REPORTS; Feature 3, PROHIBITIONS AGAINST CORPORATIONS, UNIONS, TRUST COMPANIES AND BANKS CONTRIBUTING DIRECTLY OR INDIRECTLY TO ANY CANDIDATE; and Feature 4, ESTABLISHMENT OF THE “MISSOURI ELECTIONS COMMISSION” WITH STATEWIDE AUTHORITY AND RULE MAKING POWERS.

. The presence or absence of an express sever-ability clause in the terms of a legislative enactment is an important factor in determining legislative intent. See Florida Realty, Inc. v. Kirkpatrick, 509 S.W.2d 114, 119 (Mo.1974). This rule may have been discarded or rendered lifeless by LEPCI v. Danforth, 561 S.W.2d 329, 350 (Mo. banc 1977).

. Section 1.140, RSMo 1978, provides:

The provisions of every statute are severable. 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 provision 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.

. Quantitatively 122 of 140 sections of the Campaign Finance and Disclosure Act remained. These constituted 85% of the Act.