text:
    The FIRST NATIONAL BANK OF KANSAS CITY, Missouri, a Corporation, Successor Trustee under the Will of Daniel F. Trigg, deceased, Respondent, v. MERCANTILE BANK & TRUST COMPANY, a Corporation, Appellant.
    No. 50061.
    Supreme Court of Missouri. En Bane.
    March 9, 1964.

      Jack B. Robertson, Rogers, Field & Gentry, Kansas City, for appellant.
    Donald H. Chisholm, Stinson, Mag, Thomson, McEvers & Fizzell, Charles C. Oliver, Jr., Kansas City, for respondent.
    Thompson, Mitchell, Douglas & Neill, James M. Douglas, Robert Neill, W. Stanley Walch, St. Louis, for Mercantile Trust Co., amicus curiae.
    Bryan, Cave, McPhecters & McRoberts, George W. Simpkins, Robert H. McRob-erts, Jr., St. Louis, for St. Louis Union Trust Co., amicus curiae.
    Lewis, Rice, Tucker, Allen & Chubb, Charles C. Allen, Sr., Charles C. Allen, Jr., St. Louis, for The Boatmen’s Nat. Bank of St. Louis, amicus curiae.
    James E. Campbell, Kansas City, amicus curiae.
   PRITCHARD, Commissioner.

This case arose over the appointment of the First National Bank of Kansas City, respondent, as successor testamentary trustee under the will of Daniel F. Trigg, deceased, by the Probate Court of Jackson County, Missouri, at Independence, following which respondent brought a successful action to recover some $6,169.03 (including interest) deposited under said will with appellant bank by the former trustee who is now deceased.

The answer and brief of appellant challenge the constitutionality of two sections of the Probate Code of Missouri, Sections 472.020 and 456.225 [all statutory references are to RSMo 1959, V.A.M.S., unless otherwise stated], which sections purport to grant jurisdiction to the probate courts over the administration of testamentary trusts, and to set up the procedure therefor. Thus the appeal, raising the constitutional question, is properly lodged in this court. Mo. Const. Art. V, Sec. 3, V.A.M.S.

The chain of events giving rise to the present litigation is more specifically this: By the last will and testament of Daniel F. Trigg, who died June 25, 1960, the residue of his estate was bequeathed to the executor (William R. Moore) of his will as “Trustee for the members of the Local Camp of the Boy Scouts of America and to be used by said Camp in Oak Grove, Missouri, only as directed by its officers, * * This will contains no directions as to a successor trustee of the trust estate. The estate was duly administered, distribution was made, and William R. Moore, as trustee, on October 11, 1961, deposited the distributive share of the trust (then $6,092.22) in an interest bearing savings account with appellant, in the name “Boy Scout Troop of Oak Grove, Missouri.” William R. Moore died on June 3, 1962.

Thereafter, the Kansas City Area Council Boy Scouts of Missouri filed its petition in the probate court, alleging the foregoing facts, and further that there is no entity known as the “Local Camp of Boy Scouts of America” in Oak Grove, Missouri, but that in Oak Grove there are functioning groups of “Boy Scouts” designated as Troop 266 and Pack 266, and Troop 422 and Pack 422, which have charters from petitioner and the National Council of Boy Scouts of America. The petitioner then prayed the probate court for the appointment of a successor trustee to administer said trust under Section 456.225. The Oak Grove “Committees” of the troop and pack groups located there also filed their petition joining with the above named petitioner, and adopted the allegations of the latter.

On September 19, 1962, the probate court by order appointed respondent as successor trustee to William R. Moore, deceased, under the will of said Daniel F. Trigg, deceased. Thereafter, respondent filed its petition in the Circuit Court of Jackson County, Missouri, attaching thereto as exhibits the probate court proceedings as set forth above, and prayed judgment against appellant for the amount of the aforesaid savings account upon the grounds that appellant had refused to register the account in the name of the appointed successor trustee, or to honor its request for withdrawal of the funds.

By answer, appellant admitted the facts alleged in the circuit court petition, but averred that it is in doubt as to the jurisdiction of the probate court to render the judgment, decree and order of September 19, 1962, and that it is in doubt as to whether or not it would be protected from further liability in the event of claims against it by or on behalf of the beneficiaries of the trust. Further answering, appellant alleged that said sections 456.225 and 472.020 are unconstitutional insofar as they purport to confer any jurisdiction whatsoever upon the probate court with respect to the matters and things in said judgment, decree and order, and that said sections violate Section 16 Article V of the Missouri Constitution in that it is not within the power of the legislature to determine that any part of the administration of a testamentary trust is within the scope of “matters pertaining to probate business” as such term is used in said section of the Constitution.

The statutory enactments which are here in controversy are as follows:

“472.020 Jurisdiction of probate court. The probate court has jurisdiction over all matters pertaining to probate business, to granting letters testamentary and of administration, the appointment of guardians of minors and persons of unsound mind, settling the accounts of executors, administrators and guardians, and the sale or leasing of lands by executors, administrators and guardians, including jurisdiction of the construction of wills as an incident to the administration of estates, of the determination of heirship, of the administration of testamentary trusts and of such other probate business as may be prescribed by law. (L.1955, p. 385, § 3.)” (Emphasis supplied.)
“456.225 Testamentary trusts — bond required, when — accounting may be required, procedure.
'J “1. Before rendering any decree of partial or final distribution of any bequest or devise in trust, the probate court, in its discretion, may require any trustee named as distributee in the will creating such trust to file bond, in an amount and with security fixed by the court, conditioned upon the faithful performance of the duties of the trustee, except the court shall not require a bond if the will which creates the trust directs that no bond shall be required of the trustee or trustees. No bond shall be required if the trustee is the surviving spouse of the testator or if the trustee or any cojjrustee of the trust is a corporation and has a certificate of the commissioner of the state of Missouri that it has complied with the provisions of section 363.700, RS Mo.
“2. Upon the written petition of any person shown to be a beneficiary of a trust created by the last will and testament of any deceased person probated in this state, and upon a showing that no verified accounting of the administration of the trust has been made to such, beneficiary or made available upon request within the preceding year, the probate court in which the will was probated may, in its discretion, order the trustee to file in such court a verified written accounting of its administration of the trust covering the period of time ordered by the court.
“3. The probate court decreeing distribution of a bequest or devise in trust has the same jurisdiction of or with respect to the testamentary trust as the circuit court, and its jurisdiction is concurrent with that of the circuit court. Within thirty days after the filing of any cause and before any hearing in the probate court involving the administration of a testamentary trust, any interested party may, upon written motion, require the same to be transferred to the circuit court of the county, and the cause thereafter shall be proceeded upon in all respects as if a probate judgment thereupon had been appealed.
“4. The person petitioning for any judgment authorized by this section shall cause to be served upon all interested persons such notice or process as is required by law and in addition as may be ordered by the court. Before any hearing on any petition authorized by this section the court shall appoint a guardian ad litem to appear on behalf of and represent the interests of beneficiaries of the trust under legal disability, unknown beneficiaries or beneficiaries not then in being, including all persons as may under any contingencies become beneficiaries of or financially interested in the trust estate. The notice to or on behalf of public charitable beneficiaries shall be given to the attorney general of the state. Laws 1961, p. 652, §§ 1-4.”

The constitutional provision with which the foregoing statutes are alleged to be in conflict is as follows:

Section 16, Article V, Constitution of Missouri 1945:

“There shall be a probate court in each county with jurisdiction of all matters pertaining to probate business, to granting of letters testamentary and of administration, the appointment of. guardians and curators of minors and persons of unsound mind, settling the accounts of executors, administrators, curators and guardians, and the sale or leasing of lands by executors, administrators, curators and guardians, and of such other matters as are provided in this constitution.”

The brief of Amicus Curiae, James E. Campbell of Kansas City, Missouri, (contending with respondent) and the joint brief of Amici Curiae, Mercantile Trust Company, St. Louis Union Trust Company and the Boatmen’s National Bank, all of St. Louis, Missouri, (contending with appellant) have been filed by leave of court.

While we believe that the issue here is whether or not the legislature, in enacting these two sections (472.020 and 456.225), has exceeded its authority in granting to the probate court jurisdiction in a completely new field of law not heretofore vested in probate courts and not contemplated by the constitutional grant of power in Section 16, Article V, Constitution of 1945, the parties have discussed extensively the “equitable” powers of the probate court. We shall therefore deal with this matter briefly.

We think there are many matters pertaining to probate business where the probate court may invoke the so-called “plenary” or complete equitable principles to grant full and complete relief in carrying out its function of successfully completing the administration of a decedent’s estate. For example, see Hoffmann v. Hoffmann’s Ex’r, 126 Mo. 486, 29 S.W. 603 (enforcement of an antenuptial agreement between a decedent and his wife, and for accounting of trust funds held by the decedent under the contract); Gentry v. Gentry, 122 Mo. 202, 26 S.W. 1090, 1096 (recovery from the estate of rents and profits pending assignment of dower); Lolordo v. Lacy, 337 Mo. 1097, 88 S.W.2d 353 (discovery of assets from foreclosure sales, held by and commingled with the own funds of the trustee in foreclosure) ; State ex rel. Stetina v. Reynolds, 286 Mo. 120, 227 S.W. 47 (discovery of assets by granddaughter in grandmother’s estate as against the contention that the grandmother held the funds as a trustee). It is apparent that the thread of jurisdiction in these typical cases concerning “equity matters” is tied to what is necessary and practicable in the exercise of the probate court’s powers in matters pertaining to probate business, i. e., the collection and marshaling of assets, including disputed claims as to what is or is not an assét, the allowance of claims, or demands and the proper distribution of the remainder of the estate to the persons entitled thereto. See Downey v. Schrader, 353 Mo. 40, 182 S.W.2d 320 where this court said, “Matters of probate business, as commonly understood and under all the authorities, pertain to the proving of wills, the appointment of guardians and curators, and the administration and settlement of the estates of decedents, incompetents and the like.” See also State ex rel. Kowats v. Arnold, 356 Mo. 661, 204 S.W.2d 254, 257; North v. Hawkinson, Mo., 324 S.W.2d 733, 745 [11].

Whatever inconsistencies appear in the decisions with respect to the equitable powers of the probate court in probate matters would seem to he now resolved by the enactment of Sec. 472.030, providing that the probate court “has the same legal and equitable powers to effectuate its jurisdiction and to enforce its orders, judgments and decrees in probate matters as the circuit court has in other matters * * See Mathews v. Pratt, Mo., 367 S.W.2d 632, 635 [4-6]; State ex rel. Baker v. Bird, 253 Mo. 569, 162 S.W. 119, 122 [2-4]; Peck v. Fillingham’s Estate, 199 Mo.App. 277, 202 S.W. 465, 467 [2-3]; Howard’s Estate v. Howe, 344 Mo. 1245, 131 S.W.2d 517, 520; Stark v. Moffit, Mo.App., 352 S.W.2d 165, 169 [3-6], all to the effect that the probate court (even before the new code) like other courts of law, consider and determine questions of an equitable nature incident to the exercise of its statutory powers.

On the other hand, it is the rule in this state that the circuit courts inherently, traditionally and historically have had exclusive, original jurisdiction in what has been termed “purely equitable matters.” Stark v. Moffit, Mo.App., 352 S.W.2d 165; In re Frech’s Estate, Mo., 347 S.W.2d 224; In re Schield’s Estate, Mo., 250 S.W.2d 151; State ex rel. and to Use of Clay County State Bank v. Waltner, 346 Mo. 1138, 145 S.W.2d 152; Bramell v. Cole, 136 Mo. 201, 37 S.W. 924; Dietrich v. Jones, 227 Mo.App. 365, 53 S.W.2d 1059. (At this time we would take the term “jurisdiction in purely equitable matters” to mean that the matter in the circuit court had no relation originally to the administration of a decedent’s estate, or that such matter in the circuit court originally did not concern the jurisdiction of the probate court in other matters pertaining to probate busi ness.) We consider also that the administration of testamentary trusts has always been vested in the equity division of the circuit court, where grounds have existed for invoking that jurisdiction, and this includes the appointment of successor trustees to the trusts. State ex rel. and to the Use of Kenney v. Johnson, 229 Mo.App. 16, 68 S.W.2d 858, 860 [1], and cases cited; Pilant v. Erwin, Mo.App., 130 S.W.2d 173, 175 [5]; Newton v. Newton Burial Park, 326 Mo. 901, 34 S.W.2d 118, 121 [8, 9]; Rawlings v. Rawlings, 332 Mo. 503, 58 S.W.2d 735; Barksdale v. Morris, Mo.App., 228 S.W.2d 414, 418 [4, 5]. See also, Sec. 14, Article V, Constitution of 1945, which is as follows: “The circuit courts shall have jurisdiction over all criminal cases not otherwise provided for by law, exclusive original jurisdiction in all civil cases not otherwise provided for, and concurrent and appellate jurisdiction as provided by law. Such courts shall sit at times and places in each county as prescribed by law.” (Emphasis added.)

With respect to respondent’s contention that the statutory enactments concerning testamentary trusts come within the constitutional provision, “matters pertaining to probate business,” we believe there is rather clearly a distinction between the subject matter and purposes, above mentioned, of a decedent’s testate estate and the administration of a testamentary trust which comes into being after the estate is distributed and closed and the trust is then independent of any probate court proceedings. There is no longer any purpose to collect and marshal assets, to pay claims and expenses, or to make a distribution other than by the terms of the trust contained in the will. It is at this point that the wishes of the testator become effectual that his trust estate be administered by some named individual or organization for the stated purpose of the trust, and whether or not the same shall be under judicial supervision. While respondent cites 23 Mo.L.R. 113, 147, “By virtue of the administration of an estate, probate court personnel may be expected to have acquired a degree of familiarity with the property interests involved, the trustees (frequently the executors) and the beneficiaries to be protected, which is often difficult of attainment by a circuit court. * * no case has been pointed out to us where our circuit courts have failed in their traditional administration of testamentary trusts, when their jurisdiction thereover has been called into being. However true and salutary are respondent’s claims that such jurisdiction should be in the probate courts, we hold that the attempt here by the legislature to engraft upon the constitutional limitation of power granted to the probate courts in matters pertaining to probate business a jurisdiction over testamentary trusts, as contained in sections 472.020 and 456.225, is a nullity. The supervision and control of testamentary trusts is not included in the matters contained in section 16, Article V of our Constitution, even when liberally construed to give the legislature extensive freedom in implementing the constitutional jurisdiction of probate courts. See In re Mortenson’s Estate, 248 Ill. 520, 94 N.E. 120, where the precise question under a similar constitutional provision was so adjudicated.

It is relevant to note in this connection that the delegates to the 1945 Constitutional Convention did not grant to probate courts any additional jurisdiction than they had under the Constitution of 1875. The provisions of section 34, Article 6, Constitution 1875 were substantially readopted into section 16, Article V, Constitution 1945, with two significant changes: The initial words in the former Constitution, section 34, Article 6, “The General Assembly shall establish in every county a probate court, which shall be a court of record, and consist of one judge, who shall be elected. Said court shall have jurisdiction over all matters pertaining to probate business, * * were changed in the 1945 Constitution to: “There shall be a probate court in each county with jurisdiction of all matters pertaining to probate business, * * then ending with the added words, “* * * and of such other matters as are provided in this constitution.” (Emphasis supplied.) This last clause, we believe, would lend support to the premise that our people, through their duly selected delegates to the 1945 Constitutional Convention, intended to limit and reserve unto themselves any extension or expansion of the jurisdiction of our probate courts, and that the legislature therefore may not add to such jurisdiction beyond what is fairly and reasonably within the term “matters pertaining to probate business.” State ex. rel. York v. Locker, 266 Mo. 384, 181 S.W. 1001, 1003; State ex rel. Cave v. Tincher, 258 Mo. 1, 166 S.W. 1028, 1030 [6].

Since the appointment of respondent as successor trustee of the trust in question by the probate court of Jackson County, Missouri, was based upon the two statutes above set forth, herein declared to he unconstitutional, insofar as they purport to grant jurisdiction to the probate courts over testamentary trusts, such appointment was void, and therefore the judgment is reversed.

PER CURIAM.

The foregoing opinion by PRITCH-ARD, C., is adopted as the opinion of the Court.

EAGER, C. J., and STORCKMAN, DALTON, and HOLMAN, JJ., concur.

HOLLINGSWORTH, P. J., concurs in result.

LEEDY and HYDE, JJ., dissent.


source: Caselaw Access Project

author: PRITCHARD, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Leroy MAXWELL, Appellant.
    No. 49606.
    Supreme Court of Missouri, Division No. 2.
    March 9, 1964.

      Jack L. Koehr, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, George D. Chopin, Special Asst. Atty. Gen., St. Louis, for respondent.
   PRITCHARD, Commissioner.

In this case, which comes to the writer upon reassignment, defendant was charged by indictment and was found guilty by the verdict of a jury for the crime of robbery in the first degree by means of a dangerous and deadly weapon. §§ 560.120, 560.135, RSMo 1959, V.A.M.S. It was also set forth in the indictment that defendant had four prior felony convictions and upon a finding thereof in a hearing conducted outside the hearing of the jury, the court at the close of the trial fixed defendant’s punishment at forty years’ imprisonment. Thereafter, defendant filed his motion for new trial which was overruled. Allocution was then had and defendant was sentenced in accordance with his previously fixed punishment.

Defendant (who was represented by the Public Defender at the trial) has filed no brief in this court and we therefore review all of his properly preserved assignments of error in his motion for new trial. Supreme Court Rule 28.02, V.A.M.R.; State v. Weindorf, Mo., 361 S.W.2d 806, 808 [1].

On November 30, 1961, Hortense Grant was working alone as a clerk in the “Velvet Freeze” ice cream store at Union and Greer streets (3027 Union) in the City of St. Louis. At about 9:30 o’clock that evening one Willie Banks (who was jointly indicted with defendant, Boyd Griffin Gray and Kenneth Butler upon the same charge of first degree robbery) came into the store, bought a nickel bar of candy and walked out the door. Later on defendant (whom Hortense identified at the trial and also in the police line-up on a Monday after the Thursday she was held up) came into the store and up to the counter and said, “This is a stick-up.” He took a shotgun out from under his coat, and hit it down on the counter. About that time Banks (who had bought the candy two or three minutes before) and Butler came in. There were then no customers in the store. Banks and Butler came over behind the counter to get the money and then defendant said, “Don’t take the money out of the drawer; let her take it out.” Hortense then took the money out of the cash register, put it in Banks’ bag and gave it to Banks and Butler, who each had revolvers. Hortense testified that State’s Exhibit 1 (shotgun) was similar to the gun held by defendant and State’s Exhibits 2 and 3 (revolvers) were similar to the ones handled by Butler and Banks on the night of the robbery.

The men then went in the back of the store, ransacked Hortense’s purse and then went out the door. She did not see them again that night, but she did the following Monday at the Central Police Station lineup where she testified, “I saw Banks, Butler and Maxwell, and I can’t ever think of the other boy.” She was sure that the man she saw there in the line-up was the defendant. The following morning Hortense went again to the police station where the defendant told her that he had participated in the robbery; that he had the shotgun in his possession on that day; that he was then with Butler and Banks; and that he (defendant) got around eight or ten dollars in change from her cash register. In the line-up, the only one Hortense did not identify was the person driving the car, whom she did not see on the night of the robbery.

Devolia Cooksey is the manager of the Velvet Freeze store at 3027 Union Street. She testified that she is the only person who had a key to the cash register within the store; that she kept a record of the amounts of money taken in and on December 1, 1961, she made a determination from the cash register receipts that $39.48 belonging to Velvet Freeze had been in it.

George Fritsche of the St. Louis Metropolitan Police Department, with other officers, arrested defendant on December 3, 1961, at 1017 North 22nd Street, and brought him to the Central District where he was placed in holdover.

James Reddick, Supervisor of the Robbery Division of the Police Department, assisted in the investigation of the robbery, during the course of which he talked to defendant and accompanied him to his home on North 22nd Street, where he got two weapons, State’s Exhibits 2 and 3, from defendant’s mother. State’s Exhibit 1, the shotgun, was obtained by Reddick in an apartment at 2209 Division Street.

Kirby Conover of the Police Department assisted Reddick in the robbery investigation. Defendant stated in his presence that on November 30 he was in the company of Gray, Butler and Banks, and they all went to the Velvet Freeze ice cream store at 3027 Union. When they arrived there, Gray was driving and remained in the car. Butler, Banks and defendant, who had a shotgun with him, entered the store where defendant laid the shotgun across the counter pointed at the woman and told her it was a stickup. Butler started to go behind the counter and defendant told him not to do that, but to let the lady get the money. She got the money from the cash register, and the men left the store. Thereafter, the men divided the loot equally — four ways. At the Police Headquarters on December 4, defendant identified the shotgun, State’s Exhibit 1, and said it was the one he had used in the robbery of the Velvet Freeze ice cream store. Defendant’s admission of these facts and his identification of the shotgun used by him were substantiated by the testimony of police officers O’Connell and Spiess.

Assignment No. 1, attacking the submissibility of the state’s case, is overruled. The evidence above set forth clearly establishes all of the elements of first degree robbery with a dangerous and deadly weapon. Under § 560.120, RSMo 1959, V.A.M.S., these elements (as applicable here) include taking the property of another from the person and against the will of his servant, clerk or agent, by putting him or her in fear of some immediate injury to his or her person. Here defendant was positively identified by Hortense Grant as the person who exhibited the shotgun which was admitted by defendant to have been used by him in perpetrating the robbery of the Velvet Freeze store, of which Hortense was an employee or a clerk or agent. She was commanded by defendant to hand over to his accomplices the money in the cash register. It could be clearly inferred that Hortense was in fear of some immediate injury when she was confronted by these men and in the face of a shotgun. Nothing more need be said. See State v. Churchill, Mo., 299 S.W.2d 475, 478 [2-9]; State v. Foster, Mo., 349 S.W.2d 922, 923 [3].

Assignment No. 2 deals with the propriety of the trial court’s action in giving paragraph 4 of Instruction No. 2, which is:

"If, upon consideration of all the evidence, you have a reasonable doubt of the defendant’s guilt, you should acquit, but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant’s guilt and not a mere possibility of defendant’s innocence.”

Defendant claims that the inclusion of the words “but a doubt to authorize an acquittal on that ground ought to be a substantial doubt” is error in that the word “substantial” denotes to the jury, and has been perverted by common usage, to mean a large amount or a great deal. We take this to mean that the claim is that a “substantial” doubt would require more evidence to support than a “reasonable” doubt. The claim is without merit. The precise question was ruled in State v. Cheatham, Mo., 340 S.W.2d 16, 20 [10], where the court said, “It has often been recommended that reasonable doubt instructions follow the exact language of the statutes (53 Am.Jur., Sec. 750, p. 560) but the mere description ‘substantial’ doubt has been frequently employed if not coupled with other language such as a ‘well-founded doubt.’ (Citing authority) But as to the specific objections urged here it has been held that the language does not render the instruction contradictory or argumentative and does not ‘whittle away’ or minimize the defendant’s rights and the presumption of innocence.” See also State v. Velanti, Mo., 331 S.W.2d 542, 545 [4], Assignment No. 2 is overruled.

Assignment No. 3 that “The verdict of the jury was against the weight of the evidence” is too general to preserve anything for review. Supreme Court Rule 27.20, V.A.M.R. It is therefore overruled.

By assignment No. 4 defendant claims that the verdict of the jury was against the weight of the evidence in that Hortense Grant testified that all four defendants were in the police line-up when she made a positive identification, whereas all the police officers who participated in arranging the line-up testified that at no time were all four defendants in the same group. Such claim is completely without merit. Any discrepancy in Hortense’s testimony (when compared to that of the officers) as to her observations would go merely to the weight and credibility of her testimony which was for the jury to determine. Assignment No. 4 is overruled.

The sentence of the court was for forty years’ imprisonment of defendant In assignment No. 5, defendant’s claim is that this is “such to constitute cruel and unusual punishment which is against the Constitutions of the United States and the State of Missouri.”. The assignment is too general to comply with said Supreme Court Rule 27.20. Nevertheless, this sentence for the crime of robbery with a dangerous and deadly weapon is well within the permissible limits of § S60.13S, RSMo 1959, V.A.M.S., of not less than five years up to life imprisonment inasmuch as the death penalty was not requested in this case. Assignment No. 5 is overruled.

Defendant (by admissions) identified the shotgun, State’s Exhibit 1, and stated it was the one used by him in the robbery. The two revolvers (State’s Exhibits 2 and 3)' were taken from the home of defendant’s mother by the investigating officers at a time when defendant was with them. Hortense Grant testified the shotgun and the revolvers looked like the ones used by defendant and his accomplices. See State v. Johnson, Mo., 286 S.W.2d 787, 791 [3, 4], a similar case, in which it was held that identification need not always be wholly unqualified in order to make the evidence admissible. Defendant’s assignment No. 6, raising the point of the admissibility into evidence of these three weapon's, is overruled.

Defendant orally requested the trial court to give an instruction concerning his failure to testify. By assignment No. 7 he contends the court erred in refusing to so instruct the jury. Defendant offered no instruction covering the subject, and for this reason and for the further reason that it is not error to refuse such an instruction, the trial court did not err. See State v. Denison, 352 Mo. 572, 178 S.W.2d 449, 455; State v. Rutledge, Mo., 267 S.W.2d 625, 626; § 546.270, RSMo 1959, V.A.M.S.

By assignment No. 8, defendant contends error was committed by the trial court permitting counsel for.the state -to remark in his closing argument, “‘Did, the-defense offer any testimony that he was. somewhere else at the time of this occurrence.’ ” The ground of the contention-is that this is a comment upon defendant’s, failure to testify and is violative of the-provisions of said Section 546.270 and defendant’s constitutional right not to be required to testify against himself in that the statement is an indirect reference thereto. We do not deem the remark to be a reference to the fact that the accused did not testify. See State v. Hayzlett, Mo., 265 S.W.2d 321, 322 [2]; State v. Cox, Mo., 352 S.W.2d 665, 670 [7, 8]. Assignment No. 8 is overruled.

In his last assignment of error (No. 9), defendant complains of the argument of counsel for the state in the statement referring to defendant as “ ‘the ringleader of the gang. There is a man experienced, taking advantage of youthful foolishness’ ”. This assignment is overruled for the reason that there was evidence that the other three accomplices were younger than defendant; and that defendant at the time of the perpetration of the robbery gave directions to the others. These matters would establish a legitimate-inference that defendant' was the ring-, leader, and therefore counsel for the state-could properly comment thereon. State v. Feger, Mo., 340 S.W.2d 716, 728. Assignment No. 9 is overruled.

We note from reading the record that after the verdict was rendered' upon the submitted issue of the guilt or-innocence of the defendant, the trial court preliminarily fixed the punishment in the-presence of the jury and also explained to. it this procedure. Such practice is to be discouraged. The purpose of the Habitual Criminal Act, Section 556.280; RSMo 1959, V.A.M.S., is to keep the matter of previous convictions of felony offenses from the jury, leaving the matter of th.e sentence to. be imposed within .the permissible limits, for the particular offense to. the-trial judge. , State v. Morton, Mo., 338 S.W.2d 858. The procedure in -the.instqnj: casq is fraught-i with possibility that m other subsequently tried habitual criminal cases some of the same members of the jury, knowing this procedure, will take into account that the accused has a criminal record in arriving at a verdict of guilt or innocence. The proper procedure is to take up the matter of' the ■punishment to be imposed after the jury’s verdict is received and outside of its hearing. The matter of such punishment under the Habitual Criminal Act is of no concern .to the jury.

We have examined other matters upon the record before us in accordance with the provisions of Supreme Court Rules 28.02 . and 28.08, V.A.M.R., and we find no error.

The judgment is affirmed.

BARRETT and STOCKARD, CC., con- . cur.

PER CURIAM.

The foregoing opinion by PRITCHARD, <U., is adopted as the opinion of the Court.

.All of the Judges concur.


author: EAGER, Judge.

text:
    George W. SISK and Rosemary B. Sisk, Respondents, v. J. M. MOLINARO, Appellant.
    No. 50255.
    Supreme Court of Missouri, Division No. 2.
    March 9, 1964.

      Walter A. Raymond, Kansas City, Fred Mancuso and Raymond, West & Cochrane, Kansas City, of counsel, for appellant.
    Albert Thomson, Robert W. Cook, Kansas City, Linde, Thomson, Vandyke, Fair-child & Langworthy, Kansas City, of counsel, for respondents.
   EAGER, Judge.

Plaintiffs, husband and wife, filed suit in Jackson County against Dr. J. M. Molinaro. Under the circumstances, we find it necessary to digest the pleadings in some detail. By an amended petition plaintiffs alleged: that they had given defendant on February 24, 1961, a written option to purchase certain described land in Belton, Cass County, Missouri, for $60,000, of which $1,000 was paid down; that it was provided therein that if defendant exercised the option he would pay an additional $29,000 in cash, the balance to be represented by a note and deed of trust, with $15,000 payable in one year from date of deed, and the balance in two years; that defendant was required to exercise the option on or before June 2, 1961, but that he requested and was granted an extension to June 10, 1961; that defendant did exercise the said option and on or about June 10, 1961, he deposited his check for $29,000 with Kansas City Title Insurance Company; that plaintiffs agreed to the substitution of title insurance in lieu of an abstract of title, and that on or about June 14, 1961, they deposited with Kansas City Title Insurance Company an executed warranty deed to the property, together with a note and deed of trust to be executed by defendant; that plaintiffs had complied with all requirements obligatory upon them, but that defendant had failed and refused to sign the note and deed of trust or to complete the transaction; that plaintiffs had no adequate remedy at law; they prayed a decree “providing for the specific performance of said option agreement, interest, costs and damages, including a reasonable attorneys’ fee, and for such other orders and decrees as may be proper under the circumstances.” (There were also allegations to the effect that a preliminary title opinion showed a “shortage of 5 feet” in the description of the property but that defendant, being fully aware of this, procured an extension of the option and made his deposit, and that the shortage was thereafter rectified.)

Defendant alleged in his answer: that plaintiffs had agreed in writing to furnish defendant good and merchantable title and had failed to do so, in that a strip of ground 20 feet in width was “not included in said description,” and that upon written notice plaintiffs had failed to correct “said deficiencies” ; that plaintiffs had breached “their contract,” that defendant’s deposit of $1,000 should be returned, the contract declared void, and defendant discharged. For a “Counter Claim and Cross Petition” defendant alleged that plaintiffs had failed to deliver merchantable title within thirty days or within a reasonable time thereafter “as plaintiffs had contracted to do,” and that he had suffered damage; that he had, “in the presence of plaintiffs’ agents * entered into a contract to “lease and sell” the property but had been unable to perform; wherefore, defendant prayed judgment against plaintiffs for $25,000 and his costs.

In a reply to the counterclaim, plaintiffs denied all its allegations and asserted that it failed to state a cause of action upon which relief could be granted.

The case was tried by the court as in equity. It was shown that a preliminary title insurance commitment, issued on May 16,1961, to the interested real estate agent or broker, disclosed that a strip 25 feet wide along one side of the land had been deeded to the county for road purposes, whereas only five feet was intended. Eventually this error was corrected by an ordinance of the City of Belton vacating the excess 20 feet, but not until the latter part of August, 1961. In the meantime, an extension of the option had been granted and defendant had made a deposit of $29,000 with the Title Company on or about June 12. The principal issues tried were whether or not the acts of defendant constituted an acceptance of the option so as to create a binding contract, and, if so, which party had breached it; also, if plaintiffs had breached the contract, whether defendant had suffered damages. In the view we take of the case it will be unnecessary to develop all these matters.

In the decree entered on March 11, 1963, the trial court found the issues in favor of plaintiffs and against the defendant, found that “the plaintiff(s) is entitled to a decree of specific performance as prayed” with respect to the real estate specifically described in the decree; and thereupon the Court ordered and decreed: 1. That plaintiff (s) have judgment for $64,295 with interest from the date of judgment and have execution therefor; 2. that upon full satisfaction of the judgment, title to the real estate so described “be and it is hereby vested in defendant to the same extent as if plaintiff (s) had executed, acknowledged and delivered to defendant a warranty deed conveying the said real estate to the defendant"; 3. that defendant might satisfy the judgment by paying the sum of $48,620 in cash and executing and delivering a note for $15,000 payable on June 14, 1963, with interest from June 14, 1962, secured by a deed of trust on the real estate; 4. that defendant should recover nothing on his counterclaim and cross petition; 5. that defendant pay the costs.

After his motion for a new trial was overruled, defendant appealed.

Appellant has raised, first, the question of the trial court’s jurisdiction over the subject matter, the suit being in Jackson County and the land being situated in Cass County. Defendant’s counsel objected to the introduction of evidence on this ground, and the question was preserved in the motion for new trial. Our Rule 55.43, V.A.M.R., provides that such a defense is not waived by a failure to plead it, and it is very generally considered that the defense of jurisdiction over the subject matter may not be waived. We proceed to consider this question.

Section 508.030, RSMo 1959, V.A. M.S. is as follows: “Suits for the possession of real estate, or whereby the title thereto may be affected, or for the enforcement of the lien of any special tax bill thereon, shall be brought in the county where such real estate, or some part thereof, is situated.” Although the section appears among our venue statutes it has definitely been held that its provisions are mandatory and cannot be waived. We so held very recently in March v. Gerstenschlager, Mo., 322 S.W.2d 743; see also: Kansas City v. Cain, Mo.App., 319 S.W.2d 266; Stoops v. Stoops, 363 Mo. 1075, 256 S.W.2d 799; Howell v. Reynolds, Mo., 249 S.W.2d 381; State ex rel. Minihan v. Aronson, 350 Mo. 309, 165 S.W.2d 404. The question which ordinarily arises in cases where the jurisdiction is thus questioned is: will (or does) the judgment directly affect or operate directly upon the title to real estate so as to involve title, or is the suit one primarily involving personal jurisdiction and only collaterally affecting the title to real estate?

In sundry specific performance cases we have held that title to real estate was involved within the meaning of Article 5, § 3-of our Constitution which fixes the jurisdiction of this Court. Barr v. Snyder, Mo., 294 S.W.2d 4; Beets v. Tyler, 365 Mo. 895, 290 S.W.2d 76; Domyan v. Dornin, Mo., 356 S.W.2d 70. The pertinent provision of the Constitution is: “involving * * * the title to real estate * * The statutory provision is: “[s]uits for the posses•.sion of real estate, or whereby the title ■thereto may be affected * *

It was held long ago in Ensworth v. Holly, 33 Mo. 370, that the Court of Common Pleas ■ of Buchanan County had no jurisdiction in .a suit for the specific performance of a contract for the sale of land located in Gentry .and Holt Counties. This Court quoted the then statute which provided that: “Suits • concerning real estate, or whereby the same may be affected, shall be brought in the county within which such real estate is situate”; it then said: “Surely this was a suit which concerned or affected real estate. Its only object was the legal title to the 'lands in controversy.”

In Castleman v. Castleman, 184 Mo. 432, 83 S.W. 757, suit was filed in Cooper County to set aside two deeds; the land was 'located there and summons to defendant was issued to the City of St. Louis. In considering an objection to the jurisdiction, the Court said, 83 S.W. loc. cit. 758: “Appellant •'is correct in his general proposition that a court of equity acts in personam. And, •since the suit is personal in its character, it must seek the person to be affected in the county of his residence, regardless of where the thing in controversy may be State ex rel. [Delmar Jockey Club] v. Zachritz, 166 Mo. [307], 313, 65 S.W. 999, 89 Am.St.Rep. 711. But our statute has ingrafted one exception to that rule. Section 564, Rev.St. 1899: ‘Suits for the possession of real estate, or whereby the title thereto may be . affected, shall be brought in the county within which such real estate, or some part thereof, is situate.’ Title to real estate is directly affected in this suit. By the decree .appealed from, the appellant is divested of -title, and the plaintiff invested with the same. Keyte v. Plemmons, 28 Mo. 104; Ensworth v. Holly, 33 Mo. 370; Hannibal, etc., Ry. [Co.] v. Mahoney, 42 Mo. 467. Since the law requires the suit to be brought in the county in which the land lies, it follows that the summons may be sent to any county in the .state where the defendant resides or may be found.” See also, generally, Brown v. Woody, Adm., 64 Mo. 547.

In Falder v. Dreckshage, Mo.App., 227 S.W. 929, a suit to enforce the specific performance of a contract for the sale of land located in Colorado, the Court said, loc. cit. 934: “Plaintiff doubtless proceeded upon the general doctrine that courts of equity act in personam; and that since the court had jurisdiction over the person of the defendants, it had jurisdiction to compel them to specifically perform the terms of the contract in suit, should the proof show that plaintiff was entitled to such relief. But a statute of this state is to be reckoned with in this connection, viz., section 1753, Rev.Stat.1909 (section 1179, Rev. Stat.1919), which provides that—

“ ‘Suits for the possession of real estate, or whereby the title thereto may be affected, shall be brought in the county within which such real estate, or some part thereof, is situated.’

“And in an early case the Supreme Court held that a suit for the specific performance of a contract for the sale of real estate must be brought in the county in which the land is situated. Ensworth v. Holly, 33 Mo. 370. And in this connection, see Castleman v. Castleman, 184 Mo. 432, 83 S.W. 757; State ex rel. [Hunt] v. Grimm, 243 Mo. 667, 148 S.W. 868.” The Court then quoted from 25 R.C.L. 324, § 141, a statement that at times an equity court may decree specific performance of land located in another county or state, acting strictly in personam, notwithstanding the existence of a local venue statute; but the Court then made the following pertinent comment: “It seems that our Supreme Court has not taken this view as to the effect of our statute, supra.” See, also, State ex rel. Hunt v. Grimm, 243 Mo. 667, 148 S.W. 868, in which the Court reaffirmed the Missouri requirement of local venue in a suit for the cancellation of a deed, and approved the case of Castleman v. Castleman, supra.

In State ex rel. Gavin v. Muench, 225 Mo. 210, 124 S.W. 1124, it was held that title to real estate was involved in a suit to enjoin the obstruction of one-half of an unopened street, defendant claiming title thereto; and the courts of the City of St. Louis were denied jurisdiction, since the land lay in St. Louis County. There also the Court, discussing at some length the extent of equity’s jurisdiction in personam, held that our statute (a predecessor of § 508.030) constituted an exception to that general rule of equity jurisdiction in those cases where title to real estate was the subject of the controversy and where the title would be directly affected.

In Galloway v. Galloway, Mo., 169 S.W. 2d 883, the original suit was one in partition filed in the county where the land was situated. After a change of venue the plaintiffs were permitted to add a count seeking the cancellation of a deed, and the objection of a lack of jurisdiction over the subject matter was then made. The value of this decision in the present case is that, while the Court held that the jurisdiction on the transfer was adequate, it cited and expressly approved the cases of Castleman, Brown and Ensworth, cited supra, saying that: “There can be no doubt of the correctness of decision of these cases.” (169 S.W.2d loe. cit. 887.)

We note here that in the following cases jurisdiction was held to lie exclusively in the court of the county where the land was situated: March v. Gerstenschlager, supra (suit to declare a trust in land which had been conveyed); Howell v. Reynolds, Mo., 249 S.W.2d 381 (cancellation of a deed of trust for fraud); Stoops v. Stoops, 363 Mo. 1075, 256 S.W.2d 799 (suits to set aside deeds); Marston v. Catterlin, 290 Mo. 185, 234 S.W. 816 (suit seeking conveyance of land in another county). From a jurisdictional standpoint, there would seem to be little difference between a suit to declare a trust in land, a suit to cancel a deed, and a suit for specific performance of a contract to convey real estate.

Arguing that the Court had jurisdiction,, plaintiffs say that this suit is not one affect' ing title to real estate, but merely one to-“require the defendant, as purchaser of certain real estate, to pay the purchase-price * * also, that the judgment-is a money judgment, and that the issue-tried was that of “compliance or noncompliance with a written contract.” More of that later. Proceeding, counsel cite, as illustrating the propriety of the jurisdiction-, here: State ex rel. Brinkman v. McElhinney, Mo., 216 S.W. 521; State ex rel. Maxwell Inv. Co. v. Huck, Mo., 240 S.W. 236; Sanders v. Savage, 234 Mo.App. 9, 129 S.W.2d 1061; Hewitt v. Price, 204 Mo. 31, 102 S.W. 647, 120 Am.St.Rep. 681; State ex rel. South Missouri Pine Lumber Co. v. Dearing, 180 Mo. 53, 79 S.W. 454;. and, indirectly, Robinson v. Field, 342 Mo. 778, 117 S.W.2d 308. We discuss these-briefly. In McElhinney it was held that the suit was essentially one for an accounting and not for the declaration of a constructive trust; so that, an adjudication of the interests of the parties in land which-had been held as tenants in common was. merely a part of the accounting. In Huck,. the essential claim was that a note secured by deed of trust had been fully paid, and' that it should be cancelled, along with the-deed of trust which secured it. That, at most, was a suit for an accounting and,, as the Court said, it did not even remotely involve title to real estate, since the validity of the deed of trust was in nowise questioned. The Savage case is so far removed on its facts that it does not merit-discussion. Dearing, supra, was a suit by a corporation against its “promoters,” alleging that an excessive price had been-charged for the corporate real estate, the-purchase being secured by deed of trust;, the plaintiffs sought an accounting, damages, and the cancellation of the notes.. The Court held that, while the controversies grew out of the sale of lands situated in other counties, the suit was one-strictly in personam; also, that a mere prayer for the cancellation of the notes and! to enjoin, a foreclosure did not, per se,. .affect the title to real estate. The Court recognized that our statute (now § 508.030) ■does apply in those cases where “title to land is the subject of the controversy, and in which the judgment will operate directly upon the title * * The last of the cases mentioned above is Robinson v. Field, 342 Mo. 778, 117 S.W.2d 308; concerning that case, the Court said in March v. Gerstenschlager, at 322 S.W.2d loc. cit. 744: “In the Robinson case the question of title was essentially eliminated as a controverted issue and the case was converted into a personal action for an accounting.” We note here that the case of Rice v. Griffith, 349 Mo. 373, 161 S.W.2d 220, should no longer be considered as an authority to the effect that § 508.030 announces a rule of venue which may be waived, in so far as a pending case may directly involve the title to real estate. The facts of that case may distinguish it. March, supra.

This rather laborious review of the authorities has probably been just as tiresome to the writer of this opinion as it will be to its readers. However, we have sought thereby to glean some rule of action for future guidance. It is entirely possible that not all of the cases may be reconciled.

In a personal action, such as one for an accounting or to declare notes paid, the pleadings and issues may be so developed as to properly require an equity court to enter a judgment collaterally affecting real estate in another county, in order to determine and adjudicate fully the rights of the parties. Howell v. Reynolds, Mo., 249 S.W.2d 381, 384. In any action which has for its primary purpose and object a judgment directly affecting the title to real estate (or in which the judgment does so), then § 508.030 is applicable, and the suit must be filed in the county where the land is situated. As already illustrated, this latter class of actions includes suits to declare trusts in realty, to cancel deeds to realty, to contest wills devising realty, to impose easements on realty, and to enforce specific performance of contracts to convey realty. Somewhat loose language has occasionally been used in the cases with reference to the broad powers of equity to act in personam. See, for instance, the concluding dicta in Olney v. Eaton, 66 Mo. 563, loc. cit. 567. We have previously held that § 508.030 creates an exception to those broad powers in cases where the statute is properly applicable, and we reaffirm that ruling now.

The remaining question is whether this suit is actually one directly affecting the title to real estate. It was particularly filed as a suit for specific performance; it was tried largely on the issue of who had breached the alleged contract, and thus, whether the plaintiffs had the right to specific performance; the Court found the issues for plaintiff(s) and specifically found that “plaintiff (s) is (are) entitled to a Decree of specific performance as prayed in plaintiff's Petition, with respect to the following described real estate, to wit * *.” (Here the land was described.) Thereupon the Court ordered (1) a judgment in the sum of $64,295 with interest; (2) that, upon satisfaction of the judgment, title to the real estate "be and it is vested in defendant to the same extent as if plaintiff (s) had executed, acknowledged and delivered to defendant a Warranty Deed’’ conveying it; (3) that defendant might satisfy the judgment by paying $48,620 in cash and the balance by note and deed of trust; (4) that defendant recover nothing on his counterclaim; (5) costs taxed to defendant; and (6) that the Court retained jurisdiction to carry out its orders.

It is perfectly obvious that this is not an ordinary money judgment. In any specific performance decree there must be an order for payment; in fact, it was said long ago that the Court should find the amount due and “upon the payment of the same into Court for the plaintiff” award a decree for the title. Webb v. Toms, 86 Mo. 591. Here the Court merely elected to enter the order for payment in the form of a money judgment, but, upon payment of the required sum, title to the real estate was made to vest automatically in the defendant without the necessity of a deed. This judgment is in substantial compliance with § 511.280, which provides that: “* * * where judgment is given for the conveyance of real estate * * * the court may, by such judgment, pass the title of such property, without any act to be done on the part of the defendant.” The present judgment, with an endorsement of satisfaction, could be recorded as a transfer of the title. It is difficult to see how a judgment might more directly affect title. If defendant pays the judgment, the title vests in him. If he does not pay, execution will be issued for $64,295, with interest and costs. In our view this can hardly be considered as providing a voluntary alternative to the transfer of title; if it be such, it is nevertheless so coercive as to amount to an enforcement of the performance. State ex rel. Place v. Bland, 353 Mo. 639, 183 S.W.2d 878. In that case the Court said in part, 183 S.W.2d loc. cit. 884: “Both alternatives in the trial court’s decree were based on the theory that relator was legally obligated by his contract to purchase the land. He resisted both alternatives and still does here. Since the decree ordered specific performance of his contract to purchase the land from respondent, it cannot be denied that title was that far involved. And while the decree was expressed to operate contingently, yet if the alternative was (as it might be) so onerous as to be coercive, in practical effect it amounted to enforcing performance. * * * We think these decisions and sound reason show that title is involved where it is taken from one and vested in another even subject to a contingency.” In the present case the Court has retained jurisdiction for the purpose of insuring that its orders be complied with. We do not know whether this particular form of judgment was devised by counsel or by the Court, but to permit it to be considered as a mere personal judgment, as plaintiffs suggest, would simply be an evasion of its true nature. Plaintiffs sought a decree of specific performance and this judgment is, in fact and in law, a decree of specific performance.

The trial court had no jurisdiction of the subject matter. The judgment is reversed and the cause remanded with the direction that the case be dismissed without prejudice.

STORCKMAN, P. J., and HUNTER, Special Judge, concur.

LEEDY, J., not sitting.


author: HOLLINGSWORTH, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Robert PICKEL and Lewis Proffit, Appellants.
    No. 50303.
    Supreme Court of Missouri, Division No. 1.
    March 9, 1964.

      Thomas F. Eagleton, Atty. Gen., Louis C. DeFeo, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    No attorney for appellant.
   HOLLINGSWORTH, Presiding Judge.

Defendants, imprisoned in the state penitentiary under sentences imposed in the Circuit Court of Jasper County, Missouri, following their pleas of guilty to three allegedly jointly committed felonies, seek by motion filed under the provisions of S.Ct. Rule 27.26, V.A.M.R., to vacate and set aside the sentences thus imposed. Upon examination of the motion to vacate and set aside said sentences and the files and records in said cases, the trial court denied said motion without hearing, from which order defendants have appealed. Jurisdiction of said appeal is vested in this court. S.Ct. Rules 27.26 and 28.03.

The transcripts (one in each of the six cases) herein filed on appeal show that on the 4th day of January, 1960, the trial court appointed counsel for each of the defendants and that on said date they were formally arraigned and each entered pleas of guilty to the following crimes:

(1)burglary of the dwelling house of Guy Wearing and Georgia Waring in Jasper County on or about the 19th day of November, 1959, and the stealing therefrom of personalty owned by said Warings of the aggregate value of $2,000;
(2) burglary of the office building of' one C. J. Bulger in Jasper County oni or about the 23rd day of November, 1959, and the stealing therefrom of' personalty owned by said Bulger of the aggregate value of $64.60; and:
(3) stealing from C. J. Bulger in. Jasper County on or about the 23rd day-of November, 1959, a 1953 Plymouth: automobile of the value of $495.

Sentencing of each defendant was deferred until January 18, 1960. On that date-defendant Pickel appeared in person and1 with his court-appointed attorney, Mr. Jaclc Burress, and defendant Proffit appeared im person and with his court-appointed attorney, Mr. Dalton DeShazer. Each defendant was granted allocution and each was-sentenced to imprisonment for a term of four years for burglary and four years for-stealing in the Waring case, to run consecutively, and to be reduced by 54 days for the time spent by each defendant in jail prior to sentence. Each was further sentenced-to imprisonment in the penitentiary for a term of four years for burglary and four-years for stealing in the Bulger office building case, each four-year sentence to» run consecutively and to commence at the-expiration of the sentence imposed upon-each defendant in the Waring case. Each was also sentenced for the stealing of Bul-ger’s Plymouth automobile to imprisonment for a term of five years, said sentence to> run concurrently with the sentences consecutively imposed upon him in the Bulger burglary and stealing case.

The motion to vacate and set aside these-sentences is based primarily upon the following three contentions:

(1) That certain armed policemen of Oklahoma City, Oklahoma, on the night of November 25, 1959, without any warrant for the arrest of defendants, forcibly entered a home in said city in which defendants were sleeping and forcibly and unlawfully arrested defendants and unlawfully-searched said home and seized personalty therein for use in evidence against defendants, in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States and Article I, § 15, of the Constitution of Missouri, V.A.M.S.; and that in fact no warrant was issued for the arrest of defendants or either of them until December 29, 1959.
(2) That defendants were denied the benefit of counsel in their preliminary hearing and arraignment, in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States and Article I, § 18(a), of the Constitution of Missouri.
(3) That the pleas of guilty entered by defendants were obtained by coercion, in violation of the Fourteenth Amendment to the Constitution of the United States.

The motion further alleges that following arrest without warrant by the Oklahoma police officers defendants were taken to an Oklahoma jail and there informed that they were wanted by the sheriff’s office in Joplin, Missouri, on a charge of burglary, the commission of which defendants denied and that they then and there waived extradition to Joplin, Missouri, “so as to prove their innocence.” The motion further alleges that even though the court did appoint counsel to represent them on the day of their arraignment, January 4, 1960, defendants nevertheless were not allowed to consult with counsel except for approximately ten minutes just before the court pronounced sentence and judgment on January 18, 1960.

Certain duly certified “Supplemental Transcript(s) on Appeal”, filed in this court on January 14, 1964, contain a joint affidavit of defendants in which they (quoting verbatim) state:

“On or about the 30th day of Novem-her 1959 affiants were prisoners of the Jasper County Sheriff’s Department, affiants were taken into a room of the foresaid department where they were confronted by a Mr. Paul Archer, who is a member of the Jasper County Sheriff’s Department. (Deputy)
“This officer began questioning af-fiants about some burglaries that had according to this officer been committed in Jasper County, Missouri. Af-fiants denied any knowledge whatsoever of any burglaries, and that they did not - wish to be questioned about any. That they wanted to call a lawyer. Mr. Archer informed affiants that they would call a lawyer when he was ready to let them and not until then. There was two other large individuals (male) in the room who had on their shirts, law enforcement badges. Their names are unknown to affiants. After a period of approximately 30 minutes steady questioning by Mr. Archer, there was given to af-fiants a beating with rubber truncheons. Affiant Proffit tried to defend himself and for his efforts he will carry to his grave the scars upon his head that were inflicted by a Mr. Paul Archer with a gun butt, (pistol). Affiants were returned to jail and for the next two weeks these interrogations were carried out on nearly every night, and at every time your affiants requested that they be allowed to call a lawyer. This was consistently denied affiants by Mr. Archer. At the end of one of the interrogations, affiants were told that if they would cooperate and answer the questions and admit their guilt, that they would be left alone and that the Sheriff’s office would see that the Judge was lenient.
“After about a three day interval, af-fiants were taken again to a room of the Sheriff’s Department, and were there confronted with two men and two women. One of the men was Mr. Paul Archer. The other identified himself as being from the Juvenile Department of Jasper County. One of the women was a Mrs. Doris Jean Kriger, who is the sister of affiant Profit and is a personal ‘friend’ of affiant Pickel. The other woman identified herself as being from the County Welfare Department. Mrs. Kriger had with her a little girl of the then approximate age of 3 or 4 years. This little girl was the daughter of Mrs. Kriger, who was separated from her husband and who was drawing welfare from the County and State Welfare Department for the support of herself and her little daughter. Affiants noticed that Mrs. Kriger had been crying and affiant Profit asked her what was the matter. Mrs. Kriger said, ‘they are going to take my little girl away from me and * * * PUT HER IN A HOME, and they have made me a witness for the state and have told me that they can have me arrested and put me in prison.’ Affiants then demanded from Mr. Archer an explanation of this. Mr. Archer said, ‘We know that you two have been hanging out around Mrs. Kriger’s house and that you are as guilty as you can be of this. We have found some things in Mrs. Kriger’s home that we know you took from Mr. Guy Waring’s home when you broke into it.’ Affiants plainly told Mr. Archer this was a lie and to quit bothering Mrs. Kriger. Then Mr. Archer explained that all the Sheriff’s office had to do was to file a complaint with the Welfare Department and the Juvenile Department and that the little girl would definitely be taken from Mrs. Kriger, and that the Court did not approve of a child being raised in a home where ex-convicts hung out, and that the State did not cater to paying out the taxpayers money to such a case as Mrs. Kriger’s but if the affiants would just quit lying and tell the truth and make a statement admitting their guilt that the Sheriff’s office would not file a complaint and that they would let the little girl stay with its mother, and allow Mrs. Kriger to have another chance and that the Welfare Department and Juvenile Officer was willing to give Mrs. Kriger a chance to prove she could be a good mother to the little girl. That he had explained that Mrs. Kriger had been subjected to the influence of a couple of felons who should have the decency to keep Mrs. Kriger out of this. That all they had to do was act like men and take their punishment for stealing other people’s property, and that as far as calling a lawyer that the affiants had no money and that the state did not have to furnish anyone with a lawyer except in a capítol offense, but to not worry that if they would come clean and admit their guilt that he (Mr. Archer) would talk to the Judge and recommend that a light sentence be given in exchange for a little cooperation. That he and the Judge was good friends. Affiants were then returned to their cells, and the following night Mr. Archer again called them to his office where an oral statement was given by affiants, same being recorded on a tape recorder. * *

The truth or falsity of the foregoing charges obviously have a direct bearing upon the merits of defendants’ motion and defendants are entitled to a full hearing thereon as provided in Rule 27.26. Consequently, the order denying the motion without hearing must be set aside, to the end that the trial court may cause notice of said motion to be served on the prosecuting attorney and the motion to be heard on its merits; that defendants be granted writs of habeas corpus ad testificandum as prayed in the motion; and that they have such other process as may be necessary to a full hearing of the motion on the merits. As stated in State v. Herron, Mo., 376 S.W.2d 192, when charges such as are here made, and are not on their face so patently without foundation as conclusively to demonstrate their want of merit, they must be heard by the trial court in accordance with Rule 27.26 and the proceedings and testimony taken at the hearing preserved for appellate review. See also State v. Moreland, Mo., 351 S.W.2d 33, 35[1], [2, 3], [4].

The cause is reversed and remanded for further proceedings consistent and in accordance with the views herein, and more fully in State v. Herron, supra, expressed.

All concur.


text:
    CITY OF ST. LOUIS, a Municipal Corporation, Appellant, v. James E. CROWE, Herman Willer, Arthur K. Atkinson, and E. Kenneth Hagemann, comprising the Board of Election Commissioners of the City of St. Louis, Defendants-Appellants, Thomas F. Eagleton, Attorney General, Intervenor-Respondent.
    No. 50032.
    Supreme Court of Missouri, Division No. 2.
    March 9, 1964.

      Thomas J. Neenan, City Counselor, David S. Hemenway, Assoc. City Counselor, St. Louis, for plaintiff-appellant.
    Samuel H. Liberman, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, for defendants-appellants.
    Thomas F. Eagleton, Atty. Gen., Joseph Nessenfeld, Asst. Atty. Gen., Jefferson City, for respondent.
   PRITCHARD, Commissioner.

In this Declaratory Judgment Action plaintiff, City of St. Louis (hereinafter called “City”), sought to have a judicial ponstruction of Section 121.100(4) (all statutory references are to RSMo 1959, V.A. M.S.) as it relates to the listing of candidates for the offices in primary elections upon the spaces of the voting machines used in that city, as such a construction might bear upon the contemplated action of the members of the Board of Election Commissioners (hereinafter called “Board”) in purchasing adapters at an estimated cost of $270,000 to the City for its voting machines to permit votes thereon to be registered for candidates listed in a vertical, single column under the party designation on the ballots for primary elections. It is now and was the position of the Attorney General in an opinion (dated December 20, 1961), which the Board states it will follow, given to the Honorable John M. Dalton, Governor of the State of Missouri, that said statute requires a listing of candidates in a vertical, single column “in the order of filing” and that any other manner is unlawful. There are only fifty vertical spaces which may be utilized on the Shoup voting machine used by the Board, and if more than fifty candidates file, then there will be insufficient vertical levers on the machine to permit the voter to vote for the candidate of his choice. The adapters for the machine will permit such voter selection if candidates are arranged in a single, vertical column in the order of filing.

The trial court dismissed plaintiff’s petition upon the grounds that the question is moot; that the parties agree that in the hypothetical event that filing candidates, exceed the number of available spaces on the machine it would be legal for the Board to arrange names in two vertical columns, and that the only substantial question is whether the Board would have a discretionary right to do so; that it is entirely speculative and hypothetical whether the total, number of candidates will exceed the available spaces in a single, vertical column,* that there is no controversy between the parties which is appropriate for judicial determination and that any declaratory judgment herein would constitute no more than an advisory opinion which would not he binding upon future candidates; and for the foregoing reasons, in the exercise of its discretion, the court has determined that mo judgment should be entered herein.

The matters of fact alleged in the petition of the City and admitted by the Board and the Intervenor are as follows: The City is a constitutional charter city. The Board is authorized and has the duty to conduct elections in the city, including primary elections. The City is obligated under Section 118.130 to pay costs incurred "by the Board in the conduct of elections at which voting machines are authorized by -Chapter 121, RSMo 1959. The voting machines were purchased after a successful bond election held therefor in 1955 wherein the voters authorized the City to incur .an indebtedness up to $2,275,000 to make 'the purchase, and the voting machines were ■■used in all elections held in the city after January 1, 1959.

In the primary election the arrangement of the ballot on the machine is as follows: Political parties are placed horizontally at the top above vertical columns; the offices to be filled are in the first vertical column to the voter’s left; the candidates’ names are in the succeeding vertical columns and are listed in the order of their filing; there are ten vertical columns and fifty horizontal rows for the placement of the names of candidates, offices, propositions and other similar matter; the voter may not vote twice in the same horizontal row; and he turns a lever which records a vote for the candidate of his choice.

For the primary election held August 2, 1960, more than fifty Democratic candidates filed for the various elective offices to be ■filled. The names of the candidates for the ■offices of Governor, Lieutenant-Governor and Secretary of State were placed first in the left vertical column for candidates, then the remaining names in the right vertical column, the names in each column being in the order of filing their declarations of candidacy. In the August, 1962, primary election therd were less than fifty candidates in the Democratic party who filed their declarations. In the St. Louis County primary elections of 1956 and 1960, where the same Shoup voting machines as were used since 1959 in the city, the listing and arrangement of candidates were the same as was employed by the City in its August 2, 1960 election, except in several more offices some of the candidates were carried to the column next to the right.

Mr. James E. Crowe is the Chairman of the Board of Election Commissioners of the City of St. Louis, having been appointed thereto by the Governor about May of 1961. Mr. Crowe testified that the adapters for the 1,240 voting machines used in the city would cost $220.50 each. After the deadline for withdrawal of candidates (fixed by the Board on June 12 in 1962) it would be administratively impossible to have the adapters installed (for which it would take six weeks) and prepare for the election; it would be uneconomic to put rented adapters on the machines for one election; equipment for paper ballots for elections had been disposed of and would have to be repurchased if used as a substitute for voting machines; and the Board would have a greater fear of the integrity of the ballots being violated by the use of paper ballots, there being, as far as is known, very little trouble, if any, in this respect in the use of the voting machines. In the August, 1962 Democratic primary election more than fifty candidates had filed, but it was not known until June 12 that withdrawals had reduced the number to less than fifty. Because of the various number of candidates running for office in various districts the number on a particular ballot varies from district to district. There are 600 precincts in the City, and in the 1962 primary in a maximum of 33 of these precincts there were more than fifty candidates on the Democratic ticket for all offices. At this point in the trial Mr. Crowe had a consultation with the experts in charge of the voting machines, and he then testified that when the filings were completed in April, 1962, there were two magistrate districts possibly involving some forty or fifty precincts where the Board had more than fifty candidates. Mr. Crowe was then asked the question: “Well, then, what reason would there be to acquire adapters for more than those forty or fifty precincts?” An objection was made and sustained to this question upon the ground that the question at issue here is whether the Board is required to follow the opinion of the Attorney General. Mr. Crowe then testified that the Board could have, in the exercise of its discretion, irrespective of what the Attorney General ruled, purchased the adapters, hut it felt that they were unnecessary and particularly at the price. It is the feeling of the Board that it would follow the opinion of the Attorney General as the chief legal officer of the state, hut it would not purchase the adapters except as based upon that opinion, or unless the court upholds that theory of the law.

In the event that five candidates for the office of Governor were certified to the Board by the Secretary of State, Mr. Crowe testified that one method to comply with the statute would be to list the first candidate on the top of the left-hand side and the second candidate in the adjoining column to the right, the third candidate under the first candidate in the left-hand column, the fourth over in the second column and the fifth back in the left-hand column. Another method would be to list the first three in the left-hand column and the next two over in the other column, which would be a matter of administrative discretion, the way it has been exercised up to this time. If there are more than fifty candidates there is no other way to list them; the second column must then he utilized because the voting machine has certain technical limitations by which the Board is bound, and it lists the candidates as best it can. If the total number of candidates exceeded the available space on all columns not required for the opposite party’s candidates, a new machine would have to be purchased. The adapters were not invented at the time the Shoup voting machine came into existence.

The matter of the purchase of the adapters was discussed with the Board of Estimate and Apportionment of the City, and as a financial matter that Board did not want to spend $270,000 for adapters, particularly when the Board of Election Commissioners doubted the necessity for the purchase. The Board of Election Commissioners would not proceed with that kind of an expenditure without having some prior approval from the City, or at least some way of being able to pay the company for the equipment.

The first question is whether a justiciable controversy exists among these parties. We have the situation of the City and the Board agreeing that such controversy does exist, and the Attorney General, as Intervénor, contending that it does not exist.

The real question here is not concerned with a past (moot) election, or a future election involving a hypothetical event (more candidates filing in the future than there are available spaces on the voting machines) which may or may not happen (except insofar as those events would be evidence of the need for the adapters). Nor is a mere advisory opinion sought. These foregoing considerations, existing alone, have been held to bar the exercise of jurisdiction in Declaratory Judgment Actions. See discussion of the Declaratory Judgment Act (now Chapter 527, RSMo 1959) in the case of City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411. See also State ex rel. Chilcutt v. Thatch, 359 Mo. 122, 221 S.W.2d 172; Tietjens v. City of St. Louis, 359 Mo. 439, 222 S.W.2d 70; Preisler v. Doherty, 364 Mo. 596, 265 S.W.2d 404; Jacobs v. Leggett, Mo., 295 S.W.2d 825; and M.F.A. Mutual Insurance Company v. Hill, Mo., 320 S.W.2d 559. It is apparent that the question between the City and the Board is whether the Attorney General’s opinion is correct and that the Board is required to follow it and as a result of that requirement the Board is going to prepare its voting machines by the purchase and use of adapters to accommodate all candidates in providing spaces for their names if their number exceeds fifty, the present available spaces on the machines. The Board states in its answer and in its brief (and the only evidence is) that it is required to and will follow the Attorney General’s opinion (in the absence of a judicial determination of the issue) and list the names of candidates in vertical order under the names of political parties on the voting machine ballots. The Board further states that it will expend public funds of the City in the estimated amount of $270,000 for the voting machine adapters to be purchased by the Board, negotiations for which are pending. The City maintains that the Attorney General’s opinion is not correct and that the Board’s contemplated purchase of the adapters based solely upon that opinion will subject the City to an unnecessary disbursement of public funds. While agreeing in some respects, the City and the Board are adversary parties in that the Board is threatening to purchase the adapters and the City is objecting thereto. The rights of the City in its function of protecting the disbursement of funds is imminently threatened by the contemplated action of the Board. See Tietjens v. City of St. Louis, supra, loc. cit. 222 S.W.2d 71 [1-4], where it was said: “A declaratory judgment presupposes a present controversy between actual parties as to their respective rights and obligations arising from an actual transaction or an intended transaction presently prohibited by law or contract.” (Emphasis added.) See also Borchard, Declaratory Judgments, pp. 930, 984. We hold that there is here a present, justiciable controversy, ripe for determination, and in which there may be a judgment entered which will settle the rights and obligations of these parties (in expending the City’s funds by purchase of the adapters) as they are involved by a construction of Section 121.100 (4) relating to listing and arrangement of candidates upon the primary election ballots of voting machines.

“The doctrine is settled that relief by declaratory judgment was not intended to displace all existing remedies; that under the foregoing and similar statutes the courts have a wide discretion in administering it; but that the discretion so exercised must be a sound judicial discretion based on good reason, and calculated to serve the purposes for which the legislation was enacted, namely, to afford relief from uncertainty and insecurity.” State ex rel. United States Fire Ins. Co. v. Terte, 351 Mo. 1089, 176 S.W.2d 25, 28 [2], Under the facts of this case, where a justiciable controversy exists, the trial court could not use its discretion as a ground for dismissal. See also City of Creve Coeur v. Creve Coeur Fire Prot. Dist. Mo., 355 S.W.2d 857, 860 [8]. The trial court erred in dismissing the petition upon the stated grounds.

Inasmuch as all of the pleadings state the issue, and the evidence has been adduced, in the interest of avoiding the prolongation of this litigation we will proceed to decide this case without remanding it for further hearing. Supreme Court Rule 83.13(c), V.A.M.R.; Magenheim v. Board of Education, Mo.App., 347 S.W.2d 409, 418 [13], We thus reach the basic issue of the construction of Section 121.100(4) as it applies to the Board in “listing the names of candidates in the order of filing” upon the ballots of the primary elections within the City of St. Louis.

Section 121.100(4) reads as follows:

“The order of the arrangement of parties and candidates shall be as provided by law not in conflict herewith except that the candidates for nomination for any one office at any primary election shall be listed in the order of filing, * (Our emphasis.)

This section of the statutes now under scrutiny is clear and unambiguous in its language. It is not susceptible of more than one construction. Therefore, we may not resort to any extraneous matter because 'there is no room for construction of such language. State ex rel. Bell v. Phillips Petroleum Co., 349 Mo. 360, 160 S.W.2d 764; Rathjen v. Reorganized School Dist. R-II of Shelby County, 365 Mo. 518, 284 S.W.2d 516. We have no right to read into the statute an intent which is contrary to the legislative intent made evident by the phraseology employed. State ex inf. Rice ex rel. Allman v. Hawk, 360 Mo. 490, 228 S.W.2d 785; Steggall v. Morris, 363 Mo. 1224, 258 S.W.2d 577. The legislative pronouncement means what it says: That on the voting machine ballots the candidates for any nomination for any one office at any primary election shall be listed in the order of filing. In our opinion this can mean only one thing which is that the person first filing for nomination is entitled to have his name on the ballot in first place, the second filer below the first, and so on in a single, vertical column. We cannot give to the legislative phraseology “listed in order of filing” the singled-out dictionary definitions ingeniously proposed by the City herein to permit double column listing of candidates 'on the ballot, (e. g., Webster’s International Dictionary, Unabridged, Second Edition, defines the word “list”: “3. To en-'dose as with a rail or barriers; to bound. 'Obs.” “4. To enter or enroll in a list or ■catalogue; * * * ”; and defines the words “in order” as: “In suitable arrangement or sequence; * * *.”) Such definitions would be attributing to these legislative words a strained, unnatural meaning in connection with their application to listing of candidates’ names on the ballot. We reject the arguments of the City that the plain meaning of these words is that the candidates’ names shall be entered or enrolled in a suitable arrangement or sequence in relation to the time the candidates filed.

The Board claims that it has some limited discretion in arranging names of candidates on the ballot if the total number exceeds fifty which is the number of available vertical spaces on the machine. Yet both the Board and the City agree with the Attorney General that the statute is mandatory. Such is the general rule. See 29 C.J.S. Elections § 158, p. 230; Nugent ex rel. Manning v. La France, 91 R.I. 398, 164 A.2d 230; Davidowitz v. Philadelphia County, 324 Pa. 17, 187 A. 585; Putnam v. Kozer, 119 Or. 535, 250 P. 625. We are unable to see how there could be an exercise of discretion in the face of a mandatory statute. Mandatory means “Containing, of the nature of, or pertaining to, a mandate or command; hence, obligatory”; Discretion means “Power of free decision; individual judgment; undirected choice.” Webster’s International Dictionary, Unabridged, Second Edition. The legislature, by the plain words used, must have intended that there should be no discretion, else what would there be to prevent any arbitrary selection of the names of candidates for any office (at the top, bottom, middle or any location on the ballot) and set them over in a second column? If such selection occurred the rights of candidates to have their names listed in vertical order of filing within the plain terms of Section 121.100(4) would be infringed.

If the terms of the statute are followed and the names of candidates for nominations to various offices are listed in a single, vertical column opposite the name of the office, which must be done, it is clear that no confusion can result in the mind of the voter in ascertaining what candidates are running for a particular office. The voter may with ease make his selection. He is not compelled to look elsewhere on the ballot for any other person for whom he may vote; there is no possibility that he will overlook the names of candidates arranged in such single, vertical column. We need not speculate upon the confusion to the voter that may be inherent in the use of double column listing of candidates for various offices on these voting machines, but it is obvious that it would be somewhat greater than by the use of single column listing.

We hold that Section 121.100(4) is clear and unambiguous in its wording and is not subject to a judicial construction; that it is mandatory; that there is no discretion whatsoever vested in the Board in the matter of arrangements of candidates in primary elections, but that the words of the statute, “except that the candidates for nomination for any one office at any primary election shall be listed in the order of filing” mean simply that such candidates shall be by the Board listed only in a single, vertical column from top to bottom in successive order of filing, opposite the name of the office to be filled and under the label of the political party in which the candidates seek nomination. Such holding carries out the legislative purpose contained in Chapter 121, and does not render the use of voting machines impossible.

The principal issue is whether the Board may expend city funds for the voting machine adapters. For all 1,240 of the Board’s voting machines, such adapters would cost a total of approximately $270,000. We are deciding this case de novo in a declaratory judgment action. We thus consider the reasonableness of the Board’s contemplated purchase of the adapters. We note that the evidence is that in only two magistrate districts, involving forty or fifty precincts (out of the total of 600 precincts) within the city there were more than fifty candidates for nomination in the August, 1960, primary election. It would follow that in precincts such as these, if the filings in future primary elections exceeded the available fifty spaces on the voting machines, the adapters would have to be installed to permit their use. Thus, the Board has a discretion to install adapters on voting machines to be used in those precincts. Nevertheless, we hold that it would be unreasonable and an abuse of the Board’s discretion to install adapters upon all 1,240 machines, when such adapters were needed upon only a small fraction pf that number. In its purchase the Board may procure only so many of the voting' machine adapters as the evidence available to it, prior to election and after the filing of candidates is completed for such election,, reasonably indicates is needed.

The judgment is reversed and this case is remanded to the trial court with directions to enter a judgment declaring that (1) Section 121.100(4), RSMo 1959, V.A.M.S., is clear and unambiguous and is not therefore subject to judicial construction; (2} that the provisions thereof are mandatory and are binding upon the Board of Election Commissioners of the City of St.. Louis; (3) that said Board has no discretion whatsoever in the matter of arrangement of candidates in primary elections, but that the mandatory words of the statute “except that the candidates for nomination for any one office at any primary election shall be listed in the order of filing” mean that such candidates shall be listed by said Board only in a single, vertical column from top to bottom in successive order as to time of filing their declarations of candidacy, and opposite the name of the office for which nominations are sought and under the label of the political party in which such candidates seek nomination; (4) in order to utilize its voting machines in all voting precincts of the City of St. Louis,, the Board may purchase such number of voting machine adapters as the evidence available to it reasonably indicates will be-needed by reason of more candidates filing than there are available spaces on the-voting machines in any precinct or precincts in any future primary election.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.