author: HIGGINS, Commissioner. HYDE, Presiding Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. BALLWIN PLAZA CORPORATION, a Corporation, Appellant.
    No. 50330.
    Supreme Court of Missouri, Division No. 1.
    Sept. 14, 1964.
    Motion for Rehearing or for Transfer to Court En Bane Denied Oct. 12, 1964.
    Robert L. Hyder, Jefferson City, Samuel C. Ebling, Edwin B. Brzezinski, Kirkwood, for respondent.
    Walter S. Berkman, St. Louis, for appellant.
   HIGGINS, Commissioner.

This case comes to the writer by reassignment. The case is a condemnation suit in which commissioners awarded appellant the sum of $98,700. Both parties excepted and the jury verdict was for appellant in sum $20,000. Judgment was then entered against appellant upon such verdict for the difference between the award and verdict in sum $78,700. Appellant seeks relief from the judgment and, with the amount thereof being in excess of $15,000, the Supreme Court has jurisdiction. Section 477.040, RSMo 1959, V.A.M.S.

This action was instituted October 21, 1960, to acquire a part of defendant’s land which abutted the north side of Route 100 (Manchester Road) in Ballwin, Missouri. This, together with other lands in the area, was being appropriated for the purpose of widening said Manchester Road between Manchester and Ellisville for a distance of about eight miles. The land taken from defendant was a strip 30 feet wide across the entire 883.10 feet of frontage containing 26,572 square feet. The defendant owned a “community shopping center” at the location in question, and the area taken was intended for parking. The date of taking was stipulated as April 25,1961.

Route 100, or Manchester Road, runs generally east and west through St. Louis County. It was a 2-lane concrete roadway prior to the taking in question with each lane being nine feet in width. Access along defendant’s entire frontage was not limited before, or by, the taking. Prior to the taking defendant was permitted by the state highway commission to utilize its right of access via four entrances constructed along the north side of the road and ranging in width from 41 to 49.3 feet. The construction plans filed in connection with the condemnation petition provided for replacement of such entrances at approximately the same locations, all to be 50 feet wide. The planned construction would cause Manchester Road to become two lanes 12i4 feet wide in each direction with a 10-foot shoulder on each side of the roadway. The shoulder was to be of oiled aggregate, a “stabilized shoulder,” and by its use turning angles at the entrances would be wider. The road as thus changed was intended for vehicular travel at 40 miles per hour and the purpose of the changes was “to move traffic through the area in a more efficient manner.”

Defendant’s shopping center consisted of various store buildings constructed in a “U.” The buildings contained approximately 155,000 square feet of floor space. The land taken was intended to provide 82 parking places. The parking area remaining after the taking provided 967 parking spaces. Although disputed by plaintiff, defendant produced testimony tending to show that this shopping center was short of parking space before the taking and therefore damaged by the loss of parking space. In an attempt to mitigate damages defendant purchased three adjacent tracts for replacement of the lost parking area.

There was evidence of damages adduced by defendant ranging from $105,250 to $300,000, and by plaintiff ranging from no damage to $15,000.

Appellant’s principal contention on this appeal is that the trial court erred in the manner of its submission of special benefits to the jury.

Plaintiff had the burden of proving special benefits and presented the testimony of five witnesses on this issue. Such witnesses were experienced real estate appraisers.. One testified that fair market value of the-land and improvements prior to the taking was $2,433,181 and that it was $2,409,681 after the taking, a difference of $23,500. This witness further testified that he considered as special benefits a better turning radius, the safety of ingress and egress by the shoulder and added lane and the width of the driveway; that the value of these-benefits was $8,500, leaving net damage of $15,000. Another witness determined a value before taking of $2,332,269 and after taking of $2,322,522, a difference of $9,747. This witness considered wider entrances- and larger turning radius, stabilized shoulders, and better flow of traffic to be special benefits worth $10,955, and thus arrived at a figure of no net damage. Another witness for plaintiff placed the before value-at $2,373,600 and the after value at $2,360,-300, a difference of $13,300. He then allowed special benefits for the property being more accessible and easier to turn into by virtue of the improved road conditions and. that the benefits were worth $28,464, a net. benefit of $15,200. Still another witness placed the before and after values at $2,-331,902, and therefore no damages. In-other words, he offset the taking of the-30-foot strip, the loss of parking thereon,, and any resulting damage therefrom, with special benefits which he considered to be “the placement of a four lane highway in front of the property * * and better traffic flow. Yet another witness placed the before value at $2,421,500 and the after value at $2,412,500, which latter figure included $8,500 for special benefits, leaving a difference of $9,000 as damages; that he considered the expansion of two lanes into four lanes; the 10-foot stabilized shoulder and the widened entrances as such special benefits.

Defendant was not without expert testimony on the issue of benefits as well as on its damages. Defendant called one witness, who placed the fair market value of the entire property before the taking at $2,589,-000 and at $2,400,000 after the taking. He valued the land taken at $20,000 and the severance damage to the remainder at $169,000, a total damage of $189,000. Another witness for defendant placed the value before taking at $2,576,300. He valued the land taken at $15,950 and the severance at $178,500, a total damage of $194,450, rounded to $194,500. This witness testified that he would deduct from this figure the sum of $89,250 which he considered as an “economic” benefit. Prior to this item in his testimony, this witness had testified that the widening of the highway will help the property because the traffic will move faster and that this same advantage mill inure to all other properties in the entire vicinity; that all properties including property off the highway would he benefited, “the entire area will be benefited.” In connection with the value of such benefits the witness stated that the property would be benefited the ■same or more if the parking area were not taken because it would have the additional parking available on the 30-foot strip. The “owner” testified that the value of the center before the taking was $2,750,000, and $2,450,000 after the taking, a damage of $300,000. He disputed the benefits and advantages, testifying that an easier flow of ■traffic on the widened highway would be a •disadvantage because the widened road will .have four lanes, making it more difficult to get into the shopping center; that the 4-lane highway will cause traffic to move faster and create a hazard.

Appellant charges that Instruction 5 is an erroneous submission of the issue of special benefits. The instruction follows:

“The Court instructs you that the just compensation to which the Defendant may be entitled for any taking or damaging of its property for public use in the construction or widening of State Highway 100 may be received in either the form of money or in the form of special benefits, or part in the form of money and part in the form of special benefits.

“If you find from the evidence that the Defendant’s property has received any benefits from the construction or widening of the Highway by the Plaintiff, as described in evidence, because of said property’s position abutting directly and immediately upon the highway and which are not common generally to property off said highway in that Community, then such benefits, if any, are just compensation or payment for an equal value of property taken, or damage, if any, to the remaining property. And you are further instructed that such benefits are special and not general benefits, although conferred, if you should so find, upon all the other tracts of land abutting upon the new highway.

“In assessing such special benefits, if any, you may take into consideration the following items:

“1) The increased adaptability, if any, of the land for its use as a shopping center by means of:
“a) The smoother flow of traffic resulting from the construction of a 50-foot highway, consisting of four paved lanes immediately adjacent to the Defendant’s property; and
“b) The construction of a stabilized shoulder 10 feet in width along the entire front of the Defendant’s property; and
“c) The construction of four entrances, 50 feet in width, consisting partially of concrete paving and asphalt paving as described in the evidence immediately adjacent to Defendant’s remaining land; and “d) The widened turning angle of said four entrances, as described in the evidence.

“Therefore, if you believe the Defendant, Ballwin Plaza Corporation, has received any such special benefits, you should not give it any additional or further compensation or return a verdict for it unless you find its damages, if any, exceed such special benefits, if any.”

Appellant contends among other things that by use of the language “any such special benefits” and “such special benefits,” the items in “1),” “a),” “b),” “c),” and “d),” were submitted to the jury as special benefits when they were not special benefits; that it was, therefore, error for the court to authorize the jury to consider such items in reaching a verdict.

The generally accepted definitions of, and distinctions between, general and special benefits are contained in State ex rel. State Highway Commission v. Jones, 321 Mo. 1154, 15 S.W.2d 338, 340 [1, 2], and they are as follows:

“ ‘General benefits,’ those accruing to the owners of property in a neighborhood or vicinity generally, are not deductible from the damages; to make such a deduction would be to require the landowner whose property is taken in part to liquidate his damages by contributing his share of the benefits which inure to the public as a whole. ‘Special benefits’ stand on a different footing; they are such as accrue directly and proximately to the particular land remaining by reason of the construction of the public work on the part taken. Such benefits must, of course, be reflected in an increase in the market value of the land.
“While there is often a contrariety of opinion as to whether the benefits in specific instances are general or special, the general distinction is well understood. ‘A general benefit is an advantage not peculiar to the remainder of a tract part of which is taken, but conferred by the public work upon all property within range of its utility.’ Randolph, Em.Dom. § 269, p. 250. It is also well settled that a benefit, though conferred upon several tracts of land similarly situated, may nevertheless be a special and not a general benefit.
“ ‘A special benefit is an advantage conferred upon a tract by reason of the maintenance of public work on it, — an advantage differing in kind, or at least in great degree from a general benefit.. But it is to be noted, that an advantage is none the less a special benefit because it is conferred upon all the tracts of land upon which the public work is constructed. Indeed, a benefit may be special, although it is conferred also upon land not taken. Thus, where a street is widened by the condemnation of a strip of land along one side, the owner cannot complain because his remaining land is charged with a benefit which the widening necessarily confers upon lots on the opposite side.’ Randolph, Em.Dom. § 270, p. 251.”

The principles announced by the Jones case were amplified in State ex rel. State ■ Highway Commission v. Young, 324 Mo. 277, 23 S.W.2d 130, 134 [9], where the court said: “Granting there may be exceptions in unusual circumstances, it is not true ordinarily, at least, that if a tract receive benefits substantially greater in degree than those of the same nature accruing to other land in the community, the excess benefits thereby become special — in which event alone they may be offset against damages in a condemnation proceeding. As expressed in appreciation of market value, general benefits, themselves, may differ in amount or degree varying with the tract, its remoteness from the improvement, intrinsic character, etc. All the land in the community may not — almost certainly will not — receive the same general benefits in a monetary sense; and the general benefits derived by the particular tract in litigation might be greater than those enjoyed by any other land, and would be reflected in its increased value. But only that part of the increase resulting from special benefits — those, if any, arising from the land’s position directly on the highway improvement, such as availability for new or better uses, facilities for ingress and egress, improved drainage, sanitation, flood protection, and the like— would be chargeable.

“The ultimate question in a case like this does not involve a determination of the amount of benefits in dollars and cents enjoyed by the land involved as compared with other lands in the community. * * * The true inquiry is how much of the augmented market value of the particular tract is attributable to special benefits. Sometimes it may be helpful, in the solution of this question, to find out how the improvement affects other land in the community not on the highway; but if and when this is so, the facts are of value only as evidence on the main issue. While the distinction is sometimes hard to draw, the rule in this state in the ordinary case is that special benefits are to be differentiated from general benefits by their nature or kind rather than by the amount or degree.”

Even though these principles be generally accepted, difficulties arise in the application of these rules to the individual case. In 145 A.L.R. 48-49, the annotation states that “the distinction between special and general benefits is difficult and confusing in its application, because the line of demarcation between the two kinds of benefits is shadowy, and they so shade into each other that in practice it is often impossible to distinguish between them.”

The language of these citations points up the need for simple and accurate language if the issue of special benefits is to be submitted.

Here it appears that the highest and best use of defendant’s property was for a community shopping center both before and after the taking, and that access between the property and the highway was unlimited in both instances. The construction which permitted entrance from the highway to the property was located in the right of way before the taking and was to be located in the right of way after the taking. Under the evidence of this case it is difficult to see how the remaining property has acquired any enhancement of value not general to the area due to making it available for new or better uses or improving its access. In other words, the property taken was, at the time of taking, being utilized at its highest and best use as part of a community shopping center with unlimited access to and from the highway. The same was true after the taking except that the taking itself occasioned a loss of 26,572 square feet of parking area which would accommodate 82 cars. The unlimited access enjoyed by the property was subject to reasonable traffic control before the taking and virtually the same restrictions are to be restored by the ■construction to be accomplished following the taking.

The Court went even further to permit the jury to consider in “a)” of Instruction 5 “the smoother flow of traffic” resulting from the construction of a 50-foot highway, consisting of four paved lanes immediately adjacent to defendant’s property. We are unable to say that this phrase has any precise meaning. Does it mean a smoother flow of traffic on Manchester, a smoother flow in and out of Ballwin Plaza, or does it also connote more or better traffic?

This court has held that “traffic, great or small, is merely an incident of streets and highways and cannot be considered either as an element of damages or of benefits.” State ex rel. State Highway Commission v. Turk, Mo., 366 S.W.2d 420, 422 [3], See also State ex rel. State Highway Commission v. Pope, 228 Mo.App. 888, 74 S.W.2d 265, 269 [11].

A further concern with this language is whether it may be suggesting that the widening to four lanes of highway is limited to the front of defendant’s property. These possibilities are indicative of a confusing and misleading instruction in an area in which clarity is necessary and may well have occasioned erroneous consideration by the jury of general benefits. State ex rel. State Highway Commission v. McCann, Mo.App., 248 S.W.2d 17, 24 [11, 12]. In addition, one of the disputed points was whether “smoother flow of traffic” was an advantage or a disadvantage. In such situation it is clearly error for the court to declare same as a matter for consideration as a special benefit.

By subsection “b)” the jury is authorized to consider the 10-foot stabilized shoulder along the front of defendant’s property as a special benefit. The evidence does not indicate that this same shoulder will affect defendant’s property in any way different from all other lands in front of which it may pass. Here, too, is it the intention of the trial court to suggest that the shoulder is constructed only in front of defendant’s property? The shoulder appears to be intended as a part of the increased facility for the travel and transportation of the general public and, as such, is not chargeable to defendant as an item of special benefit. Mississippi County v. Byrd, 319 Mo. 697, 4 S.W.2d 810, 812, 813 [6-9].

The jury was permitted by subsection “c)” to consider the construction of four entrances and in “d)” the widened turning angle at the entrances. These items, as well as item “b),” seem to gear plaintiff’s case of special benefits to access. It is clear from the evidence that no new access was created. The quantum of access could not be increased since it was unlimited both before and after the taking. In Filger v. State Highway Commission, Mo.App., 355 S.W. 2d 425, 430 [1], it was held that a diminution of access by traffic islands constructed -on the right of way does not give rise to damages. We think the entrances constructed on the right of way in this case are similar to the control islands in Filger. They might be said to diminish access in the sense that access is permitted only through such entrances rather than over the entire frontage, which is the true legal status of defendant’s unlimited access. We recognize, however, the propriety of reasonable controls over the exercise of the right of access, which controls are subject to change from time to time as conditions may demand. Conversely, we believe that the fact that such entrances may, after the construction intended, be wider and provide a wider turning radius, cannot be charged to defendant as a special benefit for they may in turn be reduced as in Fil-ger. They are not in fact an increase of already existing unlimited access. To submit such items to the jury for consideration as special benefits was error.

There was evidence from the expert witnesses that these items were considered by them as special benefits but such testimony does not prove the benefit. State ex rel. State Highway Commission v. Vorhof-Duenke Co., Mo., 366 S.W.2d 329, 340 [13]. In that case the court went on to say, l.c. 340 [15], “It is for the trial court in the first instance to say whether particular testimony tends to prove the existence of a special benefit. It is for the jury to say under all of the relevant testimony whether the abutting land was in fact specially benefited in the respect contended and, if so, to determine the amount thereof. The courts and counsel have the responsibility of furnishing the jury effective guidance on the law of the case.” Here the instruction complained of contains items submitted for the jury’s consideration,, all of which were prejudicial to the defendant in the respects noted. The plaintiff contends that by the asking and receiving of other instructions by the defendant on the issue of special benefits that the errors committed by the giving of Instruction 5 are cured. We have examined the whole charge to the jury and are unable to agree. The items contained in Instruction 5 are not special benefits as a matter of law under the evidence in this case and no amount of additional or clarifying instruction can remove the prejudice created by their submission for the jury’s consideration.

For the giving of Instruction 5 containing the errors noted, the cause must be reversed for a new trial.

Since the case must be retried, we feel it unnecessary to discuss the other grounds for new trial mentioned in appellant’s brief.

The judgment is reversed and the cause is remanded.

HOUSER, C, concurs.

WELBORN, C., dissents.

PER CURIAM.

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

HENLEY, J., concurs.

HYDE, P. J., concurs in result in separate opinion filed.

HOLMAN and DALTON, JJ., concur in result and concur in separate opinion of HYDE, P. J.

HYDE, Presiding Judge.

I concur in the ruling that giving Instruction No. 5 was prejudicially erroneous because it is my view that smoother flow of traffic on the highway is not an element of special benefits to adjoining land. We said in State ex rel. State Highway Commission v. Vorhof-Duenke Co., Mo.Sup. Banc, 366 S.W.2d 329, 339 (citing Mississippi County v. Byrd, 319 Mo. 697, 4 S.W. 2d 810, 813) : “This court has held that increased facilities for the travel and transportation of the general public are not such benefits as may be deducted from the compensation and damages.” Likewise in State ex rel. State Highway Commission v. Turk, Mo.Sup., 366 S.W.2d 420, 422, we stated: “Upon the more general subject, we have said that ‘traffic, great or small, is merely an incident of streets and highways and cannot be considered either as an element of damages or of benefits.’ ” See also Wilson v. Kansas City, Mo.Sup., 162 S.W.2d 802, 805, and cases cited; State ex rel. State Highway Commission v. Pope, 228 Mo.App. 888, 74 S.W.2d 265, 269; Filger v. State Highway Commission, Mo. App., 355 S.W.2d 425, 428; Public Water Supply District No. 2 of Jackson County v. Alex Bascom Co., Mo.Sup., 370 S.W.2d 281, 287. Therefore, it is improper and incorrect to include the movement of traffic on a highway (greater or less, faster or slower, smoother or more congested) as an element of either special benefits or damages.

Furthermore, this instruction did not require a finding that any of the submitted items of special benefits would result in any increase in the market value of defendant’s land. We said in State ex rel. State Highway Commission v. Jones, 321 Mo. 1154, 15 S.W.2d 338, 340, that special benefits “must, of course, be reflected in an increase in the market value of the land.” It is my view that an instruction on special benefits should make this clear to the jury. Moreover, this instruction did not require the jury to find that any of these items were actually beneficial but instead seemed to assume that all of them would be beneficial and constitute special benefits. Therefore, I concur in the result.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Harold HAGERMAN, Appellant.
    No. 49776.
    Supreme Court of Missouri. Division No. 2.
    Oct. 12, 1964.

      Thomas F. Eagleton, Atty. Gen., Louis C. DeFeo, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    John O. Hichew, St. Louis, for appellant.
   BARRETT, Commissioner.

Several years ago Harold Lee Hager-man was found guilty of an assault with malice with intent to rob (V.A.M.S. § 559.-180), in addition two prior felony convictions were alleged and found (Sections 556.280-556.290 RSMo 1959, V.A.M.S.) and a jury fixed his punishment “at imprisonment in the penitentiary for the rest of his natural life.” In September -1962, proceeding under Supreme Court Rule 27.26, Hagerman filed a motion to vacate the life sentence imposed in 1950. The court in which he had been convicted found that his motion to vacate the judgment “fails to state a claim entitling movant to the relief sought therein” and, therefore, summarily denied the motion. Hagerman has appealed from the denial of his motion, and experienced and respected court appointed counsel has filed a brief on his behalf.

The motion to vacate is not directed to the substantive offense with which Hager-man was charged, an armed assault with intent to rob, but is directed to the allegation and finding of prior felony convictions under the so-called habitual criminal act as it then existed and was applied. In addition to the principal offense of an assault with malice the information charged three prior felony convictions, two in Arkansas and one in the United States District Court of Minnesota. The first point made by the motion is that the information was defective and therefore the sentence was in violation of the constitution and laws of Missouri. In essence the complaints are that the information did not allege the dates of his incarceration, particularly the time served in that the date of discharge is omitted. It is urged that the language “duly imprisoned” and similar language, together with the dates of the convictions, is insufficient and therefore it is said that the information was “fatally defective.” It is contended that these alleged deficiencies bring this appeal within State v. Franck, Mo., 260 S.W.2d 52; State v. St. Clair, Mo., 261 S.W.2d 75 and particularly the recent case of State v. Bryant, Mo., 375 S.W.2d 107.

It is not necessary here to analyze and distinguish those cases in detail, in this case as to the two Arkansas convictions (and they alone were sufficient), unlike the informations involved in those cases, it was alleged “that said two convictions and sentences thereon (3 years imprisonment in each case), as aforesaid, were in separate cases and were imposed to run concurrently and the imprisonment of Harold Hagerman * * * on both of said sentences were served concurrently; and that the said Harold. Hagerman * * * was duly discharged from said Penitentiary of the State of Arkansas after and upon lawful compliance of said sentence.’’ (Emphasis supplied). Thus unlike the informations relied on by the appellant, this information, in the language of the statute alleged a discharge “upon compliance with the sentence” (Section 556.280 RSMo 1959 V.A. M.S.) and therefore is not fatally defective. State v. Smith, Mo., 324 S.W.2d 707 (a life sentence for robbery with prior felony convictions); State v. Harrison, 359 Mo. 793, 223 S.W.2d 476; State v. Whipkey, 358 Mo. 563, 215 S.W.2d 492.

The second complaint is that the sentence imposed on the appellant under the habitual criminal act was in excess of the court’s jurisdiction and void “because the state did not establish that defendant had been previously convicted of a felony.” In connection with this point the court is urged to take judicial notice (State v. King, Mo., 380 S.W.2d 370) of the records in the principal case, State v. Hagerman, Mo., 244 S.W.2d 49. By taking judicial notice it is urged that as in State v. Hill, Mo., 371 S.W.2d 278, there was no proof of his prior conviction. In addition to its analogy it is said that the records here are comparable to those in State v. Young, Mo., 366 S.W.2d 386, and establish the invalidity of the Arkansas convictions. In large part this particular point is directed to the admissibility and sufficiency of the evidence as to his identity as the person described in the Arkansas records, matters not open to argument upon a motion to vacate sentence under rule 27.26. State v. Mallory, Mo., 349 S.W.2d 916. As further demonstrating that these are not open questions in this proceeding, these and related contentions were made upon his appeal in 1951. And what was there said is sufficient to dispose of his claim of lack of identity: “The authenticated records contain an accurate description of the person as to age, weight, height, color of hair and eyes, nativity and occupation. The record recites that his father is dead and that his mother is ‘Florence Hagerman of Janesville, Minnesota.’ His mother, Florence Hagerman of Janesville, Minnesota, appeared as a witness on his behalf and testified in this case. The identity of names and the attendant circumstances were sufficient under this record to identify the appellant as the convicted felon described in the Arkansas records within the requirements of the Habitual Criminal Act.” State v. Hagerman, 244 S.W.2d 1. c. 54. And if judicial notice admits of the court’s examining its other records, Hagerman’s 1950 appeal of a burglary and larceny conviction should forever put to rest the authenticity and validity of the Arkansas convictions: “Furthermore, defendant took the stand and, on both direct and cross-examination, voluntarily testified as to these three (there he included the Minnesota conviction) specific convictions and as to serving the sentences in the two penitentiaries. Defendant admitted the facts contained in the certified copies and thus waived any objections to their admission in evidence.” State v. Hagerman, 361 Mo. 994, 998, 238 S.W.2d 327, 330.

For the indicated reasons the motion to vacate sentence and judgment is without merit and fails to state a claim entitling appellant to relief and the judgment is therefore affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Phillip K. HARRIS, Appellant.
    No. 50637.
    Supreme Court of Missouri, Division No. 2.
    Oct. 12, 1964.
    Thomas F. Eagleton, Atty. Gen., Louis C. DeFeo, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    Phillip K. Harris, pro se.
   BARRETT, Commissioner.

On January 18, 1956, when Louise Okee, now described by the appellant Phillip K. Harris as “his lady friend,” attempted to terminate their illicit relationship (he was then married and the father of seven children), he beat her to death with “a steel car jack.” The circumstances in which the appellant Harris beat Louise to death, an irrefutable fact that he did not deny either then or now, were such that he was first charged with murder in the first degree. Subsequently an amended information was filed charging the appellant with murder in the second degree, whereupon, after advising with court-appointed counsel (two very competent lawyers), he entered a plea of guilty and was sentenced to fifty years’ imprisonment. Seven years later, December 13, 1963, the appellant instituted this rather unique two-pronged proceeding to vacate the 1956 sentence and to permit him to withdraw his original plea of guilty. Essentially the proceeding is one to vacate the sentence under rule 27.26, V.A.M.R. on the ground or for the reason that there was “manifest injustice” in the acceptance of his plea of guilty (Sup.Ct. Rule 27.25) in 1956 and therefore, he urges, the judgment of conviction on his plea of guilty should now be set aside. The trial court summarily denied the motion and Harris has appealed.

The appellant’s complaints are that he was “deprived of substantive procedural due process of law” in that by reason of his comparative illiteracy (a third grade education) there was no “thorough determination of appellant’s capabilities to adequately and clearly understand the law of the case.” This general abstraction means, so he says, that “he was not advised of the various defenses available to him.” But in this connection he is not speaking of the defenses to the charge of second degree murder, he first objects that the charge of first degree murder was reduced to second degree by striking from the information the word “deliberately.” He intimates that, unknown to him, the change in the information resulted from “some kind of agreement between defense counsel and the prosecution.” Therefore, it is said, that he had a right to know but was not advised that he was not pleading guilty to murder in the first degree. In this connection he urges that he should have been advised of the reduction in the degree of the offense, “because there are far more defenses in first degree murder than in a second degree one.” As to these rights he says that “no one advised him that he forfeited more rights by pleading guilty than he gained by [not] so pleading : his act could possibly have been due to temporary insanity; to provocation, to fear of immediate danger; no one advised appellant he could have relied on the doctrine of self-defense; that there could have been a jury finding of manslaughter, a verdict for which a jury could have found.” And finally it is stated that “the court did not advise appellant what charge he was being sentenced for. In effect, he was not lawfully advised of the nature of the charge he was being sentenced for.” It is urged that these circumstances and this case fall within and are governed by State v. Williams, Mo., 361 S.W.2d 772 and Williams v. Kaiser (1944), 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398, and that as in the Williams case the present judgment dismissing appellant’s motion should be reversed.

But the insuperable difficulty with the appellant’s position, both here and in the trial court, is that his motion, the record and the case are not comparable to those cases. Unfortunately for the appellant and the allegations of his motion a record was carefully made and preserved when he entered his plea of guilty in 1956 and that record is of course a part of this proceeding. State v. King, Mo., 380 S.W.2d 370. And the court in which he was convicted in the first instance, and in which he necessarily filed this motion, is not bound to accept as true allegations which the files and records of his original case show to be erroneous or untrue. State v. Ninemires, Mo., 306 S.W. 2d 527, 531.

In any event, the official transcript, properly authenticated and filed here, contains these recitals and establishes these facts: The original information charging the appellant with murder in the first degree was filed on January 19, 1956. And the record recites that “thereafter,” on January 31, 1956, “Information is read to defendant charging the defendant with murder in the first degree.” The record entry then recites that attorneys Ray L. Shubert and George F. Sweitzer were appointed to represent appellant and he was “advised that he would have a reasonable time in which to confer with his attorneys.” Thirty days later, on February 18, 1956, the record recites that the prosecuting attorney files an amended information “reducing charge to murder in the second degree." Next, the record entry recites that “Defendant’s counsel consent to reduction of charge and amended information is read to defendant. Defendant enters a plea of guilty as charged of murder in the second degree.”

If these hare record entries are not sufficient of themselves to dispose of the appellant’s motion it further appears from the official transcript that “At the time of the entry of plea of guilty and said sentence the following occurred in open Court.” First, the court directly addressed the defendant and established his name. Next the court addressed the prosecuting attorney and specifically inquired whether he was filing an amended information reducing the charge from first to second degree murder. Then the court addressed counsel and asked whether they consented to the reduction of the charge. Upon receiving an affirmative answer the court said, “Mr. Harris, at this time I am going to read you this amended information that has just been filed.” And the court proceeded to read the information to the defendant, then the court asked the defendant how far he got in school (third grade) and whether he could read and write (He answered, “No.”). Then the court asked the appellant whether he understood the charge and receiving the answer “I think so,” the Court said, “I’ll explain it as clearly as possible.” Then the court told him that he was charged with killing Louise Okee with a steel car jack. The defendant said that he understood that. And then the court asked Harris whether he had conferred with counsel and whether they had explained “the range of punishment this charge will carry.” And even though receiving an affirmative answer the court explained the range of punishment and then the appellant said, “I understand this. I don’t quite understand it, but I can go along with this. I don’t know much about the law.” The court replied, “I don’t expe-ct you to. You know this type of crime is a minimum of ten years to a term of years which could be 99 years. Do you understand that?” Appellant replied, “Yes.” Then the court stated and inquired whether after saying he understood the charge and after conferring with counsel “Do you enter a plea of guilty or not guilty as charged?” Defendant responded, “Guilty.” The judge, “Are you entering a plea of guilty?” Defendant, “Yes.” The court, “Have you been induced by any threats or promises to enter this plea of guilty?” Defendant, “I have not.” The Court, “You have not. Are you entering this plea of guilty solely because you understand the nature of this charge and you understand the facts and you are guilty of this charge ?” Defendant, “The sole reason.”

The prosecuting attorney recommended a punishment of SO years’ imprisonment. The court called on appellant’s counsel, Mr. Shu-bert, and he stated that he and his co-counsel had also advised the appellant of the nature of the charge and the range of punishment. And, counsel said, “We have advised him, of course, of his rights to have a trial by jury if he so chose or to plead guilty if he chose. We left the matter up to the defendant himself and explained all his rights under the Constitution of Missouri and the Constitution of the United States. He told us yesterday afternoon he wanted to enter a plea of guilty after explaining to him the charge that has nozv been amended by the Prosecuting Attorney to the 2nd degree charge. We also explained that whatever the Prosecuting Attorney recommended, this Court, of course, was not bound by it.” Mr. Shubert’s co-counsel then made a brief statement of the circumstances of the murder, gave a brief account of appellant’s life and concluded with a plea “that the Court temper justice with mercy considering his plight and background.”

This is not to say that questions of fact may not be made or may not arise upon motions to withdraw pleas of guilty or motions to vacate sentences. But it is obvious from the motion here and the solemn record made in 1956 that there is no disputed fact. In this case, unlike in Williams v. Kaiser, the court did not accept Harris’ plea of guilty without “questioning, cautioning, or saying anything to the defendant or in any way asking if he assented to the plea.” Also the case is unlike State v. Williams in that here there is no circumstance from which it is a permissible inference that Harris was misled or “that this could be the result of what was done under the circumstances of this case.” 361 S.W.2d 1. c. 775. As to the withdrawal of the plea of guilty the appellant does not in fact claim that he was not guilty of murder in the second degree (he claims that he may have had defenses to a charge of murder in the first degree that were not available to him under a charge of second degree murder), there is not in fact a claim that he was misled by the trial judge. At best his claim is that he did not know or fully appreciate, not necessarily the consequences of a plea of guilty, but rather that he did not realize that he could be sentenced to fifty years’ imprisonment and that alone is not a good and sufficient reason or basis for finding that after the lapse of seven years the trial court erred in refusing to permit the withdrawal of a plea of guilty. State v. Kellar, 332 Mo. 62, 55 S.W.2d 969. Insofar as the motion is concerned with the vacation of the sentence, there is no basis for a claim that there was a promise or an understanding that a particular recommendation would be made and followed. And the statements or innuendoes of lack of “effective legal services” are not supported by the record and as a matter of fact concern “strategy” in the handling of a very serious criminal case rather than the justice and propriety of the proceedings upon a plea of guilty. State v. Freedman, Mo., 282 S.W.2d 576. Thus, in short, in ibe trial court and in this court, upon the record in the original proceedings and upon the face of the motion the appellant is entitled to no relief (State v. Ninemires, supra; State v. Freedman, supra; State v. McDonald, Mo., 343 S.W.2d 68) and the judgment is therefore affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: DALTON, Judge.

text:
    STATE ex rel. CIBA PHARMACEUTICAL PRODUCTS, INC., a Corporation, Respondent, v. The STATE TAX COMMISSION of the State of Missouri, Appellant.
    No. 50015.
    Supreme Court of Missouri, En Banc.
    Sept. 14, 1964.
    Rehearing Denied Oct. 12, 1964.

      Thomas F. Eagleton, Atty. Gen., Eugene G. Bushmann, Asst. Atty. Gen., Jefferson City, for appellant.
    Hendren & Andrae, by John E. Burruss, Jr., and Kenneth W. Shrum, Jefferson City, for respondent.
    Walter E. Alessandroni, Atty. Gen. of Pennsylvania, Edward Friedman, George W. Keitel, Deputy Attys. Gen., Louis F. Del Duca, Asst. Atty. Gen., Richard H. Wagner, Harrisburg, Pa., Robert Y. Thornton, Atty. Gen. of Oregon, Theodore W. de Looze, Carlisle B. Roberts, Asst. Attys. Gen., Salem, Or., Frank J. Kelley, Atty. Gen., of Michigan, Robert A. Derengoski, Sol. Gen., T. Carl Holbrook and William D. Dexter, Asst. Attys. Gen., Lansing, Mich., amici curiae.
   DALTON, Judge.

This cause originally assigned to Division Two of this Court was docketed for hearing at the September Session 1963, but after briefs were filed the cause was transferred without opinion to Court en Banc, where it was subsequently argued and submitted. It is an appeal by the State Tax Commission from a judgment entered by the Circuit Court of Cole County reversing an order of the Tax Commission, which order affirmed certain State income tax assessments by the Department of Revenue against Ciba Pharmaceutical Products, Inc.

, Ciba Pharmaceutical Products, Inc., a corporation, hereinafter referred to as respondent, was organized under the laws of the State of New Jersey, with its main office at Summit, New Jersey. Respondent is a pharmaceutical house which manufactures drugs and distributes them throughout the United States (into all of the fifty states). On February 2, 1961, and while respondent was authorized to transact business in the State, the Department of Revenue for the State of Missouri made certain assessments of Missouri income taxes against respondent for the tax years of 1956, 1957, 1958 and 1959, together with interest and penalties, as hereinafter set out in the Commission’s Findings of Facts.

In respondent’s petition for review of the several income tax assessments and decisions of the State Revenue Department with reference thereto, it was admitted that notices of the mentioned income tax assessments were duly sent to respondent on February 2, 1961; that respondent had filed petitions for the abatement of the mentioned assessments; and that the said petitions had been overruled. The said petition for review did not question the reasonableness or correctness of the amounts fixed by the several assessments of income taxes, interest and penalties for the several years under review, but based its defense solely on a particular Federal statute, to wit: Public Law 86-272, Title I, §§ 101— 104; 73 Stat. 555, 556; 15 U.S.C.A. §§ 381-384, hereinafter referred to as P.L. 86-272, which said statute was alleged to give respondent complete income tax immunity under the facts stated in the petition for review and to prohibit the State of Missouri from imposing an income tax on respondent. Respondent was granted a hearing on its petition for review before the State Tax Commission on February 7, 1962.

At the mentioned hearing both respondent and the Department of Revenue offered oral testimony. There were no conflicts in the evidence and the State Tax Commission found the facts in conformity with this evidence. Appellant’s brief correctly reviews the facts shown by the transcript of the testimony and “respondent accepts and adopts the facts set forth in the Statement of Facts in Appellant’s brief.” Instead of quoting appellant’s approved statement we shall set out the State Tax Commission’s Findings of Fact, which we find to be in conformity with the appellant’s approved statement. It is as follows:

“CIBA Pharmaceutical Products, Inc., hereinafter referred to as CIBA, is a corporation organized and existing under the laws of the State of New Jersey. CIBA was authorized to do business in Missouri on July 23, 1959. A certificate of withdrawal was issued on December 30, 1961. During the period of registration CIBA maintained a registered agent and a registered office in Missouri. On February 2, 1961 the Department of Revenue made an assessment of Missouri income tax against CIBA for the following tax years:

Year Tax Interest Penalty Total
1956 $1658.40 $373.14 $414.60 $2446.14
1957 1658.40 273.64 414.60 2346.64
1958 1554.93 163.27 388.73 2106.93
1959 1576.53 70.94 394.13 2041.60

“CIBA sells pharmaceutical products to Missouri retail druggists and wholesale pharmaceutical companies. It employs ‘professional service representatives’ to solicit orders from Missouri druggists. These orders are filled out by the representative and sent to CIBA’s home office in Summit, New Jersey, for approval or disapproval. If an order is approved then it is completed by the shipment into Missouri of goods which are stored at Chicago, Illinois. While soliciting the retail druggist, CIBA’s representatives frequently leave brochures and sometimes assist the pharmacist in taking inventory. CIBA has about twelve representatives in Missouri, each of who has an assigned territory. The representative who testified in this case stated that he was a life-long Missouri resident. He presently lives in Missouri. He also owns property in Missouri. CIBA supplies him with an automobile and reimburses him for his expenses. The automobile stays in Missouri at all times.

“The representatives operate from their homes in Missouri, CIBA has no sales office or warehouse in Missouri. The representatives in the St. Louis area assemble periodically for sales meetings. These meetings are called by the district manager, also a representative, and are held in St. Louis, usually in motel rooms. These meetings are of an educational nature. Representatives acquire information on particular products to be sold and also are instructed on company policy.

“CIBA’s representatives also visit pharmacists at hospitals located in their assigned area. The procedure followed with hospital pharmacists is comparable with the solicitation made from retail druggists. The representatives also visit or ‘detail’ the doctors in their territory. The representatives explain the therapeutic value of CIBA’s products to the doctors. They tell what the product is, what it will do, what dosage is desirable and what its side effects might be. Literature is left with the doctor along with samples of CIBA’s products. The main object in ‘detailing’ the doctors is to persuade him to write prescriptions for CIBA’s products when prescribing medicines for his patients.”

As stated, respondent defended this case before the State Tax Commission solely on the basis of the testimony claimed to bring respondent within the income tax immunity provisions of what is referred to as Public Law 86-272 (15 U.S.C.A. § 381). The applicable part of the Federal, statute is as follows:

“§ 381. Imposition of net income tax— Minimum standards
“(a) No State, or political subdivision thereof, shall have power to impose, for any taxable year ending after September 14, 1959, a net income tax on the income derived within such State by any person from interstate commerce if the only business activities within such State by or on behalf of such person during such taxable year are cither, .or both, of the following:
“(1) the solicitation of orders by such person, or his representative, in such State for sales of tangible personal property, which orders are sent outside the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside the State; and
“(2) the solicitation of orders by such person, or his representative, in such State in the name of or for the benefit of a prospective customer of. such person, if orders by such customer to such person to enable such customer to fill orders resulting from such solicitation are orders described in paragraph (1). * * *
“(b) The provisions of subsection (a) of this section shall not apply to the imposition of a net income tax by any State, or political subdivision thereof, with respect to—
"(1) any corporation which is incorporated under the laws of such State; or
“(2) any individual who, under the laws of such State, is domiciled in, or a resident of, such State. * * * ”
“§ 382. Assessment of net income taxes; limitations; collection
“(a) No State, or political subdivision thereof, shall have power to assess, after September 14, 1959, any net income tax which was imposed by such State or political subdivision, as the case may be, for any taxable year ending on or before such date, on the income derived within such State by any person from interstate commerce, of the imposition of such tax for a taxable year ending after such date is prohibited by section 381 of this title.
“(b) The provisions of subsection (a) of this section shall not be construed — (1) to invalidate the collection, on or before September 14, 1959, of any net income tax imposed for a taxable year ending on or before such date, or (2) to prohibit the collection, after September 14, 1959, of any net income tax which was assessed on or before such date for a taxable year ending on or before such date.”

Since the “Conclusions of Law” reached by the State Tax Commission conform in material respects to its theory on this appeal and conflict with the circuit court’s decision from which the State Tax Commission took its appeal to this Court, we shall set out appellant’s Conclusions of Law, based upon the admitted facts as found by appellant.

“CIBA seeks to be excluded from the imposition of the Missouri income tax law by the protection granted to foreign corporations whose income in Missouri is earned while engaging in interstate commerce. Public Law 86-272, 75 Stat. 555, 15 U.S. C.A. §§ 381-384. This new Federal statute prohibits any State from imposing a net income tax on income earned by any person from interstate commerce if the only activ-itjr that person has with the taxing State is (1) solicitation of orders by such person or his representative for sales of tangible personal property, which orders are sent out of the taxing state for approval or disapproval, and which orders are filled by shipment from a point out of the state; or, (2) solicitation in the manner set out in (1) above when it is in the name of or for the benefit of a prospective customer.

“This new Federal statute sets out a minimum standard of business activity in which a non-resident may engage and yet be exempt from the payment of Missouri income tax. The result being that any activity which is performed in Missouri and which goes beyond the minimal amount set out in the statute, places the non-resident under the taxing jurisdiction of the state involved. This exemption is to be strictly construed against the person claiming such protection.

“In the case at hand, CIBA has engaged in certain business activity in Missouri which goes beyond the statutory minimum. When CIBA’s representatives ‘detail’ doctors in Missouri they are promoting and encouraging intrastate activities. These intrastate activities are performed when Missouri doctors write prescriptions for their Missouri patients who in turn purchase pharmaceuticals from Missouri druggists.

“CIBA, although a non-resident, has employed resident agents to make their solicitations and ‘detail’ Missouri doctors. Public Law 86-272 specifically provides that it shall not apply with respect to (1) any corporation which is incorporated under the laws of the taxing state; or (2) any individual who under the laws of the taxing state is domiciled in, or a resident of such state. These agents operate CIBA’s automobiles solely within Missouri and receive the full protection of Missouri laws as other residents do. They also own property in Missouri. The employment of a Missouri resident by CIBA and the performance of a resident agent’s duties are also intrastate activities. Sales meetings which are held in Missouri by resident agents of CIBA are intrastate activities, all of which go beyond the minimal business operations established by Public Law 86-272.

“As a voluntary act CIBA subjected itself to the jurisdiction of the State of Missouri when it complied with Chapter 35?, RSMo 1959 by registering with the Secretary of State and obtaining authorization to transact business in Missouri. When this authorization was granted CIBA was placed in the same status as domestic corporations. It had the same rights and duties as Missouri corporations. It had access to Missouri courts and administrative bodies. The assessment for income tax made by the Department of Revenue was imposed during the period CIBA was authorized to do business in Missouri.”

On certiorari to the Circuit Court of Cole County, that Court found, as follows: “ * * * that Relator, CIBA Pharmaceutical Products, Inc., is a New Jersey corporation, and that the company was not doing business in this state during the years concerned, and was not licensed to do business in this state except during the period July 23, 1959, to December 31, 1959. Therefore, the Court finds that Relator did not come within the taxing provisions of Section 143.040, RSMo. (1959), except during the period July 23, 1959, to December 31, 1959, and was not subject to the Missouri Income Tax Law except during said period.

“The Court further finds that the activities of Relator, CIBA Pharmaceutical Products, Inc., came within the minimum standards prescribed by Public Law 86-272, Title I, § 101, 73 Stat. 555, 15 U.S.C.A. § 381, and that the State of Missouri, therefore, is prohibited by said law from imposing its net income tax upon Relator for the years concerned. The Court further finds, therefore, that, even if Relator came within the taxing provisions of Section 143.040, RSMo. (1959), the State of Missouri was prohibited from applying the provisions of said Section to Relator by the provisions of Public Law 86-272, Title I, § 101, 73 Stat. 555, 15 U.S.C.A., § 381, and Public Law 86-272, Title I, § 102, 73 Stat. 556, 15 U.S.C.A. § 382.” The court further found the order affirming the income tax assessments to be “unlawful” and reversed the judgment entered by the State Tax Commission. After motion for a new trial was filed, heard and overruled the State Tax Commission took an appeal to this Court.

Appellant’s first assignment is that: “The trial court erred in reversing appellant’s decision because the cotirt substituted its judgment on the evidence for that of appellant, and failed to find that appellant’s decision was supported by competent and substantial evidence upon the whole record and was not against the overwhelming weight of the evidence.” (Italics ours.)

Appellant argues that “the trial court violated the precepts of administrative law and the dictates of this Court by substituting its judgment on the evidence for that of appellant’s and by failing to apply the proper standard to determine whether appellant’s decision was supported by competent and substantial evidence upon the whole record.” (Italics ours.) Appellant cites Koplar v. State Tax Commission, Mo.Sup., 321 S.W.2d 686, 694; Cupples Hesse Corp. v. State Tax Commission, Mo.Sup., 329 S.W.2d 696, 702; Thacker v. Massman Const. Co., Mo.Sup., 247 S.W.2d 623, 627; and other cases. Appellant also says: “The issue is simply whether there is substantial and competent evidence to show that respondent’s business activities in Missouri are neither less than, nor equal to, the minimum standard set forth in the federal statute”; and that "To reach the legal conclusion that respondent fell within the coverage of Public Law 86-272, the trial court had to weigh the evidence for itself — substitute its judgment on the evidence for that exercised by appellant.” (Italics ours.)

In this connection appellant insists that it has “always contended that its decision in this matter was subject to judicial review,” but that “the facts in this case are controverted and in dispute”; and that “appellant found certain facts to be true and declared the inescapable legal conclusion resulting from such finding,” while the trial court substituted its own judgment on the evidence for that of the appellant and found facts contrary to appellant’s findings, and thus erred. Appellant argues that “respondent fails to explain to which set of facts the law is to apply — those found by appellant or those found by the trial court.” However, appellant has failed to point to any conflicts in the evidence but, instead, refers to the trial court’s conclusions of law on the admitted facts as found by the State Tax Commission.

We are not here concerned with the evidence in the case, as such. There were no conflicts in the evidence and respondent accepted and adopted the facts set forth in the Statement of Facts in appellant’s brief, but the important matter is not that respondent and appellant agreed upon appellant’s statement of the facts shown by the evidence in the case. The really important fact is that the State Tax Commission found the facts to be exactly in accordance with the oral testimony offered by respondent and appellant and the issues now presented are only issues of law.

On appeal from a judgment on an agreed statement of facts, or where the facts are not in dispute, the only question is whether the judgment is the proper legal conclusion. Jewel Tea Co. v. City of Carthage, 257 Mo. 383, 165 S.W. 743; Murphy v. Doniphan Telephone Co., 347 Mo. 372, 147 S.W.2d 616, 619; Corp v. Joplin Cement Co., Mo.Sup., 337 S.W.2d 252, 258 [6] [7, 8] ; Haynes v. Unemployment Compensation Commission, 353 Mo. 540, 183 S. W.2d 77, 80 [3]; Wagner v. Unemployment Compensation Commission, 355 Mo. 805, 198 S.W.2d 342, 344 [2]; Drey v. State Tax Commission, Mo.Sup., 323 S.W.2d 719, 722 [2]; Browning v. City of Poplar Bluff, Mo. App., 370 S.W.2d 179, 180; and see Article V, § 22, Const, of Missouri 1945, V.A.M.S.; 73 C.J.S. Public Administrative Bodies and Procedure § 228, p. 599. The assignment is overruled.

Appellant further contends that “the trial court erred in finding appellant’s decision to be ‘unlawful’ because there is substantial evidence to show that respondent’s business activities in Missouri do not come within the minimum standard prescribed by Public Law 86-272 and the State of Missouri is not prohibited from imposing its net income tax upon respondent, and the finding by the trial court to the contrary was unwarranted', and against the weight of the evidence.” It is appellant’s primary contention that “the trial court erred by substituting its judgment on the evidence for that of appellant’s and that this error was not cured simply because the court found appellant’s decision to be ‘unlawful’.”

As stated, we are not here concerned with “evidence,” since the facts are agreed to be as found by the appellant, hence only a question of law is presented; however, appellant argues its position as follows: “ * * * respondent has 12 ‘detailmen’ who travel throughout Missouri not only with promotional and advertising materials which they give to respondent’s customers — the retail druggists — to induce interstate sales, but also with brochures, pamphlets, daily reminder calendars and drug samples which they give to doctors. * * * these ‘de-tailmen’ specifically ask doctors to prescribe respondent’s drugs for their patients so that the patient will then have to purchase these drugs at retail. Respondent is clearly engaged in the domestic business of ‘inducing’ the intrastate activity of prescription writing and the intrastate activity of local drug purchases. The distribution of drug samples alone destroys respondent’s argument that they are engaged solely in interstate commerce. * * * Surely respondent wants the doctors to give these samples to their patients to see whether the drugs have the pharmaceutical value respondent claims them to have. * * * Its ‘detail-men’ are Missouri residents. * * * It was admitted by respondent that its 12 ‘de-tailmen’ are given an assigned territory in Missouri and they regularly, systematically and continuously solicit druggists and ‘detail’ doctors within that territory.”

Appellant concludes its argument as follows : “ * * * the trial court erred by finding that respondent’s business activities in Missouri came within the minimum standard of Public Law 86-272. Such a finding is clearly against the weight of the evidence. Respondent performs intrastate business in Missouri by regularly, systematically and continuously ‘inducing’ local prescription writing and retail sales. Other factors, such as the distribution of drug samples, the authorization to do business in Missouri and the employment of Missouri residents to operate out of their homes, drive respondent’s cars and periodically hold sales meetings, also lead to the conclusion that respondent is engaged in local business. Notwithstanding this intrastate business, respondent has a sufficient connection or nexus with the State of Missouri so as to be required to pay a nondiscriminatory income tax reasonably apportioned to respondent’s local activities in Missouri. The income tax assessments herein fall within this description. Respondent should not be allowed to exploit the Missouri consumer market and earn a profit without paying its fair share of the cost which Missouri bears in maintaining this market.”

Appellant admits that “No court cases or legal authorities have been found by this writer which can be of any substantial aid in deciding what Public Law 86-272 actually means and whether respondent’s activities in Missouri come within the statutory minimum standard or not. About the most that can be said in describing this statute is that it was hastily enacted, not very clear, and is considerably restricted in its scope, see note, 75 Harv.L.R. 953, 1007-1010. It was not enacted as a permanent piece of legislation but only as a temporary solution while further studies by Congress could be made, U.S.Code, Cong. & Ad. News, 86th Congress, Volume II, p. 2551.”

In support of appellant’s contention that respondent was engaged in intrastate commerce in Missouri, appellant cites Eli Lilly & Co., v. Sav-On-Drugs, Inc., 366 U.S. 276, 279-284, 81 S.Ct. 1316, 1319, 6 L.Ed.2d 288, where the evidence showed many facts quite similar to the facts here, but the Court found from other undisputed evidence that: “Plaintiff maintains an office at 60 Park Place, Newark, New Jersey. Its name is on the door and on the tenant registry in the lobby of the building. (The September 1959 issue of the Newark Telephone Directory lists the plaintiff, both in the regular section and in the classified section under ‘Pharmaceutical Products,’ as having an office at 60 Park Place, Newark.) The lessor of the space is plaintiff’s employee, Leonard L. Audino, who is district manager in charge of its marketing division for the district known as Newark. Plaintiff is not a party to the lease, but it reimburses Audino ‘for all expenses incidental to the maintenance and operation of said office.’ There is a secretary in the office, who is paid directly by the plaintiff on a salary basis.” The Court held that the “record clearly shows that Lilly was, as a matter of fact, engaged in local intrastate business in New Jersey through the employees it kept there to induce retailers, physicians and hospitals to buy Lilly’s products from New Jersey wholesalers in intrastate commerce.” (Italics ours.) The case is not controlling under the facts before us.

The essence of this assignment, as we view it, is that whether or not Public Law 86-272 is constitutional or unconstitutional “respondent’s business activities in Missouri do not come within the minimum standard prescribed” by the Federal act. No question of the weight of the evidence is involved. Only a question of law is presented. We find nothing in the facts found by the State Tax Commission to indicate any business or financial transactions took place when the representatives “detailed” the doctors, or when they distributed free samples, or when they gave out literature, or when the representatives met together, these were not business transactions where finances were involved or taxable income produced or any intrastate commerce involved. ! The only financial transactions were between respondent and the druggists or the hospitals that order drugs, and that is in interstate commerce.

Our conclusion is that the admitted facts before us fail to show that respondent was engaged in intrastate commerce or that respondent’s activities in Missouri equaled or exceeded the minimum standard set by Public Law 86-272.

Appellant further contends that “the trial court erred in finding that respondent was not doing business in Missouri during the years concerned, was not licensed to do business in Missouri except during the period July 23, 1959 to December 31, 1959, and was therefore not subject to the Missouri income tax law except during the period of registration because respondent failed to exhaust its administrative remedies on this issue when it raised it for the first time on appeal and did not submit the question to appellant for its determination, and further because such a finding has no basis upon the evidence in this case." (Italics ours.)

We find no merit in this assignment. Respondent did not fail to exhaust its administrative remedies or fail to submit the issue of not engaging in intrastate commerce in Missouri to the State Tax Commission. Although it is true that at the close of the hearing before the State Tax Commission respondent’s position was stated as being based “entirely on the Federal statute,” nevertheless that defense included the question of whether respondent was doing an intrastate business in Missouri during the years concerned. Further, in respondent’s appeal from the adverse rulings of the Missouri Director of Revenue with reference to the approval of these assessments of Missouri income tax, the respondent assigned as a ground for reversal the alleged fact that “the activities of CIBA Pharmaceutical Products, Inc., in the State of Missouri are exclusively interstate commerce and are confined entirely to solicitation.” It, therefore, appears that the defense or claim of tax immunity under P.L. S6-272 included the matter of “not doing business in Missouri.” This defense was fully covered by respondent’s contention that its business activities were interstate and within the minimum standards of Public Law 86-272. The evidence offered by respondent before the State Tax Commission at the administrative hearing on February 7, 1962 was certainly offered in support of the specific allegations stated in respondent’s written appeal from the rulings of the Missouri Director of Revenue to the State Tax Commission and, as stated, were clearly included within the defense based upon the Federal statute. We further find no merit in appellant’s contention that the trial court’s finding upon review had absolutely no foundation or support by evidence in the case. The trial court’s ruling was a conclusion of law based upon the facts as found by the State Tax Commission from the testimony heard on February 7, 1962. The trial court’s judgment was, therefore, not outside the issues before it and the issues decided were fully supported by the facts found by the State Tax Commission from the evidence presented before it.

Appellant also argues that the income tax assessments involved in this appeal were made on February 2, 1961 and, since at that time the respondent was authorized to do business in Missouri, the judgment properly and correctly declared that respondent was subject to the Missouri income tax law regardless of whether it did any business in this state under said authority or had done business in the state at-any time prior to being authorized to do business in this state. We do not agree, but rather hold that § 143.040 RSMo 1959 did not authorize the imposition of an income tax levy upon a foreign corporation subsequently authorized to do business in this state, if, as appears from the facts found, it had not been doing business in this state prior to the granting of such authority. Appellant’s further contention that “respondent offered no evidence whatsoever at the administrative hearing to show [that] it was not doing business in Missouri” is not supported by the facts found by the State Tax Commission itself from respondent’s evidence.

We must and do hold that respondent has not waived or abandoned any of its administrative remedies; that it is not barred from presenting its contention that it was not doing an intrastate business in Missouri during the mentioned years; and that this issue was in fact ruled against respondent by the State Tax Commission in its “Conclusions of Law.”

Appellant also contends that regardless of whether respondent was engaged in intrastate commerce respondent had a sufficient connection or nexus with the State of Missouri to sustain a nondiscriminatory income tax reasonably apportioned to respondent's local activities in Missouri; that the income tax assessments in question fall within that description; and that respondent should not be allowed to exploint the Missouri consumer market and earn a profit without paying its fair share of the cost which Missouri bears in maintaining this market.

We need not rule the issue presented in view of the conclusions we have reached on subsequent assignments of error.

Appellant’s final assignment in the brief, filed while the cause was pending in Division No. 2, is that “the trial court erred in failing to find Public Law 86-272 * * * unconstitutional because said Public Law violates Article III, Section I, and the 10th Amendment of the United States Constitution.” Appellant also contended that “Public Law 86-272 should not be classified as a ‘remedial statute’ and should not be given a liberal construction.”

In appellant’s supplementary brief filed after the cause was transferred to Court en Banc appellant states:

“This case involves constitutional considerations which have never been the subject of adjudication. Congress has never before enacted a statute which re-defines or overrules judicial pronouncements defining ‘due process of law’ or what constitutes ‘regulation of interstate commerce.’ Appellant’s constitutional objections to Public Law 86-272 are not concerned with the relative roles to be played by state or federal governments, but with fear that the prohibitory nature of Public Law 86-272 can abolish the federal system and state governments altogether.” The points presented are, as follows:

“1. The imposition of a net income tax on income derived from sources within a state does not constitute a regulation of interstate commerce and therefore Congress is without power to forbid it. 2. Public Law 86-272 is an unconstitutional legislative effort to overrule the decisions of the Supreme Court of the United States which prescribe due process of law limitations on a state’s power to1 tax net income from sources and activities within its jurisdiction. 3. Public Law 86-272 is patently discriminatory against that portion of the business community that is not protected by its restrictive provisions, because it employs distinctions without substance which result in unconstitutional classifications for due process purposes.”

In the consideration of the above assignments we have been favored with amici curiae briefs on behalf of the State of Michigan, the Commonwealth of Pennsylvania and the State of Oregon, all of which seek to support the position taken by appellant.

Is Congress without power to prohibit a state from imposing a net income tax on income derived from sources within the state by a foreign corporation engaged in interstate commerce? Does such taxation constitute a “regulation” of interstate commerce ?

In Northwestern States Portland Cement Co. v. Minnesota, and Williams v. Stockham Valves & Fittings, Inc., cases considered together by the United States Supreme Court, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421, the Court pointed out that thirty-five states, including Minnesota and Georgia, imposed direct income taxes on foreign corporations engaged in interstate commerce. The taxpayers in the mentioned cases contended that the Minnesota and Georgia statutes violated both the “Due Process” and “Commerce Clauses” of the United States Constitution. The Court held: “We conclude that net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing State forming sufficient nexus to support the same. * * * Appellant’s activities in Minnesota consisted of a regular and systematic course of solicitation of orders for the sale of its products, each order being subject to acceptance, filling and delivery by it from its plant at Mason City [Iowa]. * * * In addition to the solicitation of approved dealers, appellant’s salesmen also contacted potential customers and users of cement products, such as builders, contractors, architects, and state, as well as local government purchasing agents. Orders were solicited and received from them, on special forms furnished by appellant, directed to an approved local dealer who in turn would fill them by placing a like order with appellant.”

In the Stockham case the taxpayer’s salesmen “carried on the usual sales activities, including regular solicitation, receipt and forwarding of orders to the Birmingham office and the promotion of business and good will. * * * Orders were taken * * * subject to approval of the home office and were shipped from Birmingham direct to the customer on an ‘f. o. b. warehouse’ basis.”

As to the income tax levied by the states, the Court said: “The taxes are not regulations in any sense of that term. Admittedly they do not discriminate against nor subj ect ■either corporation to an undue burden. While it is true that a State may not erect ■a wall around its borders preventing commerce an entry, it is axiomatic that the founders did not intend to immunize such commerce from carrying its fair share of the costs of the state government in return for the benefits it derives from within the State. * * * The record is without conflict that both corporations engage' in substantial income-producing activity in the taxing States.” The right of a state to levy an income tax under the facts shown was affirmed.

The above cases were decided February 24, 1959, and subsequent thereto the United States Supreme Court denied certiorari in two cases from Louisiana (International Shoe Co. v. Fontenot, 236 La. 279, 107 So.2d 640, cert. denied, 359 U.S. 984, 79 S.Ct. 943, 3 L.Ed.2d 933; Brown-Forman Distillers Corp. v. Collector of Revenue, 234 La. 651, 101 So.2d 70, cert. denied, 359 U.S. 28, 79 S.Ct. 602, 3 L.Ed.2d 625) - which cases affirmed the imposition of state income taxes on the two foreign corporations under facts somewhat similar to the facts stated above. Thereafter, Congress passed Public Law 86-272. Appellant contends that this type of legislation is totally unprecedented ; that it is the first exercise of congressional power to limit state taxation; and that the act is unconstitutional.

Appellant, of course, relies on the statement that the net income taxes levied by Minnesota and Georgia “are not regulations in any sense of that term,” and contends that Congress has no power to forbid a state to levy such a tax. Appellant argues that a net income tax is imposed upon an abstract concept of “net income,” and that it is not directly related to any particular activity and it is not material whether the income arose from activity wholly in interstate commerce. See Memphis Natural Gas Co. v. Beeler, 315 U.S. 649, 62 S.Ct. 857, 86 L.Ed. 1090. Appellant further contends that the legislature of any state in attempting to put upon business its fair share of the burden of income taxation was faced with the impossibility of allocating specifically the profits earned by the processes conducted within the borders of the state. See Bass, Ratcliff and Gretton v. State Tax Commission, 266 U.S. 271, 45 S.Ct. 82, 69 L.Ed. 282.

Appellant says “that, in enacting Public Law 86-272, Congress failed to recognize the lack of any fundamental relationship of a net income tax to specific commercial activities from which net income is derived, and therefore erroneously assumed that the restrictive doing-business features of Public Law 86-272 constitute regulation of interstate commerce,” hence the act is unconstitutional in that it does not constitute a regulation of interstate commerce and Congress was without authority to adopt it.

The Minnesota and Stockham cases conform to the proposition that it was not the purpose of the “Commerce Clause” to relieve those engaged in interstate commerce from their just share of state tax burden even though it increases the cost of doing business; and that even interstate business must pay its way. Many cases supporting the mentioned proposition, including the Minnesota and Stockham cases, are cited in the recent case of General Motors Corporation v. Washington, 377 U.S. 436, 84 S.Ct. 1564, 12 L.Ed.2d 430, decided June 8, 1964.

In the General Motors case, supra, 84 S.Ct. 1564, the Court held that local taxes measured by gross receipts from interstate commerce are constitutionally proper if they are fairly apportioned; that the validity of the tax rests upon whether the state is exacting a constitutionally fair demand for that aspect of interstate commerce to which it hears a special relation; that, in determining whether local taxes measured by gross receipts from interstate commerce impose an improper burden upon interstate commerce, the question is whether the state has exerted its power in proper proportion to the taxpayer’s activities within the state and to the taxpayer’s consequent enjoyment of opportunities and protections which the state has afforded; that a taxpayer claiming immunity from a tax has the burden of establishing his exemption and this burden is not met by showing a fair difference of opinion which as an original matter might be decided differently; and that a state is not precluded from imposing taxes upon other activities or aspects of interstate business which, unlike the privilege of doing interstate business, are subject to sovereign power of state.

The Commerce Clause of the Federal Constitution, Art. I, § 8, Clause 3, provides that: “The Congress shall have power: * * * To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes * * ” In view of this grant of power the state’s power to act in the field of interstate commerce is to some extent limited and controlled by the presence or absence of Congressional action in the particular field. See H. P. Hood & Sons v. DuMond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865. Another case to the same effect is United States v. Darby, 312 U.S. 100, 119, 61 S.Ct. 451, 459, 85 L.Ed. 609, where the Court said that, “In the absence of Congressional legislation on the subject state laws which are not regulations of the commerce itself or its instrumentalities are not forbidden even though they affect interstate commerce.” Also, see Minnesota and Stockham cases, 358 U.S. 450, 457, 79 S.Ct. 357, 362, where the Court referred to the fact that “Commerce between the States having grown up like Topsy, the Congress meanwhile not having undertaken to regulate taxation of it * *

Respondent concedes that Public Lav/ 86-272 does not prohibit the imposition of a state income tax under a factual situation where the taxpayer’s activities g'o beyond the minimum standards prescribed in the act, wherein Congress has in effect declared that certain minimum activities in interstate commerce are not sufficient to justify taxation of such commerce between the states and it is only where the activities in the taxing state exceed the minimum that a net income tax may be levied. Other cases such as International Shoe Co. v. Washington, 326 U.S. 310, 315, 66 S.Ct. 154, 158, 90 L.Ed. 95, indicate that Congress in the exercise of the power to regulate commerce “may authorize the states, in specified ways, to regulate interstate commerce or impose burdens upon it.”

The United States Supreme Court has refused to pass upon the wisdom of Congressional action in regulating commerce and in United States v. Darby, supra, 312 U.S. 100, 115, 61 S.Ct. 451, 457, the Court said: “The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no control.” In adopting Public Law 86-272 Congress is clearly, in our opinion, undertaking to regulate interstate commerce by providing a uniform statement of the facts, circumstances and conditions under which a state may not burden interstate commerce by state income taxes where the activities of the corporation in a foreign state do not exceed the minimum standard set itp in the act.

The mentioned act is in our view a regulation which Congress was authorized to make. It was intended to protect foreign corporations engaged in interstate commerce from state income taxes which Congress believed to be an excessive and unreasonable burden on interstate commerce. Respondent distributes its products into all of the fifty states and every state that seeks to levy an income tax on any such foreign corporation doing interstate commerce within its boundaries necessarily imposes an income tax under a different statute. The determination of the amount of the tax due each state and whether the amount bears a proper relationship to the particular activities carried on in each of the taxing states would alone impose a heavy burden, hindering and limiting interstate commerce.

We do not find that the act overrules any U. S. Court decisions, since Congress and the Courts operate in different fields. Nor do we find any merit in the contention that the act is unconstitutional because “patently discriminatory against local business.” Intrastate business is controlled by the State, interstate commerce is controlled and regulated by Congress. The authority to act in the respective cases emanates from different sources. Nor do we find that the act employs distinctions without substance which result in unconstitutional classifications, nor that the act is unconstitutional on any of the grounds presented.

Since the filing of the briefs in this case and its submission here, the Supreme Court of Louisiana, in a well considered opinion with which we agree, has found the Federal act to be constitutional, hence that the State was without authority to levy an income tax on the profits arising from interstate commerce transactions under the facts shown. International Shoe Co. v. Cocreham, 246 La. 244, 164 So.2d 314.

The judgment of the circuit court is affirmed.

All concur.