The opinion of the court was delivered by
This is an appeal by the state from an order of the district court of Lyon County, Kansas, discharging the defendant, Ronnie Hill. The information charged that on July 30, 1961, the defendant, the assistant manager of the Safeway Store at Emporia, did unlawfully and willfully expose to sale and did sell certain merchandise, to-wit: Three packs of Chiclets chewing gum, one box of Blue Cheer soap, and one can of Dash dog food, on the first day of the week, commonly called Sunday, the said merchandise not being within the exemption of G.S. 1949, 21-956, contrary to law. (G.S. 1949, 21-955.)
On August 10, 1961, the defendant appeared in person and with counsel and entered a plea of not guilty. The state and the defendant entered into a written statement of fact which was agreed to, and a jury being waived, trial was by the court. Thereafter the defendant filed a motion to quash the information, the ruling on which was reserved by the court until the completion of argument by counsel. The defendant also filed a motion to dismiss the information and to discharge him on the grounds that G.S. 1949, 21-955, on which the information was based, when construed with G.S. 1949, 21-956, is so vague, indefinite and uncertain that he was unable to ascertain what was or was not permitted to be sold under the statute in violation of rights granted him under sections one and ten of the bill of rights of the constitution of Kansas and the fifth (sic) amendment to the constitution of the United States.
At the conclusion of the argument the district court overruled the defendant's motion to quash the information, but sustained his motion to be discharged. In rendering judgment the court filed a written memorandum opinion in which it concluded that "the exception to the statute in question contains words that are so general, vague and indefinite that individuals charged with administering this penal statute are unable to determine the meaning of the same. The statute is declared inoperative and void.... Defendant is discharged." The state timely appealed, having reserved the question. (G.S. 1949, 62-1703, third.)
The crux of the appeal is the validity of G.S. 1949, 21-955 and
As preliminary to discussing those questions we note briefly the historical background of the sections directly involved. They were originally enacted in 1855 (L. 1855, Ch. 53, Sec. 34 and Sec. 35) by the so-called "bogus legislature" and were taken bodily from the Missouri statute, where they were originally enacted in 1825, and, with some amendments, continue to be the law of that state. When enacted in 1855 they read:
The sections were repealed by the Territorial Legislature of 1859 (Ch. 89, Sec. 1, General Laws of Territory of Kansas, 1859) and were re-enacted at that session (Ch. 28, Sec. 248 and Sec. 249). They were embodied in our General Statutes of 1868 in Chapter 31, Sections 258 and 259 relating to crimes and punishments. They remained unchanged and were included in all of the subsequent general statutes of the state until the Commission to Revise the General Statutes of 1923 revised the first section (21-955) by eliminating reference to intoxicating liquors which were covered by other laws, but the second section (21-956) was not changed. As revised, they were embodied in the Revised Statutes of 1923. The sections appear in the General Statutes of 1949 and read:
In support of its contention the district court erred in discharging
The defendant strenuously argues the two sections must be construed as one statute to determine whether an offense has been committed; that while 21-956 excepts certain articles enumerated in 21-955, it has precisely the same meaning as if it were appropriately incorporated in that section; that as so construed, the statute is vague and indefinite and no adequate practical meaning can be found for the phrase "or other articles of immediate necessity" because the word "necessity" as used, is flexible, relative and impossible to define and has no reference to any objective standards; consequently, the statute fails to inform those subject to its provisions of the nature and cause of the accusation against them; it fails to inform enforcement agencies of a standard by which they can reasonably ascertain if there has been a breach of the law, and delegates to judges and juries the right to determine what activities are or are not proscribed in violation of sections one and ten of the bill of rights of the constitution of Kansas and the due process clause of the fourteenth amendment to the constitution of the United States.
In considering the contentions of the parties, we are mindful of the rule that the constitutionality of a statute is presumed and that all doubts must be resolved in favor of its validity, and before it may be stricken down it must clearly appear it violates the defendant's rights secured by the fundamental law. (State, ex rel., v.
Before reaching the merits of the appeal, two points raised require attention. It is urged that the decision of the supreme court of Missouri in the recent case of State v. Katz Drug Co., 352 S.W.2d 678, sustaining the constitutionality of its statute which Kansas originally adopted in 1855, is controlling, and compels a reversal. It is urged that the rule of construction that a statute adopted from another state will be presumed to have been adopted with the construction placed on it by the courts of that state, is applicable. In
This court has recognized and applied the rule that a statute adopted from another state carries with it the construction placed upon it by the courts of that state (Bemis v. Becker, 1 Kan. 226; Stebbins v. Guthrie, 4 Kan. 353; Webb v. Comm'rs of Butler Co., 52 Kan. 375, 34 Pac. 973; Nelson v. Stull, 65 Kan. 585, 68 Pac. 617, 70 Pac. 590; McHenry v. Hubbard, 156 Kan. 415, 420, 134 P.2d 1107), but the rule is not absolute and is subject to exceptions. One exception is that the construction of a statute by the highest court of the original state after it is adopted by another has no controlling effect on the adopting state, although it may be persuasive where it is supported by logic and good reasoning. (82 C.J.S., Statutes, § 373 b, p. 867; State v. O'Donnell, 116 Kan. 182, 185, 225 Pac. 1078; McHenry v. Hubbard, supra.) But another and compelling reason exists why the rule has no application here. The argument in support of it presumes a doctrine which, if followed, would substitute the supreme court of Missouri as a tribunal to determine the grave question whether the statute contravenes the constitution of Kansas in place of the supreme court of this state. The construction of a statute, the function of a court to ascertain a statute's scope and meaning, is not to be confused with the duty of determining its validity when measured by constitutional guarantees. (14 Am. Jur., Courts, § 86, p. 300; Williams v. State, 81 N.H. 341, 125 A. 661, 39 A.L.R. 490; Boyd v. Ritter L. Co., 119 Va. 348, 89 S.E. 273, 275, L.R.A. 1917A, 94.)
It is also urged that since the statute is over a century old and that the Kansas courts have been able to judicially apply it over that period is convincing and persuasive proof of its validity. It is true that previous decisions have been rendered in criminal cases involving the application of the statute, but, as previously noted, the state concedes it has not heretofore been challenged on the constitutional grounds presently urged. Courts are loath to hold statutes to be unconstitutional, and this court has repeatedly held that there is time enough for it to pass upon the validity of a statute when its constitutionality is raised by one who claims injury by it. No doubt if the constitutional questions here raised had been previously presented to this court or specifically pointed out, the issues would have
We turn now to the contentions of the parties, and first determine the merits of the state's contention that 21-956 is a separate and independent statute. As previously indicated, it contends that, inasmuch as 21-956 is merely defensive and an independent statute, the constitutionality of it should have no effect on 21-955. We do not agree. The fundamental rule of construction is to ascertain the intention of the lawmakers in order that the true meaning of the legislature may be determined. To accomplish that purpose all parts of the act relating to the subject should be considered together. (50 Am. Jur., Statutes, § 352, p. 350.) By providing that 21-955 shall not be constructed to prevent the sale of any drugs or medicines, provisions, or other articles of immediate necessity, 21-956 is an exception to the former section. (State v. Blair, supra, p. 866.) The office of an exception in a statute is well understood. It is intended to exempt something from the scope of the general words of a statute or to qualify or restrain the generality of the substantive enactment to which it is attached. The relative position of an exception is unimportant since the act must be construed as a whole. It may, as here, appear in a section by itself, and when that is done it has precisely the same meaning that it would have if the exception were appropriately incorporated in the other section. (50 Am. Jur., Statutes, § 431, p. 451.) We conclude that 21-956 is not merely defensive as the state contends, but constitutes an integral part of the offense defined. As thus construed, the burden rests upon the state to allege and prove that the articles sold or exposed to sale on Sunday were of the kind and character included in the statute's prohibition and were not those excepted.
Is the statute indefinite, uncertain and void for vagueness? Does it lack, as the defendant contends, ascertainable standards of guilt by establishing what persons are included or what acts are prohibited by its provisions in violation of section ten of our bill of rights and the due process clause of the fourteenth amendment? It is well recognized that in order to satisfy the constitutional requirements of due process, a state statute must be sufficiently explicit in its description
In State v. Blaser, 138 Kan. 447, 26 P.2d 593, which quoted from and followed Connally v. General Const. Co., 269 U.S. 385, 70 L.Ed. 322, 46 S.Ct. 126, it was said:
That holding was adhered to in State v. Rogers, 142 Kan. 841, 52 P.2d 1185; State v. Carr, 151 Kan. 36, 37, 98 P.2d 393; State v. Davidson, 152 Kan. 460, 461, 105 P.2d 876; State v. Ashton, 175 Kan. 164, 262 P.2d 123, and State, ex rel., v. Fleming Co., 184 Kan. 674, 682, 339 P.2d 12. See, also, State v. O'Connor, 186 Kan. 718, 353 P.2d 214.
Section ten of our bill of rights provides that "In all prosecutions, the accused shall be allowed ... to demand the nature and cause of the accusation against him." The language of the section is similar to language contained in the sixth amendment to the constitution
The statute before us is dragnet in scope but is limited in application by exceptions. It defines the offense proscribed by exclusion rather than by inclusion, and makes Sunday sales both lawful and unlawful, that is, it prohibits the sale or exposure to sale of all goods, wares and merchandise, but authorizes property of three general classifications — drugs or medicines, provisions, or other articles of immediate necessity — to be sold or exposed to sale with impunity. The gist of the offense is the sale or exposure to sale of property not excepted. In that posture the statute is vague and indefinite unless a line can be found which separates with reasonable certainty the lawful from the unlawful, and the only criterion afforded lies in the definition of the property excepted. The line separating the two must be definite and extend to each of the three classes of property excepted; its existence to one or two is insufficient. Notwithstanding what has heretofore been said and held to the contrary, it is obvious that each class of property excepted was intended to mean articles of property not included in the other, that is, "provisions" means something other than "drugs or medicines" and the phrase "or other articles of immediate necessity" means something other than "drugs or medicines" and "provisions." To give the statute any other meaning would require a strained construction of it, not warranted by its express language.
As to the claim of vagueness, we are not troubled by the term
While the line of demarcation between the valid exercise of police power and constitutional guarantees is not always well defined, and courts must accord to the legislature a wide range of power to classify and delineate in declaring the public policy of the state, we cannot consent to the legislative invasion of constitutional guarantees to the extent here evidenced. Although the sale of goods on Sunday constituted an offense under the common law, and it is well settled that not every uncertainty which may exist in the operation or application of a criminal statute renders it void (State v. Ashton, supra), nonetheless, we are of the opinion the statute here considered (G.S. 1949, 21-955 and 21-956) is so vague, indefinite and uncertain that it fails to inform men of common intelligence what conduct on their part will render them liable to its penalties; that they must guess at its meaning and differ as to its application, and that it provides no reasonable definite standard of guilt which apprises them of the nature and cause of the accusation against them in violation of section ten of the bill of rights of the constitution of Kansas, and the fourteenth amendment to the constitution of the United States which provides that no state shall deprive any person of life, liberty or property without due process of law.
The state concedes that if the defendant's challenge of the statute is sustained, it is unnecessary to determine whether the district court erred in discharging him for any other reason. In view of the conclusion just announced, the district court did not err in declaring the statute inoperative and void and discharging the defendant.
The judgment is affirmed.