author: DONNELLY, Justice. STORCKMAN, Chief Justice FINCH, Judge HYDE, Judge PER CURIAM:

text:
    CITY OF KIRKWOOD, a Municipal Corporation, Respondent, v. Leslie L. ALLEN et al., Appellants.
    No. 49920.
    Supreme Court of Missouri, En Banc.
    Jan. 10, 1966.
    Rehearing Denied Feb. 14, 1966.

      John R. Barsanti, Jr., Ramon J. Morgan-stern, Husch, Eppenberger, Donohue, Elson & Cornfeld (formerly Husch, Eppenberger, Donohue, Elson & Jones), St. Louis, for plaintiff-respondent, City of Kirkwood.
    Norman C. Parker, St. Louis County Counselor, Lawrence J. Bannes, Asst. County Counselor, William J. Becker, Clayton, for certain appellants.
    Morton I. Golder, Asst. County Counselor, Clayton, for appellant St. Louis County.
    Greensfelder, Hemker & Wiese, Mark R. Gale, St. Louis, for Big Bend Realty Co.
   DONNELLY, Justice.

This is a class action filed pursuant to § 71.015 (all statutory references are to RSMo 1959, V.A.M.S., unless otherwise stated) by the City of Kirkwood whereby it seeks a declaratory judgment that it may proceed as otherwise authorized by law in the annexation of an area of approximately 4,000 acres lying adjacent to and westerly of the city. St. Louis County is a named defendant and one of the appellants, and for that reason, among others, appellate jurisdiction is in this Court.

In this opinion, we adopt substantial portions of the opinion written by Stockard, C., in Division No. 2 of this Court.

Sections 77.020 and 78.060 provide that “The mayor and council of * * * [the City of Kirkwood], with the consent of a majority of the legal voters of such city voting at an election thereof * * * ” have the authority to extend the limits of the city over territory adjacent thereto “ * * in such manner as in their judgment and discretion may redound to the benefit of the city.” The exercise of this authority is subject to the provisions of § 71.015, which reads as follows:

“Whenever the governing body of any city has adopted a resolution to annex any unincorporated area of land, such city shall, before proceeding as otherwise authorized by law or charter for annexation of unincorporated areas, file an action in the circuit court of the county in which such unincorporated area is situated, under the provisions of chapter 527 RSMo, praying for a declaratory judgment authorizing such annexation. The petition in such action shall state facts showing:

“1. The area to be annexed;
“2. That such annexation is reasonable and necessary to the proper development of said city; and
“3. The ability of said city to furnish normal municipal services of said city to said unincorporated area within a reasonable time after said annexation is to become effective. Such action shall be a class action against the inhabitants of such unincorporated area under the provisions of section 507.070, RSMo. Laws 1953, p. 309, § 1.”

It is the judgment obtained pursuant to provisions of this statute from which this appeal has been taken. However, before we may consider the merits of this appeal we must first determine the effect, if any, of recent legislation pertaining to the right or power of the City of Kirkwood to annex territory.

In 1963 after the declaratory judgment was obtained by the City of Kirkwood but before it became final (because appealed), the Legislature enacted House Bill 21 (§§ 71.860-71.920), which became effective October 13, 1963.

Section 71.860 reads as follows:

“The provisions of section 71.015 shall apply as well to all cities, towns, villages and municipalities of whatsoever kind, located in any first class county which has adopted a constitutional charter for its own local government, except as provided in section 71.920. Laws 1963, p. 126, § A (§ !)•”

Section 71.870 reads as follows:

“The legislative body of any city, town or village located within the boundaries of a first class chartered county shall not have the power to extend the limits of such city, town or village by annexation of unincorporated territory adjacent to the city, town or village in accordance with the provisions of law relating to annexation by such municipalities until an election is held at which the proposition for annexation is carried by a majority of the total votes cast in the city, town or village and by a separate majority of the total votes cast in the unincorporated territory sought to be annexed. There shall be separate elections submitting the proposition of annexation to the two groups of voters, the same to be held simultaneously. The elections shall be held, except as herein otherwise provided, in accordance with the general state law governing elections in first class counties. Laws 1963, p. 126, § A (§ 2).”

Section 71.880 reads as follows:

“Whenever any city, town or village located in a first class chartered county desires to annex any unincorporated land of the county, the governing body of the city, town or village shall, before proceeding as otherwise provided by law, certify a notice of such fact to the board of election commissioners and to the governing body of the first class chartered county, which notice shall include:
“(1) The description by metes and bounds of the unincorporated territory sought to be annexed, and
“(2) A copy of the order, resolution or ordinance which contains the legislative act of the municipality ordering such election. Laws 1963, p. 126, § A (§ 3).”

Section 71.890 provides for publication and posting of notice of the election by the board of election commissioners. Section 71.900 specifies the form of the ballot.

Section 71.910 reads as follows:

“In the event that the proposition to annex such territory fails to receive the necessary majorities, the proposition shall not be resubmitted to the voters for a period of at least two years. Laws 1963, p. 126, § A (§ 6).”

Section 71.920 reads as follows:

“In the event that the proposition to annex such territory is approved by a unanimous affirmative vote in both the annexing municipality and the territory sought to be annexed, the annexing municipality, other provisions of this chapter notwithstanding, shall extend its limits by ordinance to include such territory, specifying with accuracy the new boundary lines to which the city, town or village limits are extended. Upon duly enacting such annexation ordinance, the municipality shall cause three certified copies of the same to be filed with the clerk of the county wherein the municipality is located, whereupon the annexation shall be complete and final and thereafter all courts of this state shall take judicial notice of the limits of that municipality as so extended. Laws 1963, p. 126, § A (§ 7).”

Prior to the ena.ctment of § 71.015 in 1953, the Legislature of Missouri delegated the authority to determine a change in boundaries by way of annexation of adjacent territory, as to the class of cities which includes the City of Kirkwood, to the “ * * * mayor and council * * * with the consent of a majority of the legal voters of such city * * By the enactment of § 71.015, this authority was not repealed or changed. Instead, the Legislature imposed a condition precedent to the exercise of that authority, that is, “ * * * before proceeding as otherwise authorized by law * * * for annexation of unincorporated areas * * * ” the city was required to obtain the declaratory judgment required by § 71.015. McConnell v. City of Kansas City, Mo.Sup., 282 S.W.2d 518; City of St. Joseph v. Hankinson, Mo.Sup., 312 S.W.2d 4; Anderson v. Moline Acres, Mo.Sup., 386 S.W.2d 38. The procedure required to be followed, briefly stated, was as follows: (1) The governing body of the city was authorized to adopt a resolution to annex a described unincorporated area of land; (2) the city then obtained the declaratory judgment required by § 71.015 as to the reasonableness of the proposed annexation and the ability of the city to furnish normal municipal services; (3) if a declaratory judgment favorable to the proposed annexation was obtained the city was then authorized to exercise the authority delegated by §§ 77.020 and 78.060 by (a) the action of the mayor and council, and (b) the submission of the proposed annexation to voters of the city for approval; and (4) if the voters consented to the annexation the city was then authorized to take such steps as necessary to complete the annexation and assume jurisdiction over the area. Steps (1), (3) and (4) are legislative. Step (2) is judicial in nature. See the discussion on the part step (2) plays in the annexation procedure set out in City of St. Joseph v. Hankinson, supra, 312 S.W.2d at pp. 7-10.

In the instant case, after the legislative process proceeded only through step (1), and there has been no completion of the judicial step nor any effective exercise of the authority delegated by §§ 77.020 and 78.060, the Legislature has enacted the 1963 Act, effective October 13, 1963. We must determine its effect.

In City of St. Joseph v. Hankinson, supra, at p. 10, we said:

“It is hardly necessary to repeat the maxims that the courts should indulge a presumption in favor of constitutionality (Bowman v. Kansas City, Banc, Mo., 233 S.W.2d 26), that they should faithfully apply to the act its plain and rational meaning in order to ascertain its intent and promote its object (Union Electric Co. v. Morris, 359 Mo. 564, 222 S.W.2d 767, 770), and that statutes should be construed so as to give effect to legislative intent and avoid absurd and meaningless results (State ex rel. Gass v. Gordon, Banc, 266 Mo. 394, 181 S.W. 1016; State ex rel. Moseley v. Lee, 319 Mo. 976, 5 S.W.2d 83).”

Examination of § 71.015 and the 1963 Act reveals at the outset an apparent conflict. The 1963 Act, by the terms of § 71.860, makes the provisions of § 71.015 applicable to the City of Kirkwood, which is a city in a first class county which has adopted a constitutional charter for its local government. However, as we have heretofore recognized, under § 71.015, the “city shall, before proceeding as otherwise authorized by law,” complete the judicial step. (Italics ours.) Section 71.880 provides that the city shall “before proceeding as otherwise provided by law” certify a notice of its desire to annex to the county board of election commissioners in contemplation of an elec- ■ tion. (Italics ours.) What is the order of priority? Must the judicial review be completed first? Or, must the election be conducted first with favorable result in both the area annexing and the area to be annexed ?

“ * * * where there are two acts on one subject, the rule is to give effect to both if possible, but if the two are repugnant in any of their provisions, the later act, without any repealing clause, operates to the extent of the repugnancy as to repeal the first. * * * ” State ex rel. City of Republic v. Smith, 345 Mo. 1158, 1166, 139 S.W.2d 929, 934; 82 C.J.S. Statutes § 291; 50 Am.Jur., Statutes, § 543. In the instant case, we find the 1963 Act, in § 71.-860, incorporated § 71.015 by reference but then enacted provisions, in § 71.880, which conflict with provisions of § 71.015, as noted above. The 1963 Act is specifically directed to cities located in a first class county which has adopted a constitutional charter for its own local government. The 1963 Act is, therefore, “specific” legislation when compared with § 71.015, which is “general” legislation in that it purports to apply generally to any city. Where a “specific” act applying to only one class of cities is enacted subsequent to the enactment of a “general” act applying to all cities, and certain provisions of the two acts cannot be harmonized, the “specific” act will be considered an exception to the “general” act and the terms of the “specific” act will prevail. State ex rel. City of Springfield v. Smith, 344 Mo. 150, 125 S.W. 2d 883, 885; 82 C.J.S. Statutes § 369; Am. Jur., Statutes, § 563.

We are of the opinion that the conflicting provisions of the two enactments with which we are concerned cannot be harmonized “so as to give effect to legislative intent and avoid * * * meaningless results.” City of St. Joseph v. Hankinson, supra. Section 71.880 specifically provides that “before proceeding as otherwise provided by law” a city to which the 1963 Act is applicable must hold the required elections in the city and in the area proposed to be annexed. Further, § 71.920 provides that in the event that the proposition to annex is “approved by a unanimous affirmative vote in both the annexing municipality and the territory sought to be annexed,” the judicial review required by § 71.015 is rendered unnecessary. This exception is expressly recognized in § 71.-860.

The effect of all this is that if a judicial review were completed before the election, and thereafter a “unanimous affirmative vote” resulted, the judicial review would be meaningless. If a judicial review were completed before the election, and thereafter the proposition did not carry by a majority vote in both areas, the judicial review would be meaningless. We are of the opinion that the Legislature intended that compliance with the 1963 Act should precede compliance with § 71.015.

The City of Kirkwood and Big Bend Realty Company, a named defendant favoring the proposed annexation, contend either individually or collectively that (1) the 1963 Act is prospective and does not apply to the pending annexation proceedings, and (2) if applicable it would violate Art. I, § 13 of the Constitution of Missouri, V.A. M.S., which provides that “ * * * no * * * law * * * retrospective in its operation * * * can be enacted.”

The 1963 Act provides that subsequent to October 13, 1963, the City of Kirk-wood, or any other city to which the act applies, shall follow a new and different procedure before it is authorized to exercise the delegated legislative authority of annexation. In this case only the first legislative step had been completed when the 1963 Act became effective, and the validity or effect of that step has in no way been impaired. The new procedure called for by the 1963 Act can be, and in our opinion must now be complied with. The limitation in Art. I, § 13 of the Constitution of Missouri “does not apply * * * to a statute dealing only with procedure or the remedy.” State ex rel. Clay Equipment Corporation v. Jensen, Mo.Sup., 363 S.W.2d 666, 669. The rule pertaining to vested rights in judicial proceedings, as stated in Clark v. Kansas City, St. L. & C. R. Co., 219 Mo. 524, 118 S.W. 40, 43, is that “[n]o person can claim a vested right in any particular-mode of procedure for the enforcement or defense of his rights. Where a new statute deals with procedure only, prima facie it applies to all actions — [including] those which have accrued or are pending and future actions.” See also State ex rel. Clay Equipment Corporation v. Jensen, supra, 363 S.W.2d at p. 669; Darrah v. Foster, Mo.Sup., 355 S.W. 2d 24; Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852; and Anson v. Tietze, 354 Mo. 552, 190 S.W.2d 193. We see no reason why the same rule should not apply here to changes by statute in the procedure to be followed in the exercise of a delegated legislative power. See State ex rel. Stone v. Vernon County Court, 53 Mo. 128, State ex rel. Wayne County v. Hackmann, 272 Mo. 600, 199 S.W. 990.

In connection with the contentions of the City of Kirkwood and Big Bend Realty Co., we must also consider the effect of § 1.150, which provides: “ * * * nor shall any law repealing any former law, clause or provision abate, annul or in anywise affect any proceedings had or commenced under or by virtue of the law so repealed, but the same is as effectual and shall be proceeded on to final judgment and termination as if the repealing law had not passed, unless it is otherwise expressly provided.”

It has been held that what is now § 1.150 was “intended to continue in force repealed laws until proceedings commenced thereunder, regardless of their nature, might be completed.” State ex rel. Wayne County v. Hackmann, supra; State ex rel. and to Use of Bair v. Producers Gravel Co., 341 Mo. 1106, 111 S.W.2d 521. However, the 1963 Act did not repeal the delegated legislative authority of the City of Kirk-wood to annex adjacent territory. That authority remained in effect, but the Legislature by the 1963 Act prescribed a different procedure to be followed in the exercise of that authority. Section 1.150 does not require or contemplate, in the situation we have here where the authority to take certain action is continued, that the procedure for carrying out that authority cannot be changed. This was ruled in Darrah v. Foster, supra, where it was said at p. 30 of 355 S.W.2d: “The defendant also relies upon § 1.150, RSMo 1959, V.A.M.S., as authority for the proposition that a change in the law shall not affect pending matters unless it is otherwise expressly provided. This statute was intended to preserve substantive rights vested prior to the repeal of the statute under which the rights were acquired and does not apply to remedies or procedures which, as we have held here, are not vested.” We conclude that the changes in the procedure for exercising the delegated legislative authority of annexation, brought about by the 1963 Act, and effective on October 13, 1963, do apply to the pending legislative process of annexation, and that subsequent to the effective date of the Act the proceedings necessary to complete the annexation must be in compliance with its provisions.

The City of Kirkwood and Big Bend Realty Co. assert that the 1963 Act is invalid because it violates Art. Ill, § 40, paragraphs 21, 22 and 30 of the Constitution of Missouri, which provide that the Legislature shall not pass “any local or special law * * * (21) creating offices, prescribing the powers and duties of officers in, or regulating the affairs of counties, cities, townships, election or school districts; (22) incorporating cities, towns, or villages or changing their charters; * * * (30) where a general law can be made applicable * * *

Big Bend Realty Co. asserts that “by its terms [the 1963 Act] is applicable only to municipalities ‘located in any first class county which has adopted a constitutional charter for its own local government,’ ” and is a special law because it does not purport to apply to municipalities in first class counties which may in the future adopt a constitutional charter. This language is quoted from § 71.860 of the 1963 Act, which provides for the application of § 71.015. There is no merit in this contention here. Section 71.015, by its terms, applies to the City of Kirkwood. The language of the 1963 Act which describes the class of cities, towns and municipalities to which it is applicable is contained in §§ 71.870 and 71.880, and it is there provided that the new procedure applies to “any city, town or village located in a first class chartered county.” Big Bend Realty Co. further asserts that the use in the past tense of the words “located” and “chartered” demonstrates conclusively that the 1963 Act pertains only to St. Louis County because it “does not provide the ‘open-endedness’ necessary to avoid the prohibition” of paragraphs 21 and 30 of Art. Ill, § 40, Constitution of Missouri. Reliance is placed primarily upon State ex rel. Board of Managers of Reform School, etc. v. Justices of County Court, 89 Mo. 237, 1 S.W. 307, decided in 1886. It was there held that a statute which referred to “all counties in this state in which is located a city of over 50,000 inhabitants” constituted a “local or special” law contrary to the constitutional prohibition.

The primary rule in statutory construction is to ascertain and give effect to the legislative intent, McCord v. Missouri Crooked River Backwater Levee Dist. of Ray County, Mo.Sup., 295 S.W.2d 42, and in doing so the courts should give the words used their plain and ordinary meaning so as to promote the object and manifest purpose of the statute. Baker v. Brown’s Estate, 365 Mo. 1159, 294 S.W.2d 22. The Legislature is deemed to have been familiar with the constitutional prohibition against local or special laws, Randolph v. City of Springfied, 302 Mo. 33, 257 S.W. 449, 452, 31 A.L.R. 612; Mooney v. St. Louis County, Mo.Sup., 286 S.W.2d 763, and when the words used permit a reasonable construction consistent with the obvious legislative intent and within constitutional limitations, a construction leading to invalidity should be avoided. This is the situation in this case. Unless expressly so stated, a statute does not refer only to a factual situation as of the time of enactment, but as in this case, the 1963 Act applies at any particular time while in effect to “any city, town or village located in a first class chartered county.” It would be a strained and unrealistic construction to say that the 1963 Act was intended to apply only to the factual situation in existence at the time of its enactment. The reasonable construction of the words used do not impel that construction, and such a construction would be contrary to the manifest intent of the Legislature, particularly when it may be deemed that the Legislature did not intend to enact an invalid statute.

In State ex rel. Carpenter v. City of St. Louis, 318 Mo. 870, 2 S.W.2d 713, the statute applied to “any incorporated city containing over 300,000 inhabitants.” This provision was held not to constitute a local or special law because the provisions were “not limited in their application to cities of 300,000 then existing * * *." In Reals v. Courson, 349 Mo. 1193, 1199, 164 S.W.2d 306, 308, the statute was held to be local and special for other reasons, but it was stated that the “general tenor of the language, ‘The boards of directors of school districts, formed of cities’ etc., is broad enough that it is reasonably susceptible of the interpretation and construction that it was intended to and does not apply to future districts coming within the class, * * * ” We cannot agree that the language of the 1963 Act, when reasonably construed in the light of the manifest legislative intention, requires a construction that it applies only to a factual situation existing at the time of enactment.

The City of Kirkwood and Big Bend Realty Co. assert that the 1963 Act is a special law because there is no reasonable basis for singling out annexations in a first class charter county. One who assails the reasonableness of a classification has the burden of showing that it does not rest upon any reasonable basis and therefore is essentially arbitrary, Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628, and we conclude that that burden has not been met. It is argued that the only conceivable ground upon which this classification could have been made would relate to the availability of and the furnishing of municipal services by such a county, and they quote from City of Olivette v. Graeler, Mo.Sup., 338 S.W.2d 827, 835, the statement that “* * * [presently the permissive authority made available by statute to first class counties is almost as extensive as the authority of a similar nature conferred by the Constitution upon charter counties.” This statement does not say that the authority in the two types of counties is the same. It is the general rule that an act of the legislature is not to be declared special legislation because of arbitrary classification unless it reasonably appears that there are no distinctive circumstances justifying the classification. State ex rel. Hollaway v. Knight, 323 Mo. 1241, 21 S.W.2d 767. Counties of the first class are so classified on the basis of assessed valuation. Art. VI, § 8, Constitution of Missouri; § 48.020. The right of any county to adopt a special charter pursuant to Art. VI, § 18, Constitution of Missouri, depends upon the number of inhabitants, that is, more than 85,000. Any county so qualifying and which has found it expedient to adopt a special charter would have problems by reason of its population relating to police protection, sanitation and the like, which would not necessarily exist in other counties. In addition, special problems exist concerning the coordination of county and municipal governments including the division of territory under the control of each and the supplying of municipal services. These are matters of which the Legislature undoubtedly was aware, and which it could properly take into consideration in enacting legislation in an effort to meet such problems. The 1963 Act relates to the designated municipalities as a class, and it applies equally to all within that class. We cannot say as a matter of law that the classification by the Legislature of “any city, town or village located in a first class chartered county” does not rest upon any reasonable basis and is essentially arbitrary. Therefore, the 1963 Act is not a “special” law within the meaning of Art. Ill, § 40 of the Constitution, and for that reason it is not in conflict with paragraphs 21, 22 or 30 of said section.

Big Bend Realty Co. contends that the, 1963 Act violates Art. VI, § 8 of the Constitution of Missouri, restricting the number of counties to four, in that by adopting legislation applicable only within charter counties, it creates five classes of counties. We are of the opinion that the 1963 Act is not unconstitutional as an attempt to create an additional class of counties. The 1963 Act is applicable to cities, not to counties. See Collector of Revenue of Jackson County v. Parcels of Land Encumbered With Delinquent Taxes et al., 362 Mo. 1054, 1070, 1071, 247 S.W.2d 83, 92, 93; Inter-City Fire Protection Dist. of Jackson County v. Gambrell, 360 Mo. 924, 931, 231 S.W.2d 193, 197, 198.

Finally, we must comment on the contention of the City of Kirkwood that it completed the “final legislative act” when it enacted Ordinance No. 4483 on February 11, 1959, “pursuant to the power granted to the City by Section 77.020.” In support of this contention the City makes this assertion: “This is an ordinance of annexation under that Section, and it extends the territorial limits of the City. Kirkwood’s legislative action relative to the annexation was absolutely complete at that point, and no further legislative action was required by it except to provide the framework of the election after the declaratory judgment proceeding.” With this we do not agree. Regardless of what the ordinance purports to provide, § 71.015 limits how a city may proceed with respect to annexation. The City could not enact a valid ordinance of annexation pursuant to § 77.020 prior to compliance with § 71.015, and insofar as Ordinance 4483 purported to do so it is a nullity. The declaration of intention to annex the area involved in this case (in the form of an ordinance but when only a resolution was required) could not be the final legislative act as contended by the City of Kirkwood. It was the first step in the legislative procedure of annexation, and only that.

We have determined that the 1963 Act is not unconstitutional for any of the asserted reasons, and that the new procedure therein provided for is applicable to the steps to be taken subsequent to October 13, 1963, by the City of Kirkwood in exercising the delegated authority to annex adjacent territory. This means that the first legislative step, the declaration of intention to annex the described area, is valid. But, under the new procedure, an election must be held in both the city and the area proposed to be annexed and a separate affirmative majority vote favorable to the annexation must be obtained in each place before the declaratory judgment pursuant to § 71.015 may be obtained, if it is then required. While the present action was properly begun at the time the suit was filed, in view of the 1963 Act it is now immaterial whether the judgment of the trial court was correct because : (1) if the required separate affirmative vote is not obtained in both the city and the area, no annexation of the area can be had and no declaratory judgment is needed; (2) if the affirmative vote in both the City of Kirkwood and the area is unanimous in each place, no declaratory judgment under § 71.015 is required; and (3) if the required affirmative vote is obtained, but not by a unanimous vote in each place, a new and different suit for a declaratory judgment is required. In any and all events, the present judicial proceedings, if brought to a conclusion and final judgment entered, would result in no more than an advisory opinion on the part of this Court and would be conclusive of nothing. Therefore, this cause of action is moot.

The judgment of the trial court is reversed and the cause remanded with directions that it be dismissed.

HOLMAN, HENLEY and EAGER, JJ., concur.

STORCKMAN, C. J., concurs in separate concurring opinion.

HYDE and FINCH, JJ., dissent in separate dissenting opinions.

STORCKMAN, Chief Justice

(concurring).

I concur in the majority opinion but as I view it the presence in §§ 71.015 and 71.880 of the same phrase, “before proceeding as otherwise provided by law”, does not present a conflict that “cannot be harmonized” so as to give effect to the legislative intent and avoid meaningless results.

Before the enactment of the 1963 statutes, it had been established by City of St. Joseph v. Hankinson, Mo., 312 S.W.2d 4, and other cases that the Sawyers Act (§ 71.015) must be complied with prior to taking the other steps provided by law for the annexation of unincorporated territory. Thus, at the time the 1963 statutes were enacted, § 71.015 was a part of the body of law relating to annexation by any city.

Section 71.015 and the 1963 Act do not conflict in matters of substance so as to render one or the other meaningless and ineffective in whole or in part. The sole question is which must be complied with first. The 1963 Act makes this clear.

Section 71.860 of the 1963 enactment provides that the Sawyers Act shall apply to “all cities, towns, villages and municipalities of whatsoever kind” in first-class charter counties except as provided in § 71.920. This latter section provides that, if the annexation proposition is approved by a unanimous vote in both the annexing municipality and the territory to be annexed, the annexation may be made effective immediately upon the adoption of an ordinance setting out the new boundary lines. If the legislative intent was to require compliance with the Sawyers Act prior to the separate but simultaneous elections, the exception in case of unanimous majorities would be meaningless. We are admonished to give effect to all provisions of statutes if it is reasonably possible to do so. Thus § 71.860 in combination with § 71.920 is the first expression of legislative intention to require the elections to be held first.

Next § 71.870 relates generally to the power to annex. It provides that: “The legislative body of any city * * * shall not have the power to extend the limits * * * in accordance with the provisions of law relating to annexation by such municipalities” until an election is had and the proposition for annexation is carried by majorities at separate elections held simultaneously in the municipality and the area to be annexed. Section 71.015 was a part of the existing law “relating to annexation” at the time § 71.870 was enacted in 1963. Section 71.870 has the effect of suspending the power of municipalities to proceed “in accordance with the provisions of law relating to annexation” until the elections are held. This, too, is consistent with a legislative intent to require the elections to be held prior to obtaining the declaratory judgment required by the Sawyers Act.

The provision in § 71.880 for giving notice of the election “before proceeding as otherwise provided by law” is also consistent with a legislative intent that the election be held prior to compliance with the Sawyers Act. The notice of election is required whenever the city “desires to annex”. The Sawyers Act requires the declaratory judgment action to be filed whenever the governing body of a city “has adopted a resolution to annex.” This language in the two statutes relating to the time or occasion tends to relieve against an apparent conflict through the use in each statute of the term, otherwise provided by law, especially since compliance with the Sawyers Act was “provided by law” when § 71.880 was enacted in 1963. This conclusion is fortified, as stated in the majority opinion, by the fact that the 1963 Act is a later law with a more specific application.

By this somewhat different approach, I reach the same conclusion as the majority opinion does that in first-class charter counties the elections required by the 1963 Acts must be held first. If the proposition receives a majority vote in both places, but less than unanimous votes, the Sawyers Act must be complied with next. The declaratory judgment required by § 71.015 would still perform a useful function in protecting the rights of all parties concerned and in determining the issue of reasonableness and the other matters specified.

If the two previous steps are favorable to the annexing municipality, then the municipality may complete the annexation by compliance with the procedure for annexation applicable to municipalities of its class. The minimum requirement or procedure remaining would be the adoption of an annexation ordinance.

Section 77.020 applicable to the City of Kirkwood requires the extension of the city limits to be “with the consent of a majority of the legal voters of such city voting at an election”. This statute does not state when the “consent of the legal voters” shall be obtained. We need not determine in this case whether a favorable vote under §§ 71.870-71.900 also satisfies the requirement of § 77.020 or if a second election is required since that issue has not been briefed on this appeal and has not been reached for decision.

These are perhaps additional reasons for reaching the same conclusion as the majority opinion, but I felt they should be stated. Therefore, I concur.

FINCH, Judge

(dissenting).

I would affirm the judgment herein, assuming that the evidence presented in the trial court was sufficient to meet the requirements of the Sawyers Act (§ 71.-015), a question not reached in the majority opinion, because I am not convinced that the 1963 Act (§§ 71.860-71.920) makes it mandatory that the elections prescribed by § 71.870 must be held before it is permissible to institute and prosecute a Sawyers Act case. I concur, however, with the conclusion of the majority opinion that § 71.870 is applicable to this annexation by the City of Kirkwood and that a favorable vote in simultaneous elections in the city and the area to be annexed would be required before the annexation could be completed.

The majority opinion finds that there is an irreconcilable repugnance between the provisions of § 71.015 (incorporated specifically by § 71.860 of the 1963 Act) and § 71.880, in the fact that each contains language requiring certain action before proceeding as otherwise authorized or provided by law. These two provisions, in effect, call for two different conditions precedent, says the majority opinion, and cannot be reconciled. Consequently, on the basis that § 71.015 is both a prior and a general law, purporting to apply to any city, whereas § 71.860 is both a later and a special law, applying only to cities, towns and villages in first-class charter counties, the majority opinion holds that § 71.880 repeals § 71.015 to the extent of the repug-nancy. The opinion further holds, as additional support for its conclusion, that the legislature intended compliance with § 71.-880 before the city should proceed with judicial review under § 71.015 on the basis that § 71.920 makes judicial review unnecessary if the proposal to annex is “approved by a unanimous affirmative vote in both the annexing municipality and the territory sought to be annexed.” I cannot agree with either of these conclusions, for the reasons hereinafter set forth.

The majority opinion overlooks the fact that § 71.860 of the 1963 Act specifically incorporated the provisions of § 71.015 into the 1963 Act and made it applicable to all municipalities located in first-class counties having a constitutional charter for their own local government. Prior to that time the Sawyers Act had been held inapplicable by its terms to towns and villages (Emerson Electric Manufacturing Co. v. City of Ferguson, Mo.App., 376 S.W.2d 643), but by § 71.860 the legislature now made it applicable to all cities, towns and villages in first-class charter counties. The effect thereof is the same as though the language of § 71.015 was repeated in § 71.860 verbatim, except to make it apply to all cities, towns and villages in first-class charter counties. Therefore, in interpreting the section requiring that a favorable declaratory judgment be obtained, we must construe it as an integral part of the 1963 Act. We are not confronted with the question of whether § 71.880 shall prevail as a provision in a later, special law over an earlier, general law. The question is not whether § 71.880 prevails over § 71.015, but rather whether § 71.880 prevails over § 71.860, or vice versa, or whether both can be made effective. We are dealing with two sections in the same law, passed at the same time. Hence, the cases cited in the majority opinion, such as State ex rel. City of Springfield v. Smith, 344 Mo. 150, 125 S.W.2d 883, are not applicable. Those cases are considering a situation involving two different statutes, passed at different times.

The question, then, becomes one of whether we can construe the various sections of the 1963 Act so as to avoid repugnancy and give effect and meaning to all. The very first section of the 1963 Act (§ 71.860), when we consider the language incorporated by reference as a part thereof, provides that whenever the governing body of a city, town or village in a first-class charter county has adopted a resolution to annex, it shall “before proceeding as otherwise authorized by law or charter” file a declaratory judgment action. The next sections are § 71.870, which provides for simultaneous elections in both the municipality and the area to be annexed, and § 71.880, which provides that the city “before proceeding as otherwise provided by law” shall certify notice of such proposed elections to the board of election commissioners and the governing board of the county. This is to be done by sending to the agencies indicated a description of the tract to be annexed and a copy of the order, resolution or ordinance which contains the legislative act of the municipality ordering the election. Nothing in either § 71.870 or § 71.880 provides specifically that the elections are to precede the Sawyers Act suit called for in § 71.860. Neither do I find such provisions by implication. It is to be noted that § 71.880, the section relied on primarily by the majority opinion to establish repugnance, calls for sending a copy of the order, resolution or ordinance directing the election. This is to be done before proceeding as otherwise provided by law. This does not imply that the declaratory judgment action could not have preceded, for the order directing the election is not necessarily the same as the resolution to annex referred to in § 71.015 and incorporated by reference into § 71.860. There simply is not any irreconcilable repugnance in the two sections. It even is arguable that this language as to the order, resolution or ordinance which “orders the election” evidences a recognition by the legislature that action under § 71.870 was to follow action under § 71.860, but certainly no clear and definite order of priority is established. It would seem that if the legislature had intended by the provisions of §§ 71.870 and 71.880 that the holding of the elections must precede the institution of a Sawyers Act suit, they certainly could and would have so provided.

As noted, both § 71.860 and § 71.880 contain language indicating that the acts required thereunder shall be performed before proceeding with annexation. The existence of such language in both sections is confusing, and leaves much to be desired, but the language of neither section clearly indicates that it is to precede the other or that one is a condition precedent to the other. The only thing absolutely clear is that both the Sawyers Act suit and the elections must precede annexation. Under these circumstances, I would construe the statute in such a way as to give effect both to § 71.860 and to § 71.880, rather than to nullify or repeal § 71.860, as the majority opinion does. It is our obligation to so do when possible. I would hold that it would be permissible to proceed first with the Sawyers Act suit pursuant to § 71.860, and then with the elections under §§ 71.870 and 71.-880, or vice versa, or that the two even could proceed simultaneously, but that compliance with both would be required before proceeding' with annexation. I would agree that if no Sawyers Act case has been brought or decided at the time of the elections under § 71.870, a unanimous vote in both elections would dispense with the necessity therefor. Section 71.920 so provides. The language of that section dispensing with the need for such a suit under those circumstances would indicate that the elections may be held first, but I do not agree that the statute thereby creates by inference a mandatory requirement that the elections precede the institution of the suit.

The majority opinion says that it repeals or nullifies § 71.015 to the extent it is repugnant to § 71.880, but it is submitted that instead the result is to repeal § 71.860 as it is the section which now makes the declaratory judgment suit provisions applicable to cities, towns and villages in first-class charter counties. Consequently, the effect of the majority opinion might be that the Sawyers Act would continue to be inapplicable to towns and villages in first-class charter counties, thus nullifying the intention of the legislature as expressed in § 71.860 to extend the requirement of a declaratory judgment action to such municipalities.

Insofar as the City of Kirkwood is concerned, the result of the majority opinion is that the present Sawyers Act case is dismissed. If the city later holds elections and obtains favorable votes in both the city and the area to be annexed, it then must retrace its steps by filing a new Sawyers Act case and trying the case anew, in effect redoing exactly what has been done in the case now pending in this court. This is a procedure which is wasteful of both time and money. I do not find such mandatory language in the various sections of the 1963 Act as to require that result, and I do not believe the legislature so intended.

HYDE, Judge

(dissenting).

I concur in dissenting opinion of Finch, J., herein holding an election is not required to precede a resort to the declaratory judgment procedure provided by Sec. 71.015, RSMo; but I desire to make the following statement concerning my view as to other reasons why the same result should be reached.

I stated my view concerning Sec. 71.015, called the Sawyers Act, in a separate concurring opinion in City of Hannibal v. Winchester, Mo.Sup., 391 S.W.2d 279, 290, as follows: “All the Act says is: ‘Whenever the governing body of any city has adopted a resolution to annex any unincorporated area of land, such city shall, before proceeding as otherwise authorized by law or charter for annexation of unincorporated areas, file an action in the circuit court of the county in which such unincorporated area is situated, under the provisions of Chapter 527, RSMo 1949, praying for a declaratory judgment authorizing such annexation.’ (Emphasis mine.) ‘A resolution is ordinarily ministerial in character and relates to the administrative business of the municipality, whereas an ordinance is distinctively a legislative act.’ 5 McQuillin, Municipal Corporations 52, Sec. 15.02. Nowhere in Sec. 71.015 is there any requirement that there be a resolution to begin annexation proceedings and there is no reason why there must be a resolution in the annexation process. There can be no doubt that annexation is the exercise of legislative power so that an ordinance which is a legislative act is required. Thus only if the term ‘resolution’ is construed to include ‘ordinance,’ as suggested in the McConnell case [McConnell v. City of Kansas City] (282 S.W.2d 518), would the provisions of Sec. 71.015 be mandatory as to any city. This is true because a city can annex without a resolution but cannot annex without an ordinance. Literally, by its terms, Sec. 71.015 only requires a declaratory judgment ‘whenever’ a resolution has been adopted and it does not anywhere require the adoption of a resolution.” -

This statute seems to me to authorize an optional procedure because it does not require a resolution as an essential step in annexation proceedings and there is no claim that any other statute requires it. Such construction is in accord with the title to the Act which is: “An Act relating to annexation of unincorporated areas by cities, and providing for actions therefor.” (Laws Mo.1953, p. 309.) This does not indicate a mandatory requirement and to construe it as mandatory would be giving the statute a construction not authorized by the title, in violation of Sec. 23, Art. Ill of the Constitution. See discussion of effect of this constitutional provision in State ex rel. Normandy School District, etc. v. Small, Mo.Sup., 356 S.W.2d 864, 867-869, and cases cited. The failure of this title to provide a mandatory requirement is emphasized by the heading placed on this section 71.015 in the published statutes as follows: “Annexation of territory, declaratory judgment required — proceedings.” The lack of a statement in the title that anything is required actually makes it necessary to construe the Sawyers Act procedure as only optional procedure. (Emphasis mine.)

Prior to the adoption of Sec. 71.015, the effective method for determining the reasonableness of an annexation was quo warranto after the election had been carried. See State ex inf. Mallett ex rel. Womack v. City of Joplin, 332 Mo. 1193, 62 S.W.2d 393; State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762. Sec. 71.015 provided a new and better remedy by which a city could have the issue of reasonableness of an annexation determined before going to the expense of holding an election. All it had to do was to adopt a resolution to annex and file an action for declaratory judgment. If it got a favorable judgment, the issue of reasonableness was res judicata. See City of St. Joseph v. Hankinson, Mo.Sup., 312 S.W.2d 4, 17. However, if a city does not get the issue of reasonableness decided by the Sawyers Act procedure before an election, it may still be determined in quo warranto after the election.

The 1963 Act (Laws Mo.1963, p. 126) does not change this situation. All it provides is: “The provisions of section 71.015, RS Mo 1959, shall apply as well to all cities, towns, villages and municipalities of whatsoever kind, located in any first class county which has adopted a constitutional charter for its own local government, except as provided in section 7 of this act.” Sec. 1 now Sec. 71.860. (Emphasis mine.)

All this does is to make Sec. 71.015 applicable to all municipalities in first class charter counties instead of only to cities as before. It, in no way, changed its application or effect. It added nothing to require it as mandatory procedure and if it was not mandatory before, the 1963 Act did not make it mandatory. Therefore, my view is that it is still optional with any municipality in St. Louis County and elsewhere whether it acts under Sec. 71.015 to determine the reasonableness of a proposed annexation before it adopts an ordinance therefor or takes any other steps for that purpose. If it does so, as has been done in this case, my conclusion is that this would make the issue of reasonableness res judi-cata; and I would hold the action of the City of Kirkwood herein to be proper and entitled to be finally determined by this Court on the merits.

ON MOTION FOR REHEARING

PER CURIAM:

The City of Kirkwood and Big Bend Realty Company, in their Motion for Rehearing, allege that the majority opinion overlooked the effect herein of Art. VI, § 15 of the Missouri Constitution, V.A.M.S., which provides for the organization and classification of cities and towns in not to exceed four classes so that municipal corporations of the same class shall possess the same powers and be subject to the same restrictions.

The majority opinion, although not specifically mentioning Art. VI, § 15 of the Missouri Constitution, notes the existence of special problems concerning the coordination of county and municipal governments within a first class chartered county, holds that the 1963 Act relates to the designated municipalities as a class and applies equally to all within that class, and holds that we “cannot say as a matter of law that the classification by the Legislature of ‘any city, town or village located in a first class chartered county’ does not rest upon any reasonable basis and is essentially arbitrary.” The 1963 Act does not violate the provisions of Art. VI, § IS of the Missouri Constitution. City of Lebanon v. Schneider, 349 Mo. 712, 717, 718, 163 S.W.2d 588, 590; State ex rel. Carpenter v. City of St. Louis, 318 Mo. 870, 889, 890, 2 S.W.2d 713, 717.

Accordingly, the Motion for Rehearing is overruled.

      . All references to § 71.016 herein are to RSMo 1959, V.A.M.S.

      . All references herein to §§ 71.860 to 71.920, inclusive, are to Mo.R.S. Cumulative Supplement 1965, Vol. 5, V.A.M.S., Pocket Part.


source: Caselaw Access Project

author: WELBORN, Commissioner. HENLEY, Judge

license: Public Domain

text:
    Paul WILLIAMS, a Minor, By and Through LaDeen Williams, Mother and Next Friend, Plaintiff-Appellant, v. Faye E. TUTTLE, Defendant-Respondent.
    No. 50982.
    Supreme Court of Missouri, En Banc.
    Feb. 14, 1966.

      Guilfoil, Caruthers, Symington, Montrey & Petzall, John P. Montrey, St. Louis, for appellant.
    Francis X. Cleary, F. Douglas O’Leary, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
   WELBORN, Commissioner.

This is an action for damages for personal injuries by Paul Williams, a minor, through his mother as next friend, against Faye E. Tuttle. The claim arose out of injuries sustained by plaintiff when the “soap-box” cart which he was operating collided with an automobile driven by defendant on a St. Louis County street. The petition sought damages of $22,500. A jury returned a verdict for defendant. After his motion for new trial had been overruled, plaintiff appealed.

On this appeal, plaintiff urges error in an instruction at defendant’s request by the trial court and in a ruling to an objection during the closing argument of defendant’s counsel. Defendant contends that there was no error in either regard, but that in any event plaintiff failed to make a submis-sible case.

The accident in question occurred Sunday, September 17,1961, at around 3:00 p. m. The weather was clear, the pavement dry. Plaintiff, who was then 14 years of age, and his younger brother, Patrick, had a “soap-box” cart, a 4-wheeled vehicle, some two to three feet in width and of unstated length. The cart had a single seat for a driver, who steered the vehicle by pushing his feet against a 2" x 4" to which the front axle was attached. The driver, seated on the seat, was near the ground and apparently no portion of the vehicle would have been above the head of the seated driver. The vehicle had no braking apparatus other than the dragging feet of its driver.

The Williamses lived in Hathaway Meadows subdivision at the intersection of Lanier Drive and Lovett Drive. Lanier waá a north-south street and Lovett ran west from a 90° T-intersection with Lanier. Lovett was a concrete paved street, 23 to 24 feet in width. Lovett ran on a descending grade from Lanier. On the day in question, after making some repairs to the cart, plaintiff was coasting in it down Lovett Drive.

On the trip which produced the collision, plaintiff had started the cart from the driveway of the Williams residence on Lanier. His brother, Patrick, was riding a bicycle ahead of the cart, towing the cart by a 15-ft. rope attached to the bicycle seat at one end and held by plaintiff in the cart at the other. The two vehicles went down the driveway, turned right on Lanier and then turned to the right on Lovett.

All witnesses were somewhat vague on the distance involved, but according to plaintiff the collision with defendant’s auto occurred about 200 feet down Lovett from Lanier. Plaintiff testified that about halfway to that point he gave a pull on the rope to gain speed and then turned loose of the rope. According to plaintiff, at that time the bicycle and cart were in the right-hand traffic lane of the street, some five or six feet from the right edge.

According to plaintiff’s evidence, an automobile was parked at the right or north curb of Lovett in front of the Erick residence, the second house from the Williams residence at the intersection. The automobile was a Ford owned by the Ericks.

After coasting approximately one half of the distance between the point where he dropped the rope and the parked car, plaintiff started to “angle” the vehicle by steering it with his feet to the left of the parked car in order to pass the parked vehicle. At about the time the cart reached the center line of the pavement, the car of defendant, driven in the same direction that the cart was moving, appeared on plaintiff’s left. The cart struck the automobile on the right side between the rear door and rear wheel, throwing plaintiff from the cart and causing injuries not here in question.

Plaintiff was the sole eyewitness to the collision. His brother, who preceded him on the bicycle, had gone around the parked auto and did not look back before the collision occurred. Mrs. Velva Jean Harris, who lived on the south side of Lovett a short distance beyond the scene of the collision, testified that she saw, from her living room, the auto parked in front of the Erick residence; that she saw plaintiff and his brother on the cart and bicycle in the street; that defendant came west on Lovett, going very slowly, came up behind plaintiff on the cart, almost stopped, then pulled all the way to the left or south side of the street and started to pass the cart. As the auto overtook the cart, the witness’s view of the cart was blocked and she did not see the actual collision. Mrs. Harris gave an affirmative answer to the question asked her on cross-examination as to whether or not there was “plenty of room between the two of them” at the time the cart passed from her view.

Plaintiff stated that he did not see defendant’s auto until it appeared on his left an instant before the collision. He had not looked to the rear for traffic on Lovett. He heard no approaching auto and no horn was sounded by defendant to warn of her approach.

Plaintiff submitted his case on humanitarian negligence on the theory that plaintiff was in discoverable imminent peril when he began to turn the cart to the left and that defendant thereafter could have avoided the collision by stopping, slackening her speed or sounding her horn.

On this appeal, defendant contends that no submissible humanitarian case was made by plaintiff because the evidence, viewed most favorably to plaintiff, showed that when plaintiff started turning his cart toward the center of the street, defendant’s auto was in a position where she could not then discover plaintiff’s movement; that plaintiff’s imminent peril did not arise until he began to turn his cart to the left and therefore plaintiff failed to establish a position of discoverable imminent peril without-resorting to surmise and speculation.

Plaintiff contends that his evidence, considered with the testimony of defendant favorable to plaintiff, warranted a finding by the jury that plaintiff was beginning to turn to the left by the time defendant entered Lovett Drive. We, therefore, look at defendant’s testimony to see whether or not it is helpful to plaintiff in this regard.

According to defendant, she was driving a 1957 Ford two-door south on Lanier and made a right turn into Lovett. As she turned the corner she saw plaintiff and his brother in the cart and on the bicycle on the right-hand side of Lovett “very near the curb, maybe a couple feet.” When she saw the boys, she slowed almost to a stop and then turned into the eastbound lane of Lovett, “all the way to the far side,” driving from 10 to 15 miles per hour. She started to pass the cart, and, as she did so, the cart disappeared from her view on the right side of her auto. According to defendant, the cart was “at least six feet” from the right side of her auto when it disappeared from her view. The next thing she knew, she heard a “thump on the right rear wheel of (her) car * * * and as I looked around, I saw the boy, * * * being thrown into the street off of the cart.” Defendant acknowledged that she did not sound her horn before starting to pass the cart.

Plaintiff argues that defendant’s testimony regarding the location of the cart when she first saw it — two feet from the north curb — and when she passed it after going all the way to the south side of the street — at least six feet to her right as it disappeared from her view — shows that the cart must have moved at least ten feet to the left in the interval in question and therefore plaintiff must have been turning to the left, oblivious to peril, and moving on a collision course, at the very moment defendant first turned into Lovett.

In this connection, we note that defendant testified that she watched the cart at all times after she turned into Lovett and that she did not see it move to the left at any time. Also defendant’s testimony was that there was no automobile parked in front of the Erick residence. Of course, this testimony, unfavorable to plaintiff, is not binding upon plaintiff who may rely upon such portion of defendant’s evidence as may favor his case insofar as it does not contradict plaintiff’s testimony and is not inconsistent with plaintiff’s fundamental theory. Ross v. St. Louis Public Service Company, Mo.Sup., 312 S.W.2d 849, 852(1), 65 A.L.R.2d 1324.

In our opinion, the jury could have found that, as defendant testified, she moved to the far left side of the pavement, preparatory to passing plaintiff on the cart and that, as she started to pass, she was “at least six feet” to the left of the cart. The jury could further find that the pavement was 23 to 24 feet wide and that defendant’s automobile was approximately seven feet wide. Under defendant’s testimony, the jury could thus have found that, at the time defendant started to pass the cart, it was from one to two feet to the right of the center line of the street. Since defendant’s testimony placed the cart when she first saw it at two feet from the right curb of the street, the jury could have found that defendant was, or should have been, aware that the cart had moved from six to seven feet to the left while it was within the range of defendant’s vision. Even taking plaintiff’s testimony that he was five to six feet from the right-hand curb as he started to turn to the left, a movement to the left of four to five feet would have been required in order to have placed the cart where defendant testified that it was as she started to pass it. Furthermore, although defendant testified that she moved as close to the left-hand curb as possible in order to pass the cart, she did not testify that she remained at that position until the time of the collision. Plaintiff testified that the cart was approximately on the center line of the pavement at the time of the collision. Therefore, accepting defendant’s testimony that she had moved to the left curb, the jury could also have found that, after defendant approached the left curb, she angled back to the right and toward the center of the pavement and toward the path of the cart which was angling to the left.

In these circumstances, the jury could have found that defendant knew, or should have known, that plaintiff’s cart was approaching the path of defendant’s vehicle as she started to pass the cart, that plaintiff was oblivious to the presence of defendant’s auto, and, consequently, that at that time plaintiff was in a position of discoverable imminent peril.

We reject defendant’s conclusion to the contrary, based upon speeds and distances, some of which are admittedly assumed because of the absence of direct evidence thereof. In any event, the computation, designed to show that plaintiff had not started to turn the cart to the left until it had passed from defendant’s view to the right of her auto, is inconsistent with defendant’s testimony which, as above set out, showed that the cart had moved to the left before she started to pass.

As previously stated, plaintiff submitted his case under the humanitarian doctrine. His verdict-directing instruction called for a favorable verdict if the jury found that, as defendant approached the point of the accident, plaintiff began turning his cart to the left and that plaintiff then became in a position of imminent peril of injury and that defendant knew or should have known thereof in time thereafter to have “avoided the collision * * * by stopping her automobile, or by slackening the speed thereof, or by sounding her horn, but that defendant failed to do so” and that her failure was negligence.

Instruction Number 4, given at the request of defendant, read as follows:

“The Court instructs you that if you believe and find from the evidence that the defendant, Faye Tuttle, drove her automobile westwardly on Lovett Drive and as she neared the vehicle in which plaintiff was riding she slowed her automobile and turned the same to her left into the eastbound lane of said drive, and if you further believe and find that Faye Tuttle started to pass the plaintiff’s vehicle and as she did so there was a distance of approximately six feet between her automobile and the vehicle in which plaintiff was riding and that in so passing she was in the exercise of the highest degree of care, and if you believe and find that after the front end of the automobile passed the plaintiff’s vehicle, and while the defendant’s vehicle was still in the eastbound lane, the cart in which plaintiff was riding came into contact with the right rear wheel or right rear door of Mrs. Tuttle’s automobile, then, and in such event, plaintiff is not entitled to recover and you will find your verdict in favor of defendant.

“And this is true whether there was or was not an automobile parked at the north curb west of the point of impact.”

On this appeal, plaintiff contends that, while Instruction Number 4 purported to converse plaintiff’s case, it failed to do so; it did not require findings on all charges of negligence submitted by plaintiff, and was not the converse of or inconsistent with plaintiff’s humanitarian warning submission. Defendant replies that Instruction Number 4 properly submitted defendant’s version of the accident and that the facts hypothesized clearly negated plaintiff’s humanitarian submission. According to defendant, “the finding of a six foot separation (between the two vehicles) would necessarily negate imminent peril and plaintiff’s humanitarian submission.”

With such conclusion, we cannot agree. To have properly negated plaintiff’s submission, the instruction should have further hypothesized facts relative to the direction of travel of the vehicles involved. A 6-ft. interval might well disprove imminent peril for vehicles traveling parallel or divergent courses. However, it would not necessarily do so if the courses were convergent, as plaintiff’s submission hypothesized. The instruction ignored the essential basis of the negligence charged against defendant and was therefore preju-dicially erroneous. Dell'Aria v. Bonfa, Mo. Sup., 307 S.W.2d 479, 481(3, 4); Cornelius v. Shields, Mo.Sup., 369 S.W.2d 209, 211 (1, 3); Scott v. Nash, Mo.App., 355 S.W.2d 626, 633(6-8).

The fact that the instruction required a further finding that defendant was in the exercise of the highest degree of care in passing the cart does not cure its defect. Such a “catch-all” phrase cannot be employed as a substitute for submission of an essential element of liability or non-liability. Cornelius v. Shields, supra; Scott v. Nash, supra.

In view of our conclusion regarding this assignment of error, we need not consider the assignment relating to the ruling on defendant’s argument. The question presented likely will not recur on a retrial.

The judgment is reversed and the cause remanded for a new trial.

PER CURIAM:

The foregoing opinion by WELBORN, C, is adopted as the opinion of the Court.

All concur except HENLEY, J., who dissents in separate dissenting opinion filed.

HENLEY, Judge

(dissenting).

I respectfully dissent from the opinion of Judge Welborn. This for the sole reason that I do not consider that plaintiff made a submissible humanitarian case.


author: BARRETT, Commissioner.

text:
    STATE of Missouri ex rel. PINE LAWN BANK AND TRUST COMPANY, a Corporation, Relator-Appellant, v. William CULLEY, Commissioner of Finance, Department of Business and Administration, State of Missouri, Respondent.
    No. 51251.
    Supreme Court of Missouri, Division No. 2.
    Jan. 10, 1966.
    Motion to Transfer to Court En Banc or for Rehearing Denied Feb. 14, 1966.
    Gerwitz & Seegers, Gerald L. Seegers, St. Louis, for appellant.
    Norman H. Anderson, Atty. Gen., Thomas J. Downey, Asst. Atty. Gen., Jefferson City, for respondent.
   BARRETT, Commissioner.

The appellant-relator, Pine Lawn Bank and Trust Company, is as its name implies a bank and trust company organized and operated under Chapter 363, RSMo 1959, V.A.M.S., and subsequent amendments, governing trust companies. Under its articles of incorporation the trust company had an authorized capital of $60,000 represented by 600 shares of common stock of the par value of $100 per share. In May 1963 the company, according to the recitals of its notice and resolutions, proposed to “retire 28 shares of the outstanding stock by a charge to undivided profits, (of $44,-800) and without reduction of capital.” (Emphasis supplied throughout this opinion.) At the same stockholders’ meeting it was also proposed "to change” the authorized capital from $60,000 to $300,000 represented by 3000 common shares of the par value of $100 per share. The company’s proposal to amend its charter resolved that “whereas it is desirable that the authorized capital be increased and certain capital adjustments be made, a stock dividend shall be declared with respect to the holders of 572 shares of stock of an additional 2428 common shares * * * so that for each one of such shares outstanding there will be issued to the holder thereof an additional 4.24475524 like shares, providing a capital account of this corporation of $300,000.00 and the remaining 28 shares of the 600 shares now outstanding, having been tendered for retirement and cancellation, be so retired and cancelled by the corporation at its expense, but not in an amount to exceed $44,800.00 to be charged to undivided profits.” The trust company, as was its duty under the governing statutes, (particularly § 363.520 RSMo 1959 Supp., V.A.M.S.) submitted this proposal to the Commissioner of Finance who refused to issue the required certificate approving the transaction. Thereupon the Pine Lawn Bank and Trust Company instituted this proceeding in mandamus to compel the commissioner to issue the certificate.

The case was submitted to the circuit court upon the petition, the respondent-commissioner’s return to the alternative writ, the relator’s answer and an agreed statement of facts which for the most part consisted of the trust company’s noted corporate documents, the notice and resolution of the stockholders’ meeting and the correspondence between the relator and the respondent all of which culminated in the commissioner’s denial of the certificate. Upon this record the circuit court made findings of fact, the essence of which was that insofar as it was proposed that the 28 shares “would be retired and cancelled * * * with such expense to be charged to undivided profits (the language of the resolution was “by the corporation at its expense”) * * * would violate Section 362.170(6) (relating to banks) and 363.260 (6) (relating to trust companies) RSMo 1959, V.A.M.S., prohibiting banks and trust companies from purchasing or holding shares of their own capital stock.” In this connection the court further found that the relator bank and trust company sought to increase its capital stock “by declaring a stock dividend applicable to only 572 shares of the total 600 capital shares then outstanding, without applying said stock dividend to the remaining 28 shares of its capital stock.” And finally the court found that relator’s verified statement disclosed on its face “that retirement of 28 shares of relator’s capital stock is to be made ‘at a cost to the corporation’, relator, of §44,800.-00.” Upon these findings of fact the court concluded as a matter of law, therefore, that in thus seeking “to retire and cancel” the 28 shares for $44,800, “with such cost to be charged to the Undivided Profits account of relator” violates § 363.260(6) RSMo 1959, V.A.M.S. This being true the court of course concluded that the commissioner’s refusal to issue the certificate was not arbitrary, capricious or invalid.

For the most part the briefs of the parties are concerned with whether the proposed transaction in fact amounted to a purchase of its capital stock in direct violation of § 363.260(6) RSMo 1959, V.A.M.S., (the specific language being “A trust company, subject to the provisions of this chapter: * * * (s)hall not * * * be the purchaser or holder of any such shares”) and was therefore invalid. The appellant trust company says that the declaration of a stock dividend resulting in the increasing of capital is not forbidden by law and that the court erred in concluding as a matter of law that “in seeking to retire and thereafter cancel” the 28 shares it violated the statute because “the action contemplated by appellant would have the effect of merely reducing or decreasing Capital” which is expressly permitted. The appellant contends that “the retirement and cancellation of outstanding stock” (the 28 shares) is not synonymous with “purchasing and holding” which the statute expressly condemns. In this connection in support of its argument the appellant asserts that “when stock is retired and cancelled” it ceases to exist and unlike treasury stock cannot be voted.

In support of its contention the appellant cites a series of federal tax cases in which for example the problem was whether the acquisition of the taxpayer’s stock “by the corporation which issued it was a distribution in partial liquidation of the corporation or the purchase of a capital asset.” The answer to the question determined whether the taxpayer was to be taxed 100% of the gain realized under one section of the revenue act or only on a fixed proportion of the gain under another section of the tax law. Amelia H. Cohen Trust v. Commissioner of Internal Revenue, 3 Cir., 121 F.2d 689. But aside from the fact that these were all federal tax cases and were not concerned with the problems involved upon this appeal, they were all concerned with so-called ordinary business corporations as contrasted with banking corporations and trust companies. In this connection in passing it may be noted that a national bank may not “be the purchaser or holder” of its shares except as in the case of all banks, including Missouri, to prevent loss upon a debt previously contracted in good faith. 12 U.S.C.A. § 83. And even as to corporations in general there are several dangers or evils in “allowing a corporation, in the discretion of its management, to make purchases and sales of its own shares,” Ballantine on Corporations, § 257, p. 609, and no sound reasons for a rule to the contrary. “Investment for profit, on which our system of corporate capitalism is based, presupposes that corporate earnings, unless needed for investment in plant or as working capital, should normally be returned to all of the shareholders ratably in the form of dividends.” 89 Pa.L.R. 697, “Purchase And Redemption By A Corporation Of Its Own Shares,” E. Merrick Dodd, Jr.; 1942 Wis.L.R. 157. As to corporations in general a majority rule permits repurchase of stock in the absence of statutory restrictions if in good faith and without prejudice to creditors or other stockholders. There is a minority rule to the contrary but today the problem is usually dealt with by express statute, some states permitting repurchase if capital is not impaired, others permitting repurchase out of “surplus” only, while others have detailed statutes setting forth numerous limited specific uses of repurchase. But Missouri has not adopted any of these alternatives (59 Yale L.J. 1177, 1183), in this jurisdiction general business corporations have, subject to certain restrictions, power “to purchase, take, receive, or otherwise acquire, hold, own, * * * its own shares; provided, that it shall not purchase, either directly or indirectly, its own shares when its net assets are less than its stated capital, or when by so doing its net assets would be reduced below its stated capital.” RSMo 1959, § 351.390, V.A.M.S.; Burg v. Bonne Terre Foundry Co.., Mo.App., 354 S.W.2d 303, 306. In a footnote to this statute in V.A. M.S. pp. 658-661, the law reviews above cited and other leading articles are fully noted.

But as indicated, there is no such statute in Missouri relating to banks or trust companies, trust companies may not purchase or hold their own shares unless as noted to prevent loss on a previously existing debt and even then “stock so purchased or acquired shall be sold at public or private sale or otherwise disposed of, within six months.” RSMo 1959, § 363.260(6), V.A. M.S. One other collateral matter but with some bearing on the appellant’s argument, in general “surplus,” while including net earnings, constitutes a part of the working capital of the bank. 3 Zollmann, Banks & Banking, § 1471, p. 66. In this jurisdiction and specifically as to trust companies “surplus” and “surplus fund” are defined and as to the latter it “means a fund created pursuant to the provisions of this chapter by a trust company from its net earnings or undivided profits, which to the amount specified in this chapter is not available for the payment of dividends and cannot be used for the payment of expenses or losses so long as any such corporation has undivided profits.” RSMo 1959, § 363.010(11) (12), V.A.M.S. Insofar as the proposition here involves capital in general it may be noted that “(a) reduction of the nominal capitalization of a corporation is regarded as a fundamental change in a corporation” and in the absence of a specific statute authorizing it, a corporation may not reduce the number of its authorized shares of stock “in the sense of permanently retiring a portion of them” (18 Am.Jur.2d, Corporations, § 233, p. 758 ; 44 A.L.R. 11, 13) and of course “the purchase of its own shares by a corporation constitutes a reduction of its capital, at least if the corporation has no surplus or if it cancels and retires the stock.” 35 A.L.R.2d 1149, 1167. “Reduction of capital stock and distribution of capital assets upon reduction.”

It may be that this general review of the subj ect has been unnecessarily belabored, at least in part, since in view of the facts and the specific contentions of the parties it is not necessary in the particular circumstance to definitively determine whether this particular transaction would constitute a “purchase” within the prohibition of the statute, § 363.260(6). In its brief the appellant concedes that “(t)he cancellation and retirement of 28 shares would, standing alone, be a violation of law in that it would have reduced Appellant’s capital below $60,000 which would have been below the statutory minimum applicable to Appellant.” But the appellant argues that “the joint action of declaring the stock dividend, coupled with the retirement of 28 shares, resulted in increasing the capital to $300,000.00” by declaring as the statutes (§§ 363.450, 363.-470) permit. This brings to the forefront the very meager facts of this record and of the entire proposal. It is mathematically demonstrable from the few bookkeeping figures set out in the appellant’s proposed amendment to its articles of incorporation that the entire proposal would not result in an impairment of its capital structure and therefore an act of insolvency. Furthermore, in this particular instance, as the corporate records recite, all “600 shares were cast in favor” of the proposals. But it is not necessary to a decision of this case to determine whether there was in fact, as appellant calls it, “joint action” in declaring the dividend and the retirement of the 28 shares. In its briefed points and throughout the case, in fact the basis of the appellant’s position is that the 28 shares were “retired and cancelled” out of undivided profits. But there are no facts upon which to base this contention, all that appears from the corporate documents and this record is that 28 shares “having been tendered for retirement and cancellation, be so retired and cancelled by the corporation at its expense” for $44,800. It does not appear who owns the 28 shares or why they were to be “retired and cancelled.” There is no proof as to how this recited fact was accomplished, there is only the recital of the resolution “be so retired and cancelled,” the physical shares are unaccounted for and it does not appear why the company would desire to pay $44,800 for these particular 28 shares with a par value of $2800. It is recited that thereafter the capital will be represented by 3000 shares but this is accomplished by a recited stock dividend with respect to “the holders of 572 shares of stock of an additional 2428 common shares” after assigning to each outstanding share “an additional 4.24475524 like shares.”

Here again the appellant makes this admission: “We concede such an arrangement could not be forced upon an unwilling shareholder,” but they say “it is just as certain that shareholders can agree among themselves to any variation of stock retirement or the declaration of dividends.” And that may well be but they are not the only parties concerned, it is here that the Commissioner of Finance becomes involved. It is obvious from the appellant’s admissions as well as from the recitals of its resolutions that 28 shares of common stock did not receive the same treatment as was given the 572 shares. The unexplained preferential treatment accorded 28 shares is the very thing to which the commissioner objected. It may be that in this particular instance, all stockholders agreeing and accepting “an additional 4.24475524 like shares” and permitting 28 shares to receive $44,800, the immediate parties to the corporate proceedings may contract among themselves as they please. At the same time, as a precedent and as far as good banking practice is concerned it is indeed understandable that the Commissioner of Finance would not and should not condone and approve the proposed procedure by issuing the required certificate. Even as to ordinary business corporations inequality of treatment of stockholders or shares of stock is not permitted. “Unless the statute authorizing a reduction of capital stock provides otherwise, or clearly implies otherwise, the reduction must operate equally on all stockholders or, at least, on all holders of the same class of stock.” 18 Am.Jur.2d § 237, p. 761; 35 A.L.R.2d 1. c. 1180. In Townsend v. Maplewood Investment & Loan Co., 351 Mo. 738, 173 S. W.2d 911, it appeared that “(t)he company, through its board of directors, made a practice of repurchasing stock which had been sold, paying the stockholders therefor with money belonging to the corporation and marking the stock ‘retired’ or ‘canceled.’ ” As to this the court said, “These transactions of repurchasing its stock were illegal and constituted a fraud upon the other stockholders as well as creditors of the corporation.”

For the indicated reasons the appellant trust company was not entitled to a peremptory writ of mandamus and the judgment is therefore affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges concur.


author: DONNELLY, Judge.

text:
    STATE of Missouri, Respondent, v. L. S. AMERISON, Appellant.
    No. 51606.
    Supreme Court of Missouri, Division No. 1.
    Feb. 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Charles C. Hatley, Asst. Atty. Gen., New Madrid, for respondent.
    William B. Spaun, Hannibal, for appellant.
   DONNELLY, Judge.

Appellant, L. S. Amerison, was convicted of first-degree robbery under § 560.120 RSMo 1959, V.A.M.S., by a jury in the Hannibal Court of Common Pleas, at Hannibal, Missouri, and his punishment under the provisions of the Habitual Criminal Act, § 556.280 RSMo 1959, V.A.M.S. (as amended Laws 1959, S.B. 117), was assessed at imprisonment in the custody of the State Department of Corrections for a term of twenty years. Jurisdiction was in the Hannibal Court of Common Pleas because the offense was alleged to have been committed in Mason Township, County of Marion, Missouri. Section 480.-200 RSMo 1959, V.A.M.S. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.

Appellant does not question the sufficiency of the evidence. However, a brief summary is in order. According to the evidence, on October 18, 1961, between 11:00 and 11:15 p. m., two men entered Foley’s Drive-In Package Liquor Store, 922 Mark Twain Avenue, Hannibal, Missouri. Mrs. Loretta Wingfield, co-owner of the store, had just completed counting the day’s receipts. According to Mrs. Wing-field, appellant started to use the telephone book and then shoved a gun in her stomach and ordered her into the rest room. He searched her for money in the rest room and she told him the money was in the cash register. He then left her and she could hear money being dumped into cloth. Appellant walked back to the rest room and told her to stay in there and keep still. He and his companion then left. After about a minute, Mrs. Wing-field returned to the cash register, found the money gone, except for a few pennies, and called the police. Mrs. Wingfield identified appellant in the courtroom at the trial as the man who robbed her. It is evident that the evidence was ample to sustain the conviction.

Appellant contends that he was not brought to trial in a timely manner, and should have been discharged under the provisions of § 545.890 RSMo 1959, V.A.M.S. Appellant was arraigned April 13, 1964, and the case was set for trial November 16, 1964, the first date available. Later, the trial court being advised that appellant had not employed an attorney to represent him, the trial of the case was continued and reset for January 12, 1965. On January 7, 1965, the trial court appointed counsel to represent appellant. On January 12, 1965, counsel for appellant requested a continuance in order to have time to prepare. The case was set for trial May 24, 1965, and trial was had beginning on said date. What constitutes laches within the meaning of § 545.890 RSMo 1959, V.A.M.S., was construed in State v. Nelson, Mo.Sup., 279 S.W. 401, at 403, to be the failure of the State to justly afford the accused “such a speedy hearing and determination of the charge against him as is accorded by the Constitution.” We have examined the various entries of the trial court’s orders on continuances in this case and they do not sustain appellant’s contention. Appellant was not entitled to be discharged.

Appellant contends that the trial court erred in not granting him a continuance because of a newscast on the local radio station which appellant alleges deprived him of a fair and impartial trial. In his application for continuance, appellant stated: “That on the 21st day of May, 1965, just several days before the trial of this cause, one, Sam Dindia, a Police Sergeant of the City of Hannibal, in a very popular news broadcast here in Hannibal and in this area for many people, voluntarily stated over said Radio Station KHMO, which is heard by many people in this community, that the Sheriff, or in words and substance, that the Sheriff of Marion County, Missouri, had brought a very large visitor to their jail from Jefferson City, you know the one who subpoenaed Sonny Liston for his trial next Monday, which fell through; he is a very big man and we are considering keeping a very close watch on him because he is dangerous.” We cannot convict the trial court of prejudicial error for failure to grant a continuance under these circumstances. “ * * * What constitutes unusual or extraordinary circumstances sufficient to entitle accused to a continuance is ordinarily a question addressed to the sound discretion of the trial court. Since the trial court can much better determine the propriety of a postponement on this ground than can the appellate court, it requires a very strong showing to induce the higher court to interfere, and it will disturb the action of the trial court only where a clear abuse of discretion is shown. * * * ” 22A C.J.S. Criminal Law § 497, pp. 157-158; State v. Golden, 353 Mo. 585, 183 S.W.2d 109, cert. den. 324 U.S. 874, 65 S.Ct. 1013, 89 L.Ed. 1427; State v. Engberg, Mo.Sup., 377 S.W.2d 282. The trial court did not abuse its discretion in failing to grant a continuance.

Appellant alleges that he should have been granted a new trial because of a news broadcast at noon on the date of trial, “which said broadcast over Radio Station KHMO could have been heard by all jurors.” We need not rule on the question of alleged prejudice here. Appellant failed to show that any member of the jury heard the broadcast prior to the rendition of the verdict. State v. Darrow, Mo. Sup., 104 S.W.2d 249, 251-252; State v. McGee, 336 Mo. 1082, 83 S.W.2d 98, 104.

Appellant, a Negro, alleges that Negroes were systematically excluded from the jury panel and he was denied a fair and impartial trial. The record does not support his contention. Paul O. Munger, clerk of the trial court, testified that there were no Negroes selected as jurors on the jury panel involved here. However, his further testimony was as follows:

“Q. Paul, do you know whether or not there are any names of any colored people in the jury box when you pull the jury panel before the list is drawn?
“A. We have approximately fifty to seventy-five names in the box.
“Q. And in the past, colored peoples names, and colored people have been drawn and listed on the jury panel of the court ?
“A. That’s right.
“Q. For the past several years, in fact? A. Yes, sir.
“Q. There is no exclusion of colored people from the jury box, is there? A. No, sir.
“Q. If they are qualified by law, then their names are included in the box? A. That’s correct.
* ‡ * ‡ *
“Q. How many negroes are in the jury box?
“A. Well, I would have to make an estimate of it, Mr. Spaun. I would say between fifty and seventy-five.
“Q. How many white people? A. Around five hundred.
“Q. In other words, you put about ten percent of—
“A. Well, I don’t go on a percentage basis, Mr. Spaun. If any colored person who has the qualifications to serve as a juror, I am glad to put their names in the box. In fact, I am always looking for addition ones to put in.”

The applicable law was stated in State v. Logan, 341 Mo. 1164, 1172, 1173, 111 S.W.2d 110, 114, 115, as follows: “ * * * It is not the law that the appellant was absolutely entitled to have ne-groes on the jury that tried him, or even, on the panel from which that jury was drawn. It may happen that no negroes (or members of any other particular class of our citizens) will be on the regular panel for a given term of court, or on the special venire for a particular case. If that occur in due course and good faith because of the ratio of white to negro population, or because of actual disqualifications, pure chance or the like, it is within the law; but if the defendant be deprived by design of the chance of having negroes on the jury which is to try him, the Federal Constitution may be invoked. * * * ” See also Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759; Akins v. State of Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; Cas-sell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; State v. Ramsey, 355 Mo. 720, 197 S.W.2d 949; State v. Brownridge, Mo.Sup., 353 S.W.2d 715. The burden to establish discrimination is on appellant. Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866; Akins v. State of Texas, supra; State v. Ramsey, supra. The burden is not sustained here. There is no showing of any systematic or intentional exclusion of Negroes from the jury. This point is ruled against appellant.

An examination of the record as required by Rule 28.02, V.A.M.R., discloses no error. The judgment is affirmed.

All concur.


author: HYDE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Royal S. FLESHMAN, Appellant.
    No. 51501.
    Supreme Court of Missouri, Division No. 1.
    Feb. 14, 1966.

      Norman H. Anderson, Atty. Gen., Donald L. Randolph, Asst. Atty. Gen., Jefferson City, for respondent.
    Taken as submitted by appellant.
   HYDE, Presiding Judge.

Appeal from order denying petitioner’s motion to set aside judgment and sentence under Rule 27.26, V.A.M.R. Petitioner’s claim is that five sentences imposed June 27, 1940 by the Circuit Court of Gasconade County run concurrently and not consecutively.

The transcript in this case shows: “[T]he following docket entries were made on the docket sheets of five cases against appellant brought by the State of Missouri, filed in the Circuit Court of Gasconade County, to-wit:

“No. 1 — Defendant enters plea of guilty and punishment assessed at 6 years for burglary and 2 years for larceny in the Penitentiary.
“No. 2 — Defendant enters plea of guilty and punishment assessed at 6 years for burglary and 2 years for larceny in the Penitentiary, commencing at the termination of Sentence No. 1.
“No. 3 — Defendant enters plea of guilty given 10 years for burglary and 4 years for larceny commencing at the termination of Sentence No. 2.
“No. 4 — Defendant enters plea of guilty given 2 years in Penitentiary for breaking jail, commencing at termination of Sentence No. 3.
“No. 5 — Defendant enters plea of guilty and punishment assessed at 10 years in the State Penitentiary. Sentence to begin at the termination of Sehtence No. 4.”

The transcript further shows relevant parts of the judgments entered June 27, 1940, as follows:

No. 1 — “ * * * [I]t is therefore sentenced, ordered and adjudged by the Court that the said Defendant, Royal S. Fleshman, having plead guilty as aforesaid, be confined in the Penitentiary of the State of Missouri, for a period of 6 years for Burglary and 2 years for Larceny from the 27 day of June, 1940, * *
No. 2 — “* * * [I]t is therefore sentenced, ordered and adjudged by the Court that the said Defendant, Royal S. Flesh-man, having plead guilty as aforesaid, be confined in the Penitentiary of the State of Missouri, for a period of 6 years for Burglary and 2 years for Larceny from the 27th day of June, 1948, or commencing at the termination of Sentence No. 1, * *
No. 3 — “ * * * [I]t is therefore sentenced, ordered and adjudged by the Court that the said Defendant Royal S. Fleshman, having plead guilty as aforesaid, be confined in the State Penitentiary of Missouri, for a period of 10 years for Burglary and 4 years for Larceny, from the 27th day of June, 1956, or commencing at the termination of Sentence No. 2, * *
No. 4 — “* * * [I]t is therefore sentenced, ordered and adjudged by the Court that the said Defendant Royal S. Fleshman, having plead guilty as aforesaid, be confined in the State Penitentiary of Missouri, for the period of 2 years for Breaking jail from the 27th day of June, 1970, or commencing at the termination of Sentence No. 3, * *
No. 5 — “ * * * [I]t is therefore sentenced, ordered and adjudged by the Court that the said Defendant Royal S. Fleshman, having plead guilty as aforesaid, be confined in the State Penitentiary of Missouri, for a period of 10 years for Stealing Automobile from the 27th day of June, 1972, or commencing at the termination of Sentence No. 4, * *

We do not see how the court could have more clearly indicated that these sentences were to run consecutively continuing petitioner’s imprisonment until 1982. Petitioner has filed certified copies “of the minutes of our said circuit court docket of Judge R. A. Breuer” all of which show similar entries, such as “Defendant enters plea of guilty and punishment assessed at 6 years in Penitentiary for Burglary and 2 years in Penitentiary for Larceny. Sentenced.” These entries, on which petitioner relies, are not the sentences but only indicate the punishment assessed in each case and show that defendant was sentenced. The sentences are shown in the judgments entered and these provisions of the sentences hereinabove set out control. See 30A Am.Jur. 167, 225, Judgments, Secs. 12 and 92; see also 49 C.J.S. Judgments, § 4, p. 28, note 35. The minutes in the Judge’s docket are not inconsistent with the sentences which show the final action, judgment and sentence of the court.

As we said in State v. Shell, Mo. Sup., 299 S.W.2d 465, 467: “It has long been established that the court may, in its discretion, under circumstances such as existed in the cases under consideration, impose either cumulative or concurrent sentences. The only requirement is that the judgments should clearly reveal the intent of the court in that respect. Anthony v. Kaiser, 350 Mo. 748, 169 S.W.2d 47. It was explicitly provided in the five judgments under review that the sentences were cumulative and that they were to be served consecutively.” See also State ex rel. Dalton v. Blair, 365 Mo. 1167, 294 S.W.2d 1. We hold the judgments herein do clearly reveal the intent of the court to impose cumulative sentences to be served consecutively and not concurrently.

Therefore the court properly denied petitioner’s 27.26 motion and its order is affirmed.

All concur.