author: LEEDY, Judge.

text:
    In the Matter of Terry Rae SHEPLER, an Infant, and Kevin Lee Shepler, an Infant. Edward R. SHEPLER, Petitioner, v. Otis Terrill SAYRES and Lorena Sayres, Respondents.
    No. 49896.
    Supreme Court of Missouri, En Banc.
    Nov. 11, 1963.

      J. Andy Zenge, Jr., Canton, for petitioner.
    Brown & Normile, Edina, for respondents.
   LEEDY, Judge.

This habeas corpus proceeding was instituted in the original jurisdiction of the St. Louis Court of Appeals. After opinion in that court (361 S.W.2d 354), and on respondents’ application to this (the Supreme) court, the proceeding was ordered transferred here pursuant to Art. V, § 10, Const, of Mo., V.A.M.S., and Rule 84.05, V.A.M.R. It is the fourth in a series of legal skirmishes involving competing claims, as between the natural father and the maternal grandparents, to the custody of two children, Terry Rae Shepler, now 12 years of age, and her brother, Kevin Lee Shepler, now 8 years of age. The petitioner, Edward R. Shepler, is the natural father of said children, and the respondents, Otis Terrill Sayres and Lorena Sayres, are the maternal grandparents with whom the children have been living since the accidental death of their mother, Melba E. Shepler (by drowning) on July 24, 1960.

On October 7, 1955, in the Circuit Court of Scotland County, the mother, Melba, was granted a divorce from Edward, and by the decree was awarded custody of the two children and $100 a month for their support. The children continued in her custody until the date of her death, soon after which two of the actions above referred to were instituted. Both were abortive. See Shepler v. Shepler, Mo.App., 348 S.W.2d 607, decided July 18, 1961. Following on the heels of this decision, (on August 12, 1961) Edward brought habeas corpus in the Circuit Court of Knox County (in which county Mr. and Mrs. Sayres reside) to obtain custody of the children. On hearing and trial held August 22, 1961, before the Honorable Wm. E. Stewart, the regular judge of said court, a judgment or decree was entered in that proceeding by which it was ordered and adjudged that Edward be denied the custody of said children, and that such custody be and remain with the grandparents. Upon the overruling of his motion for a new trial, Edward sought to appeal to the St. Louis Court of Appeals, and to that end he not only filed a “notice of appeal,” but also had prepared and approved a full transcript on appeal, consisting of 147 pages, the original of which was filed January 29, 1962, in the Court of Appeals, where the cause was numbered 31,130. While not shown by the instant record, it is apparent that appeal was subsequently dismissed, either by the appellant or by the appellate court inasmuch as no appeal lies from such a judgment. (Edwards v. Engledorf, Mo.App., 176 S.W.2d 32; State ex rel. Kassen v. Carver, Mo. App., 355 S.W.2d 324.)

Such was the state of affairs when on August 15, 1962, Edward filed in the St. Louis Court of Appeals his petition in the present proceeding. In due time that court’s writ of habeas corpus issued, directed to respondents, who filed their return, and to which petitioner filed “Answer.” The petition and return are summarized in the opinion of the Court of Appeals, which summary we adopt by reference; but in addition to those allegations so summarized, the return also alleges: “ * * * that the petitioner is now employed in Phoenix, Arizona, and is engaged in an occupation which in the past has necessitated his making frequent and regular changes of residence and domicile; since the divorce between Edward R. Shepler and Melba E. Shepler, the petitioner has only visited these infant children infrequently and at no time have they ever stayed with their father overnight; that due to the neglect and abandonment of these children when Kevin Lee Shepler was one week old and Terry Rae Shepler was three years old, and his separation from them for approximately eight years, he is no more than a stranger to them; * * * that up to the date of the death of Melba E. Shepler these infant children stayed with' Otis Terrill Sayres and Lorena Sayres for a week or more at a time and since the death of their mother, they have lived with the said Otis Terrill Sayres and Lorena Sayres continuously for over two years and have been provided by them with all the necessities of life; that they own their own home in Edina, Missouri, which is free of debt; that they are of good character and are financially able to provide and care for the infant children aforesaid; that in the past they have contributed materially to the support of said infant children and have on occasions provided a home for the children and their mother before her death; they are the closest relatives of the infants aforesaid with the exception of the petitioner; that they are well able and anxious to have the custody and care of said infants; * * * that both Terry Rae Shepler and Kevin Lee Shepler attended school in Edina during the past school year and made above average grades and are well assimilated into their classes; that both children have made numerous childhood friends in Edina, Missouri, and a move to a strange town and environment with strangers would entail major adjustments by these children into their new environment; that the environment to which the petitioner proposes to take these children is entirely different than the environment in which they are living and would also entail a major adjustment by these children; that for over two years these chidlren have lived in the home of Otis Terrill Sayres and Lorena Sayres; that they are-presently in the best mental and physical health and well-being; that to take them from the home which has been proven by the test of time to be a successful one for these children and to allow the petitioner to take them to his home where there is a serious question as to whether or not they would fare equally well would not be to the best interests of these children but would be an experiment with the welfare of the children; that they and these children have a parent-child affection for each other and to award the custody of these children to the petitioner would cause great mental pain and distress to the children and would not be to their best interest; that because of the abandonment of these children by the petitioner they have no feeling for him and do not wish to live with him; * * (The issues tendered by these pleadings are basically the same as those involved in the prior Knox County habeas corpus proceeding just mentioned.) Singularly, it was stipulated in the Court of Appeals that the transcript on appeal in said prior Knox County proceeding (being that numbered 31,130 of the causes of said Court of Appeals) “be used as the transcript of the record in this cause.” The cause was accordingly submitted thereon, together with later filed depositions of two of Terry Rae’s public school teachers, her Sunday School teacher, and her grandmother, Mrs. Sayres, plus copies of petitioner’s income tax returns for the years 1959, 1960 and 1961, the great bulk of the evidence, however, being that contained in the stipulated transcript in the prior case. (Curiously, the stipulated transcript shows that such prior Knox County habeas corpus case was, by agreement, tried in part on a transcript of the present petitioner’s own testimony as given by him at the trial of the still earlier Scotland County consolidated causes (referred to in footnote 1) before Judge Stewart in September, 1960; this notwithstanding the fact petitioner was personally present, and testified at said August 22, 1961, trial. Memorandum briefs were submitted, and in due time the court’s opinion was delivered by which Edward was “granted custody of his children forthwith.”

Without analyzing or discussing the numerous (and, unfortunately, sometimes seemingly divergent) pronouncements of the several appellate courts of this state, including this court, in reference to the principles of law applicable to the adjudication of child custody questions, it may be said that the prime consideration of the courts, and the ultimately determinative factor in all such cases, is that of the welfare and best interest of the children involved. This principle was reiterated and applied as lately as the case of In re Duncan, Mo., 365 S.W.2d 567, where the following from Ex parte De Castro, 238 Mo.App. 1011, 190 S.W.2d 949, 951, was quoted approvingly: “There is, however, a still fur ther issue which inheres in the case by reason of its subject matter. This is the issue of the welfare of the child, which is an issue always to be kept in view in all legal proceedings involving the custody and control of a minor child as to which the state stands in the relation of parens patriae. In other words, whenever a minor child is brought within the jurisdiction of a court for an adjudication with respect to the question of its custody, the child becomes the ward of the court; and in determining the question of its ultimate disposition, the child’s well-being is of paramount consideration, and the rights and claims of the contending parties, even in the case of the parents themselves, must be subordinated to what the court may conclude will be for the best interest of the child. Ex parte Badger, 286 Mo. 139, 226 S.W. 936, 14 A.L.R. 286. * * * In such an instance the nature of the inquiry makes the proceeding one of an equitable nature; and the question of either party’s strictly legal right will be measured in terms of the welfare of the child. Ex parte Badger, supra; 25 Am.Jur., Habeas Corpus secs. 78-80; 39 C.J.S. Habeas Corpus § 41.” {Emphasis the present writer’s.) See, also, those cases cited in footnote 2 to the same effect.

In Duncan, supra, the father had obtained the divorce and the decree (rendered by default on constructive service), with no actual hearing on his fitness or the welfare of the couple’s two children, awarded their custody to the father. Thereafter he brought habeas corpus to obtain their custody from the maternal grandparents with whom said children had been left by both parents prior to the divorce. The maternal grandparents resisted, and their allegations bear striking similarity to certain portions of the return in this case charging unfitness of petitioner and the reasons for which it would be to the best interest and welfare of the children to remain with their grandparents. The trial court sustained Duncan’s motion for judgment on the pleadings on the theory that the respondents were concluded by the decree’s award of custody to the father, and that such decree was not subject to collateral attack as attempted by the grandparents. The St. Louis Court of Appeals reluctantly affirmed, but transferred the cause to this court for reexamination of the existing law (Duncan v. Pitts, Mo.App., 360 S.W.2d 361). This court took the view that “where the whole future of the lives of children is at stake, the matter is too important to be decided solely on a legalistic presumption of fitness based on a default decree on a perfunctory hearing,” (emphasis supplied) and it was accordingly held that under the facts there in judgment the Court of Appeals could hear evidence on the issues of the father’s fitness and the children’s best interest and welfare, or in its discretion certify the issues to the juvenile court to make orders as to custody, and the cause was remanded for that purpose. (By analogy, that principle, as italicized above, is applicable here with respect to the view entertained by the Court of Appeals, referred to in the paragraph next below, that presumptively it is in the best interest of the children and their welfare to be with their parent.)

The award of custody to the father was adjudged by the Court of Appeals on the theory that the grandparents had “failed to bear their burden of proving the petitioner unfit,” and by giving what we deem to be undue (if not to say, controlling) weight and emphasis to the parental relationship sustained by petitioner toward the children, including the accompanying or concomitant presumption “that the best welfare of the child is to be with its parents.” The circuit judge who heard both the prior Knox County habeas corpus case and the two proceedings in the Scotland Circuit Court involving the claims of the instant parties to the custody of these children (as noted in footnote 1 appended hereto), and who in each instance saw the witnesses (and was thereby better enabled to judge of their credibility), reached a conclusion directly contrary to that of the Court of Appeals, and this notwithstanding that in the present proceeding the evidence was substantially and for all practical purposes the same as that before the circuit judge. In this connection respondents make the point that even though § 510.310, RSMo 1959 and V.A.M.S. (which section, incidentally, has been supplanted by Rule 73.01, V.A.M.R., embodying the same provisions, but extending its scope so as to include advisory jury cases) is admittedly not applicable, the Court of Appeals should nevertheless have been guided by that precept of said section declaring that upon appellate review of a case tried upon facts without a jury, the “judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” It is apparent that the decision of the Court of Appeals does not turn upon its determination of the facts upon weighing the evidence or the credibility of the witnesses, but instead rests uporr its conclusion with respect to matters of law.

As hereinabove indicated, we disagree as to the applicability of the principles of law upon which the decision just mentioned is based, and in consequence we are remitted to an inquiry as to facts. Because of his superior opportunity to judge of the credibility of the witnesses, we would be disposed to defer to the findings of the circuit judge on the facts, and would do so except that at the oral argument on the present submission it was agreed that the record be supplemented by certain factual data in relation to school attendance by the children during the school year 1962-1963 (substantially all of which elapsed subsequent to the date of the decision by the Court of Appeals) showing that during the first semester the school attendance of the children was normal, but that during the second semester each child had an inordinate number of unexplained absences. During said second semester, Kevin Lee was absent 58 days, and present only 27 days; Terry Rae was absent 49 days, and present 36. This showing alone raises a serious question as to whether it is in the best interest and welfare of the children to be in an environment (however good it might otherwise be) where discipline and lapses of this kind are tolerated or permitted to occur. The only explanation attempted has been by-way of a stipulation (filed subsequent to the date of submission of the cause in this court) and its accompanying “Exhibit A” (an osteopathic physician’s certificate) together with photographic copies (lodged here recently) of the children’s grade cards. Said stipulation (omitting caption and signatures) and the doctor’s certificate are, respectively, as follows:
“The following evidence is presented pursuant to a stipulation entered into when this matter was argued before the Court on May 7, 1963, by leave of Court granted at that time. Counsel for the petitioner and respondent interviewed Mrs. Dundee Gates, Edina, Missouri, who teaches the sixth grade at the Edina Public School, and Miss Florence Costello, Edina, Missouri, who teaches the second grade at the Edina Public School. Counsel for respondent and petitioner stipulate and agree that if the depositions of Mrs. Gates and Miss Costello had been taken, they would have testified to the following facts:
“Mrs. Costello would testify as follows : That she is the second grade teacher at the Edina Public School, that Kevin Shepler is one of her pupils. That during the first semester he missed three and one-half days of school and was present 861/2 days. That he is a superior student and had an S average for the first semester. That during the first 85 days of the second semester, he has been present 27 days and absent 58 days. That beginning about the first of February he missed four weeks of school and since that time has been attending school only sporadically. That during the week beginning May 6, 1963 he attended one-half day and that during the week prior to that he attended three days. That in February, 1963, Mrs. Lorena Sayres contacted her concerning make-up work for Kevin Shepler, but has not contacted her since. That Kevin Shepler has made only a partial attempt to make up the work he has missed. That he is a quiet child and is well behaved and is not a discipline problem. Kevin Shep-ler gets along well with the other children. That at this time she is concerned over whether or not to pass Kevin Shepler to the third grade. That the school year ends on May 17, 1963. That the information she received is that Kevin Shepler was sick the first part of February but that this would not account for the continued absences up to the present time.
“Mrs. Dundee Gates would testify as follows: That she is the sixth grade teacher in the Edina Public School. That Terry Rae Shepler is a student in her class. That in the first semester she missed four and one-half days out of 90 and was thus present 85^4 days. That she was either on the Honor Roll or extremely close to being on the Honor Roll the first semester. That during the first 85 days of the second semester she has been absent 49 days and present 36 days. That the absences started about three weeks after Christmas and that her attendance records indicate the following days present starting approximately three weeks after Christmas:
Week Beginning Days Present
Jan. 21 y2 days
Jan. 28 1 day
Feb. 4 1 day
Feb. 11 3 days
Feb. 18 0 days
Feb. 25 2y2 days
Mar. 4 0 days
Mar. 11 0 days
Week Beginning Days Present
Mar. 18 0 CO
Mar. 25 2 CO
Apr. 1 4 V>
Apr. 8 3 eu p 4-»
days Apr. 15 U/2
day Apr. 22 1
days Apr. 29 5
May 6 5
days
“That she has made up all of her English work books and Arithmetic workbooks but that this is about the extent of the makeup work she has completed. However, the other pupils have attempted to help her on work she has missed. That Mrs. Sayres saw her on two occasions, the first being on the street and once at school. Mrs. Sayres said she was worried about Terry and asked for makeup work to be taken home. That the first contact was approximately the beginning of the period mentioned above. That Terry Rae Shepler is popular with the children in her class and is not a discipline problem. That she talked with Terry Rae Shepler about the absences and that the student would give as her excuse “I didn’t feel good when I got up this morning” or words to that effect. That she is now concerned over whether or not to pass Terry Shepler on to the seventh grade.
“It is further stipulated that photocopies of the grade cards for Kevin Shepler and Terry Shepler may be submitted to the Court and considered as evidence.
“It is further stipulated that Mrs. Lorena Sayres, one of the respondents, was born on August 16, 1901 and is 61 years of age at this time. That attached to this stipulation and marked Exhibit A is a doctor’s certificate from Dr. C. W. Gibson, D. O., Edina, Missouri, concerning his care of Kevin and Terry Shepler. It is stipulated that he is the only doctor that has cared for the children during this period of time.”
“Exhibit A
“GIBSON HOSPITAL AND CLINIC
“C. W. Gibson, D. O.
“Edina, Missouri “May 16, 1963
“To Whom It May Concern:
“This is to certify that I treated Kevin Lee Shepler on February 12, 1963 for a viral influenza. I gave him antibiotics and prescribed further treatment with same. On February 13, 1963 I saw Terry Rae Shepler, who showed listlessness and a run down condition for which I prescribed a vitamin tonic.
“Yours truly,
“/s/ C. W. Gibson, D.O.
“C. W. Gibson, D.O.”

The subsequently submitted grade cards state that “on the basis of work made up during the summer,” each child had been promoted to the next grade for the 1963-1964 school year.

Moreover, the only oral testimony introduced on the part of petitioner was that of himself and his present (third) wife. A reading of petitioner’s own testimony leaves much to be desired, and it is not surprising that the circuit judge would not have been favorably impressed by it. The substance of some of it (including that bearing on the timing of his subsequent marriages, the indefiniteness of his several employments, and his admitted persistent noncompliance with the divorce decree directing reasonable payments for the support of the children) appears in the opinion of the Court of Appeals, but the intangibles do not, nor can they be readily depicted. In the interest of brevity, that set forth in the opinion under scrutiny should be read in connection with the present opinion. On the other hand, there are disquieting intimations in the cross-examination of some of respondents’ witnesses to the effect that Mr. Sayres drinks intoxicating liquor to excess. Even so, he was not .called as a witness. Perhaps this is merely illustrative of those instances where a record is made in the light of a trial judge’s known familiarity with local conditions, and there is carelessness in preserving the record to be reviewed in other surroundings. In any event, on appraisal of the record anew here, and taking into account the history of the prior litigation, and the variant results in the different courts in the instant case, and the other considerations to which reference has been made, we have concluded that an adjudication on the merits of the custody issue cannot be sanctioned in the absence of a more searching and exhaustive exploration of the facts on which that issue must turn. The submission is therefore set aside, and the cause remanded to the St. Louis Court of Appeals so that such evidence may be taken, and, in the light thereof, a new judgment entered.

All concur, except HOLMAN, J., not sitting.

      . Tins decision discloses that on July 28, 1860, the maternal grandparents filed in the Scotland Circuit Court their “Petition for Custody” of the two children, said court being the one wherein the divorce had been obtained and custody of the children awarded to their mother. On the same day a hearing thereon was held in the juvenile division of that court, and temporary custody of the children was awarded to said maternal grandparents, and the cause was continued until September 6, 1960, for hearing on the question of.permanent custody. On the day so appointed for hearing on the latter question, the father filed in said circuit • court his motion to modify the original decree of divorce with respect to custody so as to award such custody to him. By agreement, the latter motion and the respondents’ “Petition for Custody” were consolidated for trial before Hon. Wm. E. Stewart, Judge of the Second Judicial Circuit, who was sitting as a Special Judge of said Scotland Circuit Court, and the resulting judgment was that Edward’s motion to modify the decree of divorce as to custody be denied, and that Mr. and Mrs. Sayres be awarded permanent custody of the children. Edward appealed to the St. Louis Court of Appeals where it was held that the trial court was without jurisdiction to hear and determine either the grandparents’ petition for custody or Edward’s motion to modify. The trial court’s judgment was accordingly reversed, and the cause was remanded with directions to the trial court to dismiss both the “Petition for Custody,” and' the motion to modify.

      . See (among others): In re Duncan, Mo., 365 S.W.2d 567; Testerman v. Frederick, Mo.App., 323 S.W.2d 522; Le Claire v. Le Claire, Mo.App., 352 S.W.2d 379; In re J_, Mo.App., 357 S.W.2d 197; Bruns v. Uebel, Mo., 318 S.W.2d 324; Morris v. McGregor, Mo.App., 269 S.W.2d 171; Ex parte Archer, Mo.App., 253 S.W. 1095; Irvin v. Irvin, Mo.App., 357 S.W.2d 254; Birrittieri v. Swanston, Mo.App., 311 S.W.2d 364; Stricklin v. Richters, Mo.App., 256 S.W.2d 53; In re Wakefield, 365 Mo. 415, 283 S.W.2d 467; S_ v. G_, Mo.App., 298 S.W.2d 67; Clark v. Clark, Mo.App., 300 S.W.2d 851; Orey v. Moller, 142 Mo.App. 579, 121 S.W. 1102; In re Cole, Mo.App., 274 S.W.2d 601; Cox v. Carapella, Mo.App., 246 S.W.2d 513.

      . That is, not withm the coverage of the statute or rule because the instant proceeding, although submitted on the record of the Knox County habeas corpus case, is not, in form, an appeal from, nor does it constitute an appellate review (in the conventional sense) of, the judgment rendered in said Knox County case, even though the relief presently sought, if granted, would supersede and overturn the latter judgment, and this, ironically, for all intents and purposes, on the same record.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    The STATE of Missouri, at the Relation of Don THOMASON, Commissioner of Agriculture, Appellant, v. Wilfred E. ROTH, doing business as Wimpy’s IGA Foodliner, Respondent.
    No. 49654.
    Supreme Court of Missouri, Division No. 2.
    Nov. 11, 1963.

      Thomas F. Eagleton, Atty. Gen., Wayne W. Waldo, John H. Denman, Asst. Attys. Gen., Jefferson City, for appellant.
    Roberts & Roberts, Farmington, for respondent
   STOCKARD, Commissioner.

This is an appeal by the State of Missouri from a judgment dismissing its petition in a suit brought at the relation of Don Thomason, Commissioner of Agriculture, under the Unfair Milk Sales Practices Act (hereafter referred to as the “Act”), Sections 416.410 to 416.560 (all statutory references are to RSMo 1959, V.A.M.S.), to enjoin certain alleged illegal practices by Wilfred E. Roth, doing business as Wimpy’s IGA Foodliner at Ste. Genevieve, Missouri. Before referring to the allegations of the petition we shall set forth the provisions, of the Act relevant to this appeal.

Section 416.410 defines certain terms, and subsection (10) thereof defines a “Non-processing retailer” as “any person, not a processor [defined to be any person who is engaged in the business of processing or packaging bulk milk or other materials into milk products], engaged in the business of transferring title within the state to milk products for a consideration where such product is to be used or consumed by the purchaser and is not to be resold or used for the purpose of manufacture or further processing.” Section 416.425 provides that “No nonprocessing retailer shall, with the intent or with the effect of unfairly diverting trade from a competitor, or otherwise injuring a competitor, or of destroying competition, or of creating a monopoly, advertise, offer to sell or sell within the state of Missouri, any milk product for less than cost to the retailer.” Section 416.480 of the Act provides that “The remedies provided for in sections 416.410 to 416.560 are exclusive and no criminal fines or penalties shall be imposed for violation of sections 416.410 to 416.560.”

One such remedy is provided for by Section 416.450 as follows: “In any case in which a complaint is made in writing to-the commissioner by a person claiming to-be injured because milk products are being offered for sale or sold in violation of the provisions of sections 416.410 to 416.560, the commissioner shall forthwith cause an investigation to be made of the complaint, and if, in the judgment of the commissioner, the investigation reveals that there is probable cause for the complaint, the commissioner shall call upon the attorney general or the prosecuting attorney of any county in which a violation of the provisions of sections 416.410 to 416.560 occurs to institute an injunction suit in a court of competent jurisdiction of the county in which the alleged violations took place to restrain the violations of sections 416.410 to 416.560 as may be revealed by the investigation; and it is the duty of the attorney general or prosecuting attorney to institute and prosecute the injunction suits.” In connection with this remedy, Section 416.475 provides that upon the filing of the complaint referred' to in Section 416.450, “the commissioner shall require of the complainant, a bond in the sum of one thousand dollars to defray the expenses of the necessary investigation incident to the complaint.”

Another remedy is provided for in Section 416.455. “Any person who is injured in business or property by reason of another person’s violation of any provision of sections 416.410 to 416.560 may intervene in the suit for injunction instituted pursuant to section 416.450, against the other person or he may bring a separate action and recover three times the actual damages sustained as a result of the violation, together with the costs of the suit, or may sue to enjoin the violation of any provision of sections 416.-410 to 416.560.”

Sections 416.490 and 416.505 provide for a third remedy, but it is limited to violations of the Act on the part of “any person” who operates “a milk or milk products manufacturing or processing plant” within this state, or without this state and sells, offers for sale or distributes milk or milk products in this state. There is no contention that defendant is included within this classification. Such persons are required to obtain a license from the Commissioner who is “authorized and empowered to suspend or revoke the license of any person * * * or refuse to issue a license to any applicant therefor if the commissioner, after a public hearing, has found that the applicant has violated any of the provisions of sections 416.410 to 416.560, or the rules and regulations adopted hereunder.” In the event any such person is making sales within this state without first having acquired a license from the Commissioner, “the attorney general or the prosecuting attorney shall bring suit * * * to enjoin the sales or distribution of milk or milk products.” In addition, the Commissioner, or his authorized agents or representatives, are authorized and empowered to issue and enforce a written “stop-sale” order to the owner or custodian of the milk products.

We turn now to the allegations of the petition in this case. It alleged that Wilfred E. Roth is a retail merchant in Ste. Genevieve, Missouri, doing business as Wimpy’s IGA Foodliner; that he is a nonprocessing retailer as defined in the Act, and that he is engaged in the business of selling milk products; that on April 2, 1962, he violated Section 416.425 in that he offered for sale and sold two one-half gallon cartons of Grade “A” milk for the price and consideration of fifty-five cents, and the sale of said milk products at said price was a sale for less than cost to the defendant retailer; and that all of this was done with the intent or with the effect of unfairly diverting trade from a competitor, or otherwise injuring a competitor, or of destroying competition or of creating a monopoly. In the reply it was admitted that the Commissioner “has not received a complaint in writing specifically alleging that the defendant had sold or offered for sale milk products in violation of the various provisions of sections 416.410 to 416.560,” but it was alleged that the Commissioner “has received many oral complaints against the defendant by persons claiming to be injured” by his sales of milk in violation of the Act, that he had investigated the complaints and that “such investigation reveals that there is probable cause of such complaints.”

The trial court dismissed the petition for the reason that “the filing- of a written complaint by some person claiming to be injured with the Commissioner of Agriculture and the posting of a bond * * * are conditions precedent to the maintenance of an injunction proceeding by the Commissioner of Agriculture,” and that “the exclusive remedies for the enforcement of the terms of the Unfair Milk Sales Practices Act are contained in said Act and that the Commissioner of Agriculture may not avail himself of the general statutes concerning injunc-tive relief, but must strictly comply with the requirements of the Unfair Milk Sales Practices Act.”

In regulatory police measures of this nature the Legislature may in its discretion, within limits not here material, provide what acts shall be considered wrongful, and may prescribe, also within limits not here material, what the remedy may be in the event of a violation. See Borden Company v. Thomason, Mo., 353 S.W.2d 735. In clear and unequivocal language the Legislature has provided in Section 416.480 that in the event of a violation of Section 416.425 the remedies provided for in the Act “are exclusive.” The only remedy available at the instigation of the Commissioner provided for in the Act in the event of a violation of Section 416.525 by a nonprocessing retailer is that set forth in Section 416.450 which authorizes the Commissioner to seek an injunction, but only if he has received a complaint in writing, made by a person claiming to be injured because of a violation of Section 416.425. We think the language of Section 416.450 is clear in this respect and that a reasonable interpretation of the language used can lead only to this conclusion.

We note that Section 416.455 authorizes any person who has been injured in business or property because of a violation by another of Section 416.425 may intervene in the suit for injunction instituted by the Commissioner, o? he may bring a separate actiqn for damages , and also ■ “may sue to enjoin the violation” of Section 416.425. For this person to invoke this remedy by way of a separate action no written complaint to the Commissioner is required. We note also that as to processors or distributors the Commissioner is vested with authority to invoke remedies in the event of violations of the Act which do not require that a complaint in writing be filed with him. Undoubtedly the Legislature purposefully and intentionally provided for these distinctions in providing the exclusive remedies under the Act. We, as a court, are not concerned with the wisdom of the limitation provided for in the remedy available to the Commissioner to prevent violations of the Act by a nonprocessing retailer. That is a legislative question. Also we need not rule in this case whether the state, irrespective of authority similar to that in Section 416.450, would be entitled to invoke the general statutes pertaining to injunctive relief to enjoin violations of a regulatory measure enacted under its police powers. The Legislature has declared that as to the Unfair Milk Sales Practices Act the remedies therein provided are exclusive, and if the Legislature chooses to so limit the enforcement of such a regulatory police measure it is not for the courts to say otherwise.

The Attorney General relies primarily on the language in a part of Section 416.540. Prior provisions of the Act provide for “service of- process in suits brought under the provisions” of the Act. Section 416.540 then provides that “The foregoing provisions relative to service of process in suits against nonresidents shall not be deemed to prevent actual personal service in this state upon a nonresident in the time, manner, form, or under the conditions provided for service on residents, [*] and nothing contained in sections 416.410 to 416.560 shall be construed as in any manner limiting, affecting or repealing any cause of action, right, or method of procedure now provided by .law, but the provisions of said sections are cumulative and in addition to any existing right, remedy, cause of action, and.method, pf procedure.”.. The Attorney General quotes only that part of the above section following the asterisk in brackets which we have inserted, and asserts that by reason of it and the implied powers of the Commissioner, he is entitled to sue to enjoin a violation of Section 416.425 by a nonprocessing retailer even though no written complaint has been filed with him. To give to Section 416.540 the interpretation contended would result in Section 416.-480 having no meaning or purpose whatever; a result to be avoided if possible in the construction of a statute. State ex rel. St. Louis Die Casting Corp. v. Morris, 358 Mo. 1170, 219 S.W.2d 359; State ex rel. Wright v. Carter, Mo., 319 S.W.2d 596. Section 416.540 makes it clear that the powers of the Commissioner otherwise granted to him are not to be reduced, but in view of the provision that the remedies provided for in the Act are exclusive there is no “cause of action, right, or method of procedure now provided by law” granting him authority to maintain this suit for an injunction absent a complaint made to him in writing. While the Commissioner has “by implication such powers as are necessary for the due and efficient exercise of those expressly granted, or such as may be fairly implied therefrom,” 67 C.J.S. Officers § 107, p. 379, it cannot be said that because he has the express power to obtain an injunction if a written complaint is filed with him, he has the implied power to obtain an injunction in the absence of a written complaint.

We note that the Legislature has enacted into law Senate Bill No. 126, which has become effective after the entry of the judgment from which this appeal has been taken, and which amends Section 416.450 of the Act to read, in the part here material, as follows: “In any case in which a complaint is made in writing to the commissioner by a person claiming to be injured because milk products are being offered for sale or sold in violation of the provisions of sections 416.410 to 416.560, or in which such violations are apparent to the commissioner, the commissioner shall forthwith cause an investigation to be * * The italicized words constitute the amendment made to Section 416.450. Regardless of the existing authority of the Commissioner by reason of the above amendment, the issue before us is the correctness of the judgment of the trial court under the law prior to the amendment. For the reasons above set forth we conclude that the petition was properly dismissed.

The judgment is affirmed.

BARRETT, C., concurs.

PRITCHARD, C., not sitting.

PER CURIAM.

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

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    Helen C. ZALLE, Respondent, v. Melvin C. UNDERWOOD, Appellant.
    No. 49689.
    Supreme Court of Missouri, Division No. 1.
    Nov. 11, 1963.

      Goldenhersh, Goldenhersh, Fredericks, Newman & Lane, Henry J. Fredericks and Frank J. Lane, Jr., St. Louis, for (plaintiff) respondent.
    Guilfoil, Caruthers, Symington & Mon-trey, John P. Montrey and Jerome F. Ras-kas, St. Louis, for (defendant) appellant.
   HOUSER, Commissioner.

This litigation arose out of a collision between two automobiles on Lemay Ferry Road in St. Louis County. Plaintiff Helen C. Zalle brought an action for personal injuries, loss of wages, and property damage against Melvin C. Underwood, who filed a counterclaim for the same items of damage. At the close of plaintiff’s evidence she dismissed her petition with prejudice, and the case proceeded against plaintiff on defendant’s counterclaim. A trial jury returned a verdict for plaintiff on defendant’s counterclaim, and defendant appealed. Defendant having prayed for $18,500 in his counterclaim, we have jurisdiction.

Lemay Ferry Road in St. Louis County is a four-lane highway, running generally north and south, with a slight incline to the north at the point of collision. The collision occurred in .the northbound lane of traffic closest to the east curb of Lemay Ferry Road, in front of a Steak & Shake restaurant. Two driveways, separated by a distance of approximately 80 feet, lead from Lemay Ferry Road into the Steak & Sháke property. The collision occurred in front of the northernmost of the two driveways. At the point of collision the speed limit for automobile traffic was 35 miles per hour. At the southern edge of the Steak & Shake property is Catskill Street, which intersects Lemay Ferry Road. South of Catskill, on the east side of the highway, there is a Fleet service station. At the northern edge of the Steak & Shake property is Point Street, which intersects Le-may Ferry Road. North of Point and fronting on the east side of Lemay Ferry Road is a Star service station. One block north of Point Street, at the intersection of Telegraph Road with Lemay Ferry Road, there is an electric stop sign. Oh the date of the collision the weather was clear and the streets were dry. Neither driver saw the other automobile prior to the collision.

Mrs. Zalle testified that she had been driving south on Lemay Ferry Road, in the lane closest to the center, with her left turn signal on, intending to turn east on Point Street, but she went too far and passed the Point Street intersection. She then intended to make a left turn into the north driveway leading into the Steak & Shake property, re-enter Lemay Ferry Road, go north to Point Street, and there turn right into Point. Prior to making her left-hand turn toward the Steak & Shake driveway, with her left-turn blinker turned on, she brought her automobile to a stop in the southbound lane in Lemay Ferry Road closest to the center. She then continued south in the same traffic lane to a point on Lemay Ferry Road opposite the north driveway of the Steak & Shake property, where she stopped a second time. While stopped she noticed a line of northbound traffic in the northbound lane nearest the center line, extending south from the electric signal at the Telegraph Road intersection to a point south of the Steak & Shake property, as far as she could see. A northbound blue station wagon, in the northbound lane nearest the center line, stopped south of the north driveway of Steak & Shake. Its driver motioned for her to make a left turn and cross in front of him; signaled for her “to go on through.” There was an opening in that northbound line of traffic; a “big space” between the station wagon and the next car in front of the station wagon. She then turned left in front of the station wagon and stopped a third time, with no part of her automobile extending into the northbound lane of traffic closest to the east curb of Lemay Ferry Road. She then looked to her right, to the south into that northbound lane, “to make sure there weren’t any cars coming.” From her position a few feet north of the north driveway of Steak & Shake she saw no traffic in that lane, at least as far south as the south driveway of Steak & Shake. She could see “quite a ways down — I couldn’t say the distance. I could see pretty clearly.” Then she proceeded to complete her turn by entering the northbound lane closest to the east curb and as soon as her automobile entered that lane the collision with defendant’s automobile occurred' — • “immediately” as she “went out.” She did not see the automobile of Mr. Underwood before the collision occurred, or hear a horn of any kind. She did not sound a horn.

Mr. Underwood testified that he was operating his automobile north in the northbound lane of traffic closest to the east curb of Lemay Ferry Road, traveling between 30 and 40 miles an hour as he passed Catskill Street. There were two cars in front of Mr. Underwood’s car in the same lane, but they were some distance away, stopped at the stop sign at Telegraph Road. He observed the line of traffic in the lane to his left, which line extended from the electric stop sign above mentioned south to the south entrance to the Steak & Shake property. This line of traffic was “in his view” and he'knew it was stopped. He could not “truthfully” say whether he noticed a gap or space in the line of traffic at the point where the collision occurred. He had a “vague idea of a small opening” but was not aware of any gaps; did not actually see a gap; never actually “noticed this gap * * * until the impact occurred.” Immediately before and at the time of the collision he was watching ahead — “looking ahead at Point” — and was slowing down, intending to pull over on Point and stop to pick up a fellow employee whom he had seen in front of the Fleet station. He was “looking directly almost ahead, out of the corner of [his] eye [he] was watching the line. * * * [His] eyes [were] concentrated in front of [him].” First he said he did not see Mrs. Zallc’s car at all before the cars came into collision. Later he said that at the moment of impact he saw “the flash of a car and that was it,” but did not see a blinking directional signal at any time before the impact. He could not tell whether Mrs. Zalle’s car was moving and .could not estimate its speed. Mr. Underwood was traveling at a speed of between 25 and 30 miles an hour at the time of impact. He did not hear a horn sounded at any time before the impact.

The verdict-directing instruction on behalf of counterclaimant Underwood, Instruction No. 2, follows:

“With reference to Defendant MELVIN UNDERWOOD’S counterclaim for damages against Plaintiff, HELEN ZALLE, the Court instructs you that it was the duty of Plaintiff to exercise the highest degree of care in the operation of her automobile on the occasion mentioned in evidence.
“In this regard, the Court instructs you that if you find and believe from the evidence that Defendant operated his automobile northwardly along the shoulder lane of 'Lemay Ferry Road on the occasion in question and that his automobile came into collision with an automobile operated by Plaintiff while in said lane, and ■ that Defendant was in the exercise of the highest degree of care at all times in question, and if you find that previous to said collision, Plaintiff stopped her automobile on the south bound half of Lemay Ferry Road and then operated her automobile in a left turn across the north bound half of Lemay Ferry Road, and if you find that Plaintiff, in making said left turn operated her automobile into the path of Defendant’s automobile, when Defendant’s automobile was in close and dangerous proximity, and if you find that in the exercise of the highest degree of cafe, Plaintiff should have seen and observed Defendant’s automobile in close and dangerous proximity before she entered its path, but that she failed to so see and observe Defendant’s automobile and was thereby negligent, and if you find that such negligence, if any, 'was a direct and proximate ' cause of the collision in ’question, hnd that' Defendant suffered injury to his person or damage' to his automobile in said collision, then in such event your verdict on the counterclaim must be in favor of the Defendant and against the Plaintiff.”

The contributory negligence instruction given on behalf of Mrs. Zalle, Instruction No. 3, follows:

“The Court instructs the jury that' if you find and believe from the evidence "that on the occasion mentioned in evidence defendant Melvin Underwood was operating his automobile in a northwardly direction on Lemay Ferry Road in the curb lane or ■outside lane of said Lemay Ferry Road, said Lemay Ferry Road having two lañes extending generally northward and two lanes extending generally southward, at' a speed of 30 m. p. h. to 40 m. p. h. within 200 feet of the point of collision and continued at a speed in excess of 25 m. p. h. up to the point of collision and proceeded to pass a lane of stopped automobiles in the center lane of said Lemay Ferry Road also proceeding northwardly; and if you further find that a space or gap was opened in the said center lane of traffic approximately at the point'of collision of a distance of approximately three car lengths; and if you further find that defendant saw or by the exercise of the highest degree of care could have seen a condition of danger, if any, and if you further find that defendant failed to keep a lookout or watch ahead and to his left or west and that in so failing, if you so find, defendant failed to exercise the highest degree of care and was guilty of negligence and that such negligence, if you so find, directly caused defendant Melvin Underwood to be injured, if so, or if you find that such negligence of defendant Melvin Underwood, if any, directly combined and concurred with the negligence, if any, of plaintiff Helen Zalle as submitted in Instruction No. 2, and thereby contributed in part to cause defendant Melvin Underwood to be injured, if so, then in either event, your verdict shall be in favor of the plaintiff Helen Zalle and against the defendant Melvin Underwood.”

It was reversible error to give Instruction No. 3 for the reason that there is not substantial evidence in this record to support a reasonable finding that the party charged with contributory negligence “had the means and ability to have so acted that a collision would have been avoided.” Boehm v. St. Louis Public Service Co., Mo. Sup., 368 S.W.2d 361, 367; Moore v. Ready Mixed Concrete Co., Mo.Sup., 329 S.W.2d 14, 1. c. 25; Creech v. Riss & Co., Mo.Sup., 285 S.W.2d 554, 562. Having the means and ability to avoid a collision means not only the mechanical appliances, such as steering apparatus with which to swerve, signalling equipment with which to warn, or braking appliances with which to slow down or stop, but also the existence of sufficient time and distance, considering the movements and speeds of the vehicles, to enable the party charged to take effective action in avoidance. Negligent failure of Mr. Underwood to keep a proper lookout cannot be established in the absence of substantial evidence from which á jury could find that in the exercise of the highest degree of care he could have seen the Zalle automobile, O’Neill v. Claypool, Mo.Sup., 341 S.W.2d 129, 135, in time thereafter to have taken effective precautionary action.

There was evidence that the brakes on Mr. Underwood’s car were in perfect operating condition, and it is conceded that a collision occurred, but that is not enough. There was no evidence of the ability of Mr. Underwood to slacken the speed or bring his car to a stop at various speeds. It was not shown that Mr. Underwood saw, or could have seen, the gap or the Zalle automobile at any given time after which, by the application of the brakes, he could have taken effective precautionary action. It was not shown that he did not see the Zalle automobile at the earliest possible moment. The drivers admit that neither saw the other any significant time before the collision, and no other witness to the facts having testified, there was no evidence as to the relative speeds of and distances between the two vehicles at any given time. There is nothing in the evidence from which the jury could find where the two vehicles were located in relation to each other at any particular point in time before the impact occurred.

The precise point made by appellant, that the instruction is erroneous for failure to hypothesize sufficient facts, need not be considered because the evidence is insufficient to submit the issue of contributory negligence. “In such situation errors if any in the instructions are wholly immaterial,” . since the issue of contributory negligence should not have been submitted to the jury. Latta v. Robinson Erection Co., 363 Mo. 47, 248 S.W.2d 569, [5], This is the same principle referred to in Bello v. Stuever, Mo.Sup., 44 S.W.2d 619, 620, [2], and in the many cases reported in Missouri Digest, Appeal & Error, *^1068(3).

In an effort to salvage this instruction Mrs. Zalle contends that the only facts claimed to have been omitted are the location and general movement of the automobiles and that these facts were undisputed and need not have been hypothesized. It is argued that the jury was given only one set of facts; that each driver testified to the location and movements of his vehicle and that he did not see the other car until the moment of impact; that no other witnesses testified as to the accident, and therefore there was no dispute as to essential facts. We disagree. No witness testified, and from the testimony of the parties it cannot be determined, where the Underwood car was when Mr. Underwood reasonably could be held to have anticipated that Mrs. Zalle was intending to make a left turn and operate her automobile through the gap into the path of his car, or whether, when the two cars came into close and dangerous proximity, there was time for him to have taken effective preventive action by slowing the speed or stopping his car, or whether he had the means at hand to do so.

Mrs. Zalle urges that Instruction No. 3 is saved, and that it includes all of the essential facts, by virtue of its reference to Mr. Underwood’s verdict-directing Instruction No. 2; that since No. 2 hypothesized the facts about which appellant is concerned, and was referred to in No. 3, the jury was fully apprised. It is true that it is not always necessary for a verdict-directing instruction to recite all of the facts essential to a verdict, provided it makes reference to other instructions which do properly hypothesize facts. Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496, 500. Instruction No. 3, however, does not incorporate by reference facts in Instruction No. 2 essential to the establishment of negligence on Mr. Underwood. On the contrary, No. 2 contains a finding that at all times in question Mr. Underwood was in the exercise of the highest degree of care, and the recital of facts in No. 2 relates to the negligence of Mrs. ZaUe. It does not supply the missing links in the chain of contributory negligence sought to be locked onto Mr. Underwood. Furthermore, none of the facts submitted in No. 2 are required by No. 3 to be found, for the reference to No. 2 is in the alternative, so the jury may have found Mr. Underwood guilty of contributory negligence under erroneous Instruction No. 3, without having applied the alternative clause.

Respondent asserts that appellant has no right to complain about the error in Instruction No. 3, because appellant failed to offer amplifying or clarifying instructions. While it is true that an adverse party will not be heard to complain in the absence of a request for a more specific instruction where an instruction is correct in its general scope and does not amount to misdirection, and is merely indefinite, “it is not incumbent upon appellant to seek a more specific instruction, supplying the deficiency and correcting the error of plaintiff’s main instruction in order to render an objection thereto available.” (Our emphasis.) Raymond, Missouri Instructions, Perm.Ed., Vol. 1, § 41. There is no duty upon a party to correct an erroneous and misleading instruction of his opponent. Bresler v. Kansas City Public Service Co., 239 Mo.App. 228, 186 S.W.2d 524, 530, [10]. “The mentioned rule does not apply where the questioned instruction is erroneous as a matter of law, as it was in this case * * Bramson v. Henley, Mo.Sup., 353 S.W.2d 609, 616, [3].

The judgment is reversed for error in giving Instruction No. 3, and the cause is remanded for a new trial on the counterclaim.

COIL and WELBORN, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: WELBORN, Commissioner.

text:
    Coliman H. KETRING, Hugh Williamson and Mo-Ark Optical Company, a Corporation, Plaintiffs-Appellants, v. Robert STURGES, Ernest J. Tietjen, Jr., Russell C. Powell, John E. Scott and Angelo P. George, as Members of and Constituting and Acting as the Missouri State Board of Optometry, Defendants-Respondents.
    No. 49924.
    Supreme Court of Missouri, Division No. 1.
    Nov. 11, 1963.

      E. L. McClintock, Jr., Flat River, for appellants. .
    Thomas F. Eagleton,-Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondents.
    Albert E. Schoenbeck, St. Louis, for ami-cus curiae.
   WELBORN, Commissioner.

This is an action for declaratory judgment respecting the validity of certain provisions of statutes regulating the practice of optometry in Missouri, and rules promulgated by the Missouri State Board of Optometry.

Appellant Coliman H. Ketring is a licensed and registered optometrist tinder the Missouri law. He is also the president and a stockholder of the Mo-Ark Optical Company, a Missouri corporation. Appellant Hugh Williamson, an optician, who is neither a licensed optometrist nor a licensed physician or surgeon, is an employee of Mo-Ark.

On March 20, 1962, a letter signed- by Doctor Ketring as president of Mo-Ark, was circulated to Mo-Ark’s customers who included, but were not limited to, optometrists and physicians and surgeons. In the letter, Mo-Ark announced its intention to enter the contact lens field. The letter requested customers to send Mo-Ark their refraction findings. Mo-Ark then would supply the lenses and, according to. the letter, have Williamson insert the lenses in the patient’s eyes and fit them to the patient’s particular needs. The letter further stated that Williamson would make all modifications and adjustments in the lenses. It also stated that it would be helpful if measurements of the radius and proportions of the patient’s cornea were sent with refraction findings, but, if the customer preferred, Williamson could make such measurements for the patient.

On March 23, 1962, Mo-Ark published an advertisement in the Poplar Bluff Daily American Republic, as follows:

“MO — ARK OPTICAL COMPANY 403 South Broadway, Poplar Bluff
Offers You:
Complete visual care by a state registered optometrist.
Frames and lenses of the finest quality Single vision lenses $15.00
Eyeglass repairs at lowest prices. Reasonable terms.
MO-ARK OPTICAL COMPANY DR. C. Hi KETRING, O. D.
President
-Phone SU 5-6611”

In the advertisement, the words,,“Mo-Ark Optical Company” in the first line were in print approximately twice the size of that in which Ketring’s name appeared.

On March 30, 1962, the Missouri State Board of Optometry addressed a letter, signed by its president, respondent Robert G. Sturges, to Doctor Ketring. In its letter, the board expressed the position that Williamson, not being a registered optometrist or registered apprentice, was not, unless he was a physician or surgeon, permitted to examine and measure eyes or to fit, modify, adjust or insert contact lenses in Missouri. The letter called attention to board rules 8, 13 and 14, as follows:

“8. Every registered optometrist or registered apprentice whose name or office address or place of practice appears or is mentioned in any advertisement of any kind or character shall be presumed to havé caused, allowed, permitted, approved and sanctioned such advertisement and shall be personally and professionally responsible for the content and character thereof until and unless he shall offer clear and convincing evidence that he did not cause, allow, permit, approve or sanction such advertisement.”
“13. It shall be deemed ‘dishonorable conduct in optometric practice’ for an optometrist to permit, allow or cause a person, who is not a registered optometrist or a licensed physician or surgeon, to use said optometrist’s prescription or optometric findings to fit contact lens upon a patient or member of the public.”
“14. It shall be deemed ‘dishonorable conduct in optometric practice’ for an optometrist to enter into an agreement or arrangement whereby he permits, allows or causes a person, who is not a registered optometrist or a licensed physician or surgeon, to do any one or any combination of the following acts upon a patient or member of the public:
(1)examine the eye to ascertain the presence of defects or abnormal conditions of the eye;
(2) take an impression mold of the eyeball;
(3) determine the corrective qualities to be incorporated in a contact lens; or
(4) adjust or fit a contact lens to the eye.”

The letter also called attention to Section 336.190(3), making the following act a misdemeanor:

“(3) Permitting any person in one’s employ, supervision or control to practice optometry, unless that person has a certificate of registration as a registered optometrist.”

The letter also, with reference to the newspaper advertisement, called attention to board rule 12, as follows:

“12. An optometrist shall be deemed to be advertising, practicing or attempting to practice under a name other than his own name if he permits, allows or causes any advertisement of eyeglasses or optometric services to be published that gives greater prominence in said advertisement to the name of a person, who is not a registered optometrist or physician or surgeon, than it gives to the individual name of the optometrist.”

The board also referred to Section 336.-110, subd. 1 (6) and (7), which authorized the board to suspend or revoke the certificate of registration of an optometrist for:

“(6) Advertising, practicing or attempting to practice under a name other than one’s own;
“(7) Advertising, directly or indirectly, prices or terms for optometric services.”
The letter concluded with this paragraph:
“You are therefore notified that if you and the Mo-Ark Optical Company put into operation said plan to enter the contact lens field in the manner outlined in your said circular letter, or if you and said corporation again publish an advertisement substantially in the form of the one enclosed herewith, or if said Company does engage in ‘procuring’ business for a registered optometrist, this Board shall take, and cause to be taken, all appropriate legal actions against the Mo-Ark Optical Company, you and any other optometrist involved.”

On April 5, 1962, this action was instituted by appellants against the respondents, the individuals comprising the Missouri State Board of Optometry. Appellants sought a declaratory judgment that Sections 336.150 and 336.160 are unconstitutional because of their unlawful delegation of legislative power. They asked the court to declare rules 8, 12, 13 and 14 of the board invalid as beyond the scope of Chapter 336 and inconsistent therewith. In the alternative, they asked the court to declare that such rules and Sections 336.190 and 336.110, subd. 1(6), (7) and (8), are not applicable to and prohibitive of the proposed operation of the appellants.

The respondents, in their answer, asserted the validity of the statute and rules and their application to appellants’ proposed operation. In addition, respondents asked the court for a declaration to the effect that anyone taking an impression of an eyeball for a contact lens, measuring the eye for a contact lens, determining the corrective qualities to be incorporated in such lens, inserting such lens in the eye, or adjusting or fitting the lens, must be a registered optometrist or a physician or surgeon licensed to practice in this State.

The case was tried on an agreed statement of facts, which, in addition to the foregoing matters, contained the following:

“It is not intended that any of the plaintiffs will fabricate the contact lenses to be furnished to the public. Before contact lenses may be fabricated by others, however, the size, shape and curvatures of the cornea of each eye of the patient must be measured by someone and such measurements given to the fabricator. Such measurements involve judgments on the part of the person making them inasmuch as mechanical tests for size and shape are not conclusive and inasmuch as in certain instances the curvatures of the lenses may vary from the curvatures of the cornea. It is intended that the plaintiff Hugh Williamson will make such measurements.
“In fitting contact lenses, the lenses are inserted into the eyes of the patient. Contact lenses must be minutely exact in order to function properly. An improperly fitted lens may produce trauma to the eye or an infection in the eye. The process of fitting and adjusting contact lenses is a time consuming process and may involve many visits by the patient to the person doing the fitting. When a lens does not fit properly, it must be modified either by the fabricator, upon instructions from the person fitting the lenses, or by that person himself. It is intended that the plaintiff Hugh Williamson will perform the acts set forth and described in this paragraph.”

The circuit court entered a judgment holding Sections 336.150 and 336.160 constitutional and valid, holding rules 8, 12, 13 and 14 of the board constitutional and valid, and finding that such rules and Sections 336.110 and 336.190 are applicable to certain specified intended acts of respondent Ketring. The court also found that Sections 336.180 and 336.190 are applicable to and prohibitive of certain of the intended acts of Williamson and Mo-Ark. The court also entered the declaration prayed for by respondents regarding contact lenses.

After appellants’ motion for rehearing was overruled, they appealed to this court.

By reason of the attack on the constitutionality of Sections 336.150 and 336.-160, we have jurisdiction of this appeal.

Section 336.150 sets out the general powers of the board of optometry. The portion which appellants attack is that which confers upon the board authority “to do all other things necessary to carry out the provisions of this chapter.” This grant of authority is attacked as vague and indefinite, and thereby constituting an illegal delegation of legislative power in violation of Section 1 of Article III of the Constitution of Missouri, 1945, V.A.M.S., which vests the legislative power in the General Assembly. This attack is obviously not well founded. The provision in question is nothing more than a recital of authority which the board would possess, even in the absence of such provision. State ex inf. Wallach v. Schneider’s Credit Jewelers, Mo.App., 243 S.W.2d 125, reversed on other grounds, Mo. 272 S.W.2d 289; State ex rel. Public Service Commission v. Padberg, 346 Mo. 1133, 145 S.W.2d 150, 151. Furthermore, appellants’ attack is basical ly upon the regulatory power of the board and rules issued thereunder. No showing is made that the board is in any manner in this controversy relying upon its general powers under Section 336.150.

As for Section 336.160, that section reads, in part, as follows: “The state board of optometry may adopt reasonable rules and regulations within the scope and terms of this chapter for the proper administration and enforcement thereof.” This provision is also attacked as an unlawful delegation of legislative power in violation of Section 1 of Article III. The complaint is that the provision is vague and indefinite in that it does not impose sufficient standards for the board’s exercise of the rule-making power which it grants. In support of this attack, the appellants refer to the general rule, set out in 41 Am.Jur., Physicians and Surgeons, Section 19, p. 146, regarding the necessity for standards in the delegation by the legislature of the rule-making function. They then cite two cases claimed to support this contention that Section 336.-160 does not comply with the general requirement of standards. The cases are Abelson’s v. State Board of Optometry, 5 N.J. 412, 75 A.2d 867, 22 A.L.R.2d 929, and Sage-Allen Co. v. Wheeler, 119 Conn. 667, 179 A. 195. Neither of these cases would support a finding of invalidity of the statute here challenged. In both cases, there were statutory provisions similar to Section 336.160. The New Jersey statute authorized the State Board of Optometry to make “such rules and regulations not inconsistent with the law, as may be necessary, for the proper performance of its duties * * *.” R.S. 45:12-4, N.J.S.A. The Connecticut act authorized the State Board of Examiners in Optometry to make such rules and regulations “not inconsistent with law” as might be necessary to govern the practice of optometry as a profession. Gen. St.Supp.1933, Section 792b. In neither of the cases was the attack upon such provision. Its validity was assumed. In the New Jersey case, the court did strike down as an invalid delegation of power a provision authorizing the board to revoke or suspend a license for “conduct which, in the opinion of the board, is of a character likely to deceive or defraud the public.” However, as for the general grant of authority to issue regulations, the court stated:

“This is a grant of administrative power for the execution of the statutory policy; and its exercise is of necessity restrained by the declared policy and spirit of the statute and the criteria and standards therein laid down, for a grant not thus confined would constitute a delegation of essential legislative power in contravention of constitutional limitations.”' 75 A.2d 872.

In the Connecticut case, the court considered regulations which the board had promulgated to define “immoral, fraudulent, dishonorable or unprofessional conduct,” as used in the statute. In upholding the authority to issue such regulations, the court •stated: “In furtherance of its general purpose and to carry out the details of its plan of regulation, the Legislature could properly vest the board with power to make regulations reasonably adapted to assure the competency of optometrists and to prevent conduct on their part which would tend to do harm to the public.” 179 A. 200.

We have no doubt that the grant here involved is valid and not defective in the respects urged by appellants. The legislature clearly has the right to confer upon an administrative body the authority to issue rules and regulations for the administration and enforcement of a statute which it is the agency’s duty to administer and enforce. Such a grant is in no respect an improper delegation of legislative power. Without detailing the numerous provisions of Chapter 336, its examination reveals well-defined legislative policy and standards to which the board’s rules must conform. “Where * * * the legislature has established a sufficiently definite policy, standard, or rule, it may, without violating the rule prohibiting the delegation of legislative power, authorize an administrative officer or body to adopt and enforce rules, regulations, or orders relating to the administration or enforcement of the law, to carry out the purpose of the legislature as expressed by it.” 73 C.J.S. Public Administrative Bodies and Procedure § 32, p. 331; Borden Company v. Thomason, Mo.Sup., 353 S.W.2d 735, 751. See Rust v. Missouri Dental Board, 348 Mo. 616, 155 S.W.2d 80, 85.

Appellants attack rule 8, above quoted, .as being beyond the scope of the board’s regulatory powers. They state that sub-paragraphs (5), (6) and (7) of Section 336.110, subd. 1 express the position of the legislature with regard to advertising and that this rule attempts to exercise legislative power by declaring that a person accused of improper advertising by the board is guilty - until he proves himself innocent. Of ■ course, all that the rule attempts to do is to establish a rebuttable presumption of responsibility for advertising. See Kee v. Baber, 157 Tex. 387, 303 S.W.2d 376, 380; 73 C.J.S. Public Administrative Bodies and Procedure, § 124, p. 444. In any event, Ketring, being the only registered optometrist among the appellants, is the only one of them affected by this rule. He signed the letter of March 20, so that such presumption would not be unreasonable as to it, with or without the rule. As for the newspaper advertisement, the stipulation of facts recites that Ketring knew in advance of its publication and directed and approved of such publication. Thus, it would be unnecessary to invoke the rule with respect to that advertisement. No allegation is made concerning plans for future advertisements and in such circumstances we see no need to speculate upon the validity and effect of the rule in other factual situations.

As for rule 12, appellants argue that it is an enlargement of Section 336.110, subd. 1(6), which could be made only by the legislature itself. They assert that the rule creates a new offense and bears no reasonable relation to the legislative prohibition. The rule does not, on its face, purport to prohibit activity not proscribed by the legislature. It attempts to describe some activity which will be considered within the legislative prohibition, found in Section 336.110, subd. 1(6), authorizing suspension or revocation of the license of an optometrist for “ [advertising, practicing or attempting to practice under a name other than one’s own.” As such, it is an “interpretative regulation.” “The law is embodied in the statute, * * 1 Davis, Administrative Law Treatise, Section 5.05, p. 315.

Respondents and amicus curiae, the Missouri Optometric Association, assert that the rule is designed to prevent the practice of optometry by unlicensed persons or corporations. Respondents assert: “Advertisements designed to persuade the public to use a particular optometrist should be so worded that the public is made aware of the name and qualifications of such optometrist. Advertising that gives greater prominence to an assistant who may not be licensed or a corporation which may not practice is misleading to the public.” Ami-cus curiae states: “Publishing an advertisement in which the name of an unregistered layman or corporation is printed in type many times the size of the type in which the name of the registered optometrist is printed is but a devious and sly means of permitting the optometrist to practice under a name other than his own.”

In the case of Golding v. Schubach Optical Co., 93 Utah 32, 70 P.2d 871, 1. c. 875, the court described the object of a statutory provision such as that here involved as follows: “Subdivision (6) of the section setting forth what constitutes ‘unprofessional conduct’ reads: ‘Advertising, practicing or attempting to practice under a name other than his own.’ This, of course, means masquerading under another name, using the name of another person instead of one’s own, concealing one’s real identity, taking one’s license under a false or assumed name; (thereby perhaps concealing matters which would prevent one getting a license) and kindred deceits and false parading.” See also Berger v. Board of Examiners in Optometry, 74 R.I. 165, 59 A.2d 717. No case has been cited by the proponents of the rule in which any court has held that an advertisement of the sort that the rule would prohibit constitutes advertising .under a name other than one’s own. On the other hand, the rule clearly contemplates that the name of the optometrist will appear in the advertisement, so his identity will not be concealed or unknown. In such circumstances, the licensed optometrist could hardly be said to be masquerading under another name, using the name of another instead of his own or concealing his real identity. Furthermore, this rule places the major emphasis on the comparative prominence given the name of the optometrist and of the unregistered person. If they are given equal prominence, no fraud on the public is practiced. If the name of the optometrist appears less prominently than the name of the unlicensed individual, the public is defrauded. We believe that the legislative enactment cannot properly be given such a meaning, and the rule is, therefore, invalid.

We would note, in this connection, that the Missouri General Assembly has not gone to the lengths that the legislatures of other states have gone in prohibiting or regulating advertising by optometrists. See Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563; Head v. New Mexico Board of Examiners in Optometry, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983. Nor are the statutory limitations on advertising by optometrists as broad as those applied to dentists (Section 332.160) and considered in Rust v. Missouri Dental Board, 348 Mo. 616, 155 S.W.2d 80, relied upon by respondents.

Nor has the Missouri Legislature expressly prohibited a licensed optometrist from being employed by an unlicensed person or corporation. See State ex inf. McKittrick v. Gate City Optical Co., 339 Mo. 427, 97 S.W.2d 89; Bennett v. Indiana State Board of R. & E. in Optometry, 211 Ind. 678, 7 N.E.2d 977; Kay Jewelry Co. v. Board of Registration in Optometry, 305 Mass. 581, 27 N.E.2d 1; Neill v. Gimbel Bros., 330 Pa. 213, 199 A. 178; Michell v. Louisiana State Board of Optometry Examiners (La.App.,), 146 So.2d 863. Extension of limitations in such regard is a matter for the legislature and may not be achieved by administrative rule beyond the scope of our present statutes.

Rules 13 and 14 define “dishonorable conduct in optometric practice” as employed in Section 336.110, subd. 1(8), authorizing the board to suspend or revoke a license on such grounds. In a sense, these are interpretative rules. However, in view of the legislature’s failure fully to define the term and in view of the authority conferred upon the board, these rules assume a legislative character. Quite clearly, the legislature could confer upon the board the authority to revoke a license for “dishonorable conduct” without specifying every act which should constitute dishonorable conduct, and leave it to the board to determine in a particular case what amounts to dishonorable conduct. State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943, 949. In view of the regulatory authority conferred upon the board, they could, as they saw fit, define in advance some conduct which they would consider dishonorable. The board’s judgment in such matters should be disturbed only if the rule is unreasonable. 1 Davis, Administrative Law Treatise, Section 5.05, p. 315; King v. Priest, 357 Mo. 68, 206 S.W.2d 547. Further, greater deference should be paid the board’s determination because they, being members of the profession, are more aware of the standards of conduct which the profession exacts of its members, and thus are in a better condition to judge what is dishonorable conduct in the practice of an •optometrist. Rust v. Missouri Dental Board, 348 Mo. 616, 155 S.W.2d 80, 85.

As for the rule in question, Section 336.-190 makes the practice of optometry without a license a misdemeanor. Certainly, aiding and abetting such practice could properly be considered dishonorable conduct in optometric practice. We then must look at the prohibited activities in order to determine whether or not they constitute the practice of optometry. Essentially, the prohibited activity is assisting or employing unlicensed persons in handling contact lenses. Inasmuch as the matters are a subject of the trial court’s declaration which appellants allege to be erroneous, we will consider that declaration.

Section 336.010 defines the practice of optometry as follows:

“(1) The examination of the human eye, without the use of drugs, medicines or surgery, to ascertain the presence of defects or abnormal conditions which can be corrected by the use of lenses, prisms or ocular exercises.
“(2) The employment of objective or subjective mechanical means to determine the accommodative or refractive states of the human eye or the range of power of vision of the human eye.
“(3) The prescription or adaptation without the use of drugs, medicines or surgery, of lenses, prisms, or ocular exercises to correct defects or abnormal conditions of the human eye or to adjust the human eye to the conditions of special occupation. * * * ”

The factual submission here relates solely to measurement of the eyeball for contact lenses and their fitting and adjustment. We will confine our consideration of the rules to the provisions which cover those aspects of the practice.

Appellants contend that the rules are invalid because measurement of the eyeball and fitting of contact lenses are purely mechanical functions, exempt from the scope of the practice of optometry under Chapter 336 by Section 336.120(2), which exempts: “Persons, firms and corporations, not engaged in the practice of optometry, who sell eyeglasses or spectacles in a store, shop or other permanently established place of business on prescription from persons authorized under the laws of this state to practice either optometry or medicine and surgery.”

One difficulty with appellants’ position that these functions are purely mechanical arises from the agreed statement of facts in the case. As above set out, appellants have agreed that the measurement of the cornea for contact lenses is not a purely mechanical function. They agree that it also involves the exercise of judgment. Likewise, the stipulation regarding the problems and factors involved in the fitting and adjustment of contact lenses shows that these procedures are not pyrely mechanical.

An Oregon-statute (O.R.S., Section 683.-010(2)) defines the practice of optometry as the “employment of any means other than the use of drugs for the measurement or assistance of the powers or range of human vision or the determination of the accommodative and refractive states of the human eye or the scope of its functions in general or the adaptation of lenses -or frames for the aid thereof.” In the case of State ex rel. Reed v. Kuzirian, 228 Or. 619, 365 P.2d 1046, 88 A.L.R.2d 1284, the Oregon Supreme Court held that a person who inserts, fits and adjusts contact lenses into the eye of any person was engaged in the practice of optometry within the meaning of the Oregon law.' -The contention' of the defendant in that casé was similar to that of appellants here. ’

Ip, reaching this conclusion, the court stated: “Above all, however, it is clear from the evidence without any reasonable doubt, that the fitting of the lenses required some degree of professional skill and judgment.” The .court further stated: “There was other testimony which established -that the mechanical tests for size and shape were not conclusive and that the peculiar nature of the lens and- shape of each individual’s eye required professional judgment as well as mechanical exactness.” 365 P.2d 1049. The stipulation of facts on which this case was submitted clearly supports the same conclusion regarding the nature of the acts in question as. that reached by the Oregon court.

A result contrary to that reached by the Oregon court ^ was reached in High v. Ridgeway’s Opticians; 258 N.C. 626, 129 S.E.2d 301. In that- case, the court concluded that North Carolina statutes licensing both optometrists- and opticians were broad enough to permit an optometrist to fit contact lenses and also authorized a dispensing optician to do so upon prescription of a physician, oculist or optometrist. The plaintiff, in the High case, relied upon the Oregon case above cited. However, the North Carolina court concluded that the North Carolina statutes were different from the Oregon act in regard to what opticians may or may not do. The court stated:

“It appears that the Supreme Court óf Oregon is the only appellate court of last resort in the several1 states -that has heretofore passed on the question presented on this appeal. Even so, the difference in the statutory provisions in Orgeon and those in this State with respect to opticians and what they may and may not do are substantially different. In our opinion, so long as the dispensing optician fabricates, fits and inserts contact lenses -in the eyes in accordance with the prescriptions of examining physicians or oculists, and- requires the patient to return to the examining physician or oculist in order that the writer of the prescription may determine whether or not the prescription has been properly filled and the contact lenses properly measured, fabricated and fitted,- such optician is not engaged in the practice of optometry within the meaning of the statute.” 129 S.E.2d 305.

Appellants here also cite Commonwealth v. Stemet, 21 Pa.Dist.&Co.R.2d 295 (Pa.). In that case, the trial court, in a criminal proceeding charging the practicing of optometry without a license, concluded that “defendants by measuring the curvature of the eye in order to grind contact lenses” had not violated the statute. Construing the statute strictly because of the criminal nature of the action, the court held that the legislature “intended only to regulate the examination of the eyes for the purpose of ascertaining defects of vision correctable by the application of lenses and not the making'of lenses to conform to existing prescriptions. The latter, being a purely mechanical function, constitutes the business of the optician and is not a professional function.” 21 Dist.&Co.R.2d 297.

In view of the agreed statement of facts in this case, and in the absence of any statute that would authorize opticians to measure the eyeball or to insert and adjust contact lenses, we are of the opinion that the trial court properly found that the performance of such functions does constitute the practice of optometry under the laws of this state.

Having reached this conclusion, we likewise conclude that rules 13 and 14, insofar as they relate to such matters, do define as dishonorable conduct assistance in activities which would constitute the practice of optometry by an unlicensed person. As such the regulations are reasonable and within the authority of the board.

In their petition and in their points and authorities in their brief in this court, appellants assert that rules 13 and 14, if otherwise valid, have the effect of granting to registered optometrists exclusive rights and privileges to perform certain mechanical functions, “in direct violation of Article III, Section 40(28) of the Constitution of Missouri.” This assertion is coupled with their attack on the invalidity of the four questioned rules as beyond the board’s powers. No authority is cited on the constitutional objection and the matter is not argued or otherwise developed in the brief.. In such .circumstances, the objection must be deemed to have been abandoned. Lansford v. Southwest Lime Co., Mo.Sup., 266 S.W.2d 564, 565. Furthermore, we have previously concluded that the questioned functions are not purely mechanical.

In addition to its adjudication with respect to the validity of Sections 336.150 and 336.160, RSMo, and rules 8, 12, 13 and 14, the court entered the following judgment:

“3. Sectidns 336.110 and 336.190, Revised Statutes of Missouri, 1959, and Rules 8, 12, 13 and 14 are applicable to and prohibitive of the acts and intended acts of the plaintiff Coliman H. Ketring in:
“(a) causing the publication of an advertisement of eye glasses and op-tometric services that gave greater prominence to the name of a person, who is not a registered optometrist or a licensed physician or surgeon, than it gave to his own name;
“(b) causing the publication of an advertisement, directly or indirectly, advertising prices and terms for optome-tric services;
“(c) engaging in dishonorable conduct in optometric practice by soliciting op-tometric practice for a layman by means of a circular letter and a newspaper advertisement; and
“(d) intending to engage in dishonorable conduct in optometric practice by permitting a layman, under his control as an employee of the corporation of which he is president, to practice optometry without a certificate of registration as a registered optometrist.”

As to subparagraph (a), we have prw viously concluded that rule 12, which is thu. basis for this adjudication, is beyond the scope of the board’s regulatory power.

As for subparagraph (b), the advertisement in question included this language: “Single vision lenses $15.00. Eyeglass repairs at lowest prices. Reasonable terms.” No other reference to prices or terms appears. Section 336.110, subd. 1(7) does limit the right of an optometrist to advertise “directly or indirectly, prices or terms for optometric services.” The advertisement in question refers to the price of lenses and for repair of eyeglasses. Clearly, under Section 336.120(2) and (3), these are' not optometric services. As above pointed out, Missouri has not limited advertising of the price of eyeglasses as have some states. ■ In such circumstances, we find no basis for this declaration.

The pleadings do not disclose that either party sought a declaration on the matter to which subparagraph (c) is directed. There is no indication that the board took the position that the circulation of the letter and the newspaper advertisement constituted “dishonorable conduct” in the practice of optometry on the basis herein specified.

As to subparagraph (d), we have heretofore indicated the proposed operation involving Williamson and Mo-Ark would, at least insofar as the planned activities of Williamson are concerned, involve Williamson’s practice of optometry without a license. Of course, merely planning or intending to enter into such an operation would not constitute a violation of the statutes or rules by Ketring. Furthermore, the statute and rules speak of the non-licensed person’s being under the “control” of the licensed individual. Ketring is president of Mo-Ark. However, there is nothing in the record here to indicate the extent of his control over Williamson. We would not presume control of Williamson by Ketring. See Sections 351.310 and 351. 360, subd. 2, V.A.M.S.

Furthermore, as to the declaration that Rule 13 is applicable to the proposed acts of Ketring, there is no factual basis for such declaration. Rule 13 defines as unprofessional conduct an optometrist’s permitting his optometric findings to be used by an unlicensed person in the fitting of contact lenses. There is nothing in the record to show that Ketring proposed to do this. The letter of Mo-Ark did call upon the customers of the company to furnish their findings in order to aid Williamson, but no reference is made to Ketring’s doing so. Therefore, this declaration would not be authorized.

We are also of the opinion that any declaration as to the handling of contact lenses constituting the practice of optometry should he limited to the matters in issue between the parties to this action. Any further definition might well involve factual considerations not here presented and no attempt should be made to pass upon them.

As above indicated, the judgment of the trial court is affirmed in part and reversed in part, and the cause is remanded to the trial court with directions to modify the judgment consistently with the views herein expressed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . Chapter 330, RSMo 1959, V.A.M.S. Unless otherwise indicated; chapter, and section references herein are to this revision of the Revised Statutes of Missouri.

      . Inasmuch as the reliance here is solely upon the advertisement to show that Ketring was practicing under a name other than his own, we need not consider what effect, if any, the amendment subsequent to the Gate City case of subseetion (2) of Section 336.120 in 1947 (Laws of Mo., 1947, Vol. 1, p. 414) by the insertion of the words “not engaged in the practice of optometry” might have on the conclusion reached in the Gate City case.

      . In State ex rel. Reed v. Kuzirian, supra, the Oregon court concluded that the evidence showed that the optician “may have had a proper function to fulfill when he assisted the doctor in fitting contact lenses within the actual personal supervision of the professional person.” Therefore, the injunction issued contained an exception in instances when the defendant was “acting under direct personal supervision of legally qualified personnel.” 365 P.2d 1050. No issue in this regard has been presented in this case.