State ex rel. McNary v. Levitz Furniture Co. of Missouri
State ex rel. McNary v. Levitz Furniture Co. of Missouri
Opinion of the Court
Defendants appeal from a judgment permanently enjoining them from violating the provisions of Section 563.721, RSMo 1969 (V.A.M.S.), the Sunday Sales Act.
The court found that defendants did not sell merchandise on Sunday but that they did “engage on Sunday in the business of selling goods, wares and merchandise . . . ” and “offer for sale on such day (Sunday), goods, wares and merchandise . . . ” in violation of Section 563.721, RSMo 1969 (V.A.M.S.).
There is admittedly a certain amount of ambiguity in the phrase “engages on Sunday in the business of selling”.
Although such a construction is possible, we do not find it proper. We are dealing with a criminal statute which must be strictly construed. We further must ascertain the legislative intent, if possible. To do so, it is not necessary to look further than paragraph 2 of the statute which provides that “Each separate sale or offer to sell . . . (emphasis supplied) constitutes a separate offense. If the construction heretofore discussed was intended and if business acts other than selling were intended to be proscribed, then the word “act” presumably would have been included in that paragraph. Reviewing the statute as a whole, we are left with the inescapable conclusion that the statute is intended to prevent the actual selling of proscribed items on Sunday. We note that the Supreme Court, although not confronted with the precise issue involved here, apparently arrived at the same conclusion in State ex rel. Eagleton v. McQueen, 378 S.W.2d 449, 1. c. 454 (Mo.Banc. 1964) wherein it stated: “The Sunday Sales Act does not require stores to close on Sunday, only that they do not sell merchandise of the forbidden kind on that day.”
The language “or offers for sale on such day” also refers to a sale to be made on Sunday. The “on such day” language we find modifies “sale” not “offers”. The phrase was added to obviate the need of proving a completed sale where it is clear the seller is offering to make the sale on the proscribed day if given the opportunity.
Having concluded that the statute is aimed at selling on Sunday we must conclude on the record before us that defendants have not violated the statute and should not have been enjoined.
The State urges that in addition to the grounds advanced by the trial court, the injunction can be supported because defendants exposed merchandise for sale. We are unable to conclude that exposure for sale is an additional violation of the statute. By the express language of paragraph 4 of the statute exposure for sale “in violation of this section” is declared a nuisance. But paragraph 1 contains the violation provisions and we interpret the statute to require one of the three acts contained in that paragraph before a violation occurs. For exposure to warrant an injunction, there must be an illegal act under paragraph 1.
Additionally, exposure alone is not what is referred to in paragraph 4. There must be exposure “for sale”. The State does not contend that the exposure of restricted items in a store which is legally selling non-restricted items would be a violation'. Presumably, if defendants added a counter to sell bread, the exposure of their furniture line would not be illegal. We do not believe the legislature intended any such result. The statute is directed at sales on Sunday and the evidence here does not show that defendants sold merchandise on Sunday or intended to do so.
The judgment is reversed, the permanent injunction is dissolved and the cause remanded for dismissal of respondent’s petition.
. That section provides as follows:
“563.721 Selling goods on Sunday — penalties. 1. 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 and shall upon conviction for the first offense be sentenced to pay a fine of not exceeding one hundred dollars, and for the second or any subsequent offense be sentenced to pay a fine of not exceeding two hundred dollars or undergo confinement not exceeding thirty days in the county jail in default thereof.
2. Each separate sale or offer to sell shall constitute a separate offense. .
4. The operation of any place of business where any goods, wares or merchandise are sold or exposed for sale in violation of this section is hereby declared to be a public and common nuisance.”
. We note in passing that ambiguity in Sunday sale laws did not originate with this particular statute. See Harvey v. Priest, 366 S.W.2d 324 (Mo.Banc. 1963) ; State v. Katz Drug Co., 352 S.W.2d 678 (Mo.Banc. 1961).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.