Opinion No. 67-80 (1980) ( 1980 )

Dear Mr. Wilson:

This is in response to your request for an official opinion of this office concerning the question of whether the reference to "primary and general election" in Senate Bill 192, 80th General Assembly, refers only to the biennial August primary and November general election or whether it refers to any primary or general election day of any state, county, municipality, school district or special district.

Senate Bill No. 192 which became effective on January 1, 1980, amended §§ 311.290 and 311.480, RSMo 1978. These amended sections are now in the 1979 Supplement to the Revised statutes of Missouri. Prior to the passage of this bill, the relevant language of these statutes provided as follows:

Section 311.290, RSMo 1978, provided as follows:

No person having a license under this law nor any employee of such person shall sell, give away or otherwise dispose of, or suffer the same to be done upon or about his premises, any intoxicating liquor in any quantity between the hours of 1:30 a.m. and 6:00 a.m. on weekdays and between the hours of 1:30 a.m. Sunday and 6:00 a.m. Monday, or after 1:30 a.m. upon the day of any general, special or primary election in this state at which candidates for public office are elected or nominated or after 1:30 a.m. upon the day of any county, township, city, town or municipal election at which candidates for public office are elected or nominated, and if said person has a license to sell intoxicating liquor by the drink, his premises shall be and remain a closed place as defined in this section after 1:30 a.m. upon the day of any general, special or primary election in this state at which candidates for public office are to be elected or nominated or after 1:30 a.m. upon the day of any county, township, city, town or municipal election at which candidates for public office are to be elected or nominated and between the hours of 1:30 a.m. and 6:00 a.m. on weekdays and between the hours of 1:30 a.m. Sunday and 6:00 a.m. Monday; except that the sale of intoxicating liquor may be resumed and the premises reopened on any such election day after the expiration of thirty minutes next following the hour of time fixed by law for the closing of the polls at any such election. Where such licenses authorizing the sale of intoxicating liquor by the drink are held by clubs or hotels, this section shall apply only to the room or rooms in which intoxicating liquor is dispensed; and where such licenses are held by restaurants whose business is conducted in one room only and substantial quantities of food and merchandise other than intoxicating liquors are dispensed, then the licensee shall keep securely locked during the hours and on the days herein specified all refrigerators, cabinets, cases, boxes and taps from which intoxicating liquor is dispensed. A `closed place' is defined to mean a place where all doors are locked and where no patrons are in the place or about the premises. Any person violating any provision of this section shall be deemed guilty of a misdemeanor. (Emphasis added).

Section 311.480, RSMo 1978, provided as follows:

1. It shall be unlawful for any person operating any premises where food, beverages or entertainment are sold or provided for compensation, who does not possess a license for the sale of intoxicating liquor, to permit the drinking or consumption of intoxicating liquor in, on or about said premises between 10:00 p.m. and 6:00 a.m. the following day, without having a license as in this section provided.

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3. The drinking or consumption of intoxicating liquor shall not be permitted in, upon or about the licensed premises by any person under twenty-one years of age, or by any other person between the hours of 1:30 a.m. and 6:00 a.m. on any week day, and between the hours of 12:00 midnight Saturday and 12:00 midnight Sunday, or on the day of any general, special, or primary election in this state, or upon any county, township, city, town, or municipal election day during the hours the polls are legally open. Licenses issued hereunder shall be conditioned upon the observance of the provisions of this section and the regulations promulgated thereunder governing the conduct of premises licensed for the sale of intoxicating liquor by the drink. The provision of this section regulating the drinking or consumption of intoxicating liquor between certain hours and on election day and Sunday shall apply also to premises licensed under this chapter to sell intoxicating liquor by the drink. In any incorporated city having a population of more than twenty thousand inhabitants, the board of aldermen, city council or other proper authorities of incorporated cities may, in addition to the license fee herein required, require a license not exceeding three hundred dollars per annum, payable to said incorporated cities, and provide for the collection thereof; make and enforce ordinances regulating the hours of consumption of intoxicating liquors on premises licensed hereunder, not inconsistent with the other provisions of this law, and provide penalties for the violation thereof. No person shall be granted a license hereunder unless such person is of good moral character and a qualified legal voter and a taxpaying citizen of the county, town, city or village, nor shall any corporation be granted a license thereunder unless the managing officer of such corporation is of good moral character and a qualified legal voter and taxpaying citizen of the county, town, city or village.

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One of the effects of these amendments was to remove the language in the above statutes concerning "the day of any county, township, city, town or municipal election" and "the day of any . . . special . . . election." The relevant language of these statutes now provides as follows:

Section 311.290, RSMo Supp. 1979, provides as follows:

No person having a license under this law, nor any employee of such person, shall sell, give away or otherwise dispose of, or suffer the same to be done upon or about his premises, any intoxicating liquor in any quantity between the hours of 1:30 a.m. and 6:00 a.m. on weekdays and between the hours of 1:30 a.m. Sunday and 6:00 a.m. Monday, or after 1:30 a.m. upon the day of any general or primary election in this state at which candidates for public office are elected or nominated. If the person has a license to sell intoxicating liquor by the drink, his premises shall be and remain a closed place as defined in this section after 1:30 a.m. upon the day of any general or primary election in this state at which candidates for public office are to be elected or nominated and between the hours of 1:30 a.m. and 6:00 a.m. on weekdays and between the hours of 1:30 a.m. Sunday and 6:00 a.m. Monday; except that the sale of intoxicating liquor may be resumed and the premises reopened on any general or primary election day after the expiration of thirty minutes next following the hour or time fixed by law for the closing of the polls at any such election. Where such licenses authorizing the sale of intoxicating liquor by the drink are held by clubs or hotels, this section shall apply only to the room or rooms in which intoxicating liquor is dispensed; and where such licenses are held by restaurants whose business is conducted in one room only and substantial quantities of food and merchandise other than intoxicating liquors are dispensed, then the licensee shall keep securely locked during the hours and on the days specified in this section all refrigerators, cabinets, cases, boxes and taps from which intoxicating liquor is dispensed. A `closed place' is defined to mean a place where all doors are locked and where no patrons are in the place or about the premises. Any person violating any provision of this section shall be deemed guilty of a class A misdemeanor. Nothing in this section shall be construed to prohibit the sale or delivery of any intoxicating liquor during any of the hours or on any of the days specified in this section by a wholesaler licensed under the provisions of section 311.180 to a person licensed to sell the intoxicating liquor at retail. (Emphasis added.)

Section 311.480, RSMo Supp. 1979, provides as follows:

1. It shall be unlawful for any person operating any premises where food, beverages or entertainment are sold or provided for compensation, who does not possess a license for the sale of intoxicating liquor, to permit the drinking or consumption of intoxicating liquor in, on, or about the premises between 10:00 p.m. and 6:00 a.m. the following day, without having a license as in this section provided.

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3. The drinking or consumption of intoxicating liquor shall not be permitted in, upon, or about the licensed premises by any person under twenty-one years of age, or by any other person between the hours of 1:30 a.m. and 6:00 a.m. on any weekday, and between the hours of 12:00 midnight Saturday and 12:00 midnight Sunday, or on the day of any general or primary election in this state during the hours the polls are legally open. Licenses issued hereunder shall be conditioned upon the observance of the provisions of this section and the regulations promulgated thereunder governing the conduct of premises licensed for the sale of intoxicating liquor by the drink. The provision of this section regulating the drinking or consumption of intoxicating liquor between certain hours and on election day and Sunday shall apply also to premises licensed under this chapter to sell intoxicating liquor by the drink. In any incorporated city having a population of more than twenty thousand inhabitants, the board of aldermen, city council, or other proper authorities of incorporated cities may, in addition to the license fee required in this section, require a license not exceeding three hundred dollars per annum, payable to the incorporated cities, and provide for the collection thereof; make and enforce ordinances regulating the hours of consumption of intoxicating liquors on premises licensed hereunder, not inconsistent with the other provisions of this law, and provide penalties for the violation thereof. No person shall be granted a license hereunder unless such person is of good moral character and a qualified legal voter and a taxpaying citizen of the county, town, city or village, nor shall any corporation be granted a license hereunder unless the managing officer of such corporation is of good moral character and a qualified legal voter and taxpaying citizen of the county, town, city or village. (Emphasis added).

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The dates of the general and primary election days in Missouri are set forth in § 115.121, RSMo 1978, which provides as follows:

1. The general election day shall be the first Tuesday after the first Monday in November of even-numbered years.

2. The primary election day shall be the first Tuesday after the first Monday in August of even-numbered years.

3. The election day for the election of political subdivision and special district officers shall be the first Tuesday in April each year; and shall be known as `municipal election day'.

It is possible by reading §§ 311.290 and 311.480, as amended, to arrive at the conclusion that the general or primary elections as stated therein would apply to any county, township, city, town or municipal elections. However, when these statutes are read in light of the wording of the statutes prior to the amendment, it is clear that the primary or general election day as stated therein refers to the primary or general election as provided in § 115.121, RSMo 1978. Moreover, pursuant to Paragraph 3 of § 115.121, RSMo 1978, the election days of political subdivisions and special district officers are specifically referred to as "municipal election day" thus distinguishing such dates from the primary and general election dates set forth in Paragraph 1 and 2. In arriving at this conclusion, we note that the courts of this state have long followed the rule of construction that the legislature by amending a statute will be presumed not to have intended a needless or useless act. State v. Mosman, 315 S.W.2d 209,211 (1958); Darrah v. Foster, 355 S.W.2d 24, 30 (1962);Protection Mutual Insurance Co. v. Kansas City, 504 S.W.2d 127,132 (1974).

As stated in Wright v. J. A. Tobin Construction Co.,365 S.W.2d 742, 744 (Mo.App., K.C. 1963):

In ascertaining the legislative intent as expressed in a statute courts are aided by certain well established rules. One such rule is that in the construction of statutes it is presumed that the legislature is aware of the interpretation of existing statutes placed thereon by the states' appellate courts, and that in amending a statute or enacting a new one on the same subject it is ordinarily the intent of the legislature to effect some change in the existing law. If this were not so the legislature in amending a statute would be accomplishing nothing, and legislatures are not presumed to have intended a needless and useless act. . . .

Thus, it is apparent that the effect of these amendments is to prohibit licensed liquor establishments from dispensing liquor during certain hours on primary and general election days as defined in § 115.121, RSMo 1978.

It should be noted that this conclusion does not reflect any opinion on the validity of city ordinances requiring licensed liquor establishments to remain closed on dates other than those set forth in §§ 311.290 or 311.480, RSMo 1978, as amended.

CONCLUSION

It is the opinion of this office that Missouri statutes prohibit licensed liquor establishments from dispensing liquor during certain hours on the primary election day, the first Tuesday after the first Monday in August of even-numbered years, and the general election day, the first Tuesday after the first Monday in November of even-numbered years.

The foregoing opinion, which I hereby approve, was prepared by my Assistant, Cary Augustine.

Very truly yours,

JOHN ASHCROFT Attorney General