author: HOLLINGSWORTH, Judge. EAGER, Judge

text:
    STATE of Missouri ex rel. Albert W. POWERS and Pearline Powers, his Wife, John Ebner and Gladys Ebner, his Wife, Adele Erb, Gladys M. Bellstein, Elmer J. Hoelzer and Carolyn Hoelzer, his Wife, Personally and as Class Representatives of Persons Similarly Situate, Oakville Point Taxpayers Association, a Corporation, Respondents, v. Carroll J. DONOHUE, Edward W. Garnholz, Paul M. Morris, Harry N. Soffer, Constituting the St. Louis County Board of Election Commissioners, St. Louis County, Missouri, and James H. J. McNary, Intervenors, and Vigus Quarries, Inc., a Corporation, Intervenor, Appellants. STATE of Missouri ex rel. Carroll J. DONOHUE, Edward W. Garnholz, Paul M. Morris and Harry N. Soffer, Constituting the St. Louis County Board of Election Commissioners, the County of St. Louis, Missouri, James H. J. McNary, as Supervisor of the County of St. Louis, Missouri, and Vigus Quarries, Inc., a Corporation, Relators, v. Noah WEINSTEIN, Judge of the Circuit Court for the Thirteenth Judicial District of the State of Missouri, Respondent.
    Nos. 49824, 49825.
    Supreme Court of Missouri, En Banc.
    June 4, 1963.
    George E. Schaaf, Clayton, for St. Louis County Board of Election Com’rs, Carroll J. Donohue, Edward W. Garnholz, Paul M. Morris, Harry N. Soffer, as Members Thereof.
    Norman C. Parker, St. Louis County Counselor, Donald J. Stohr, Asst. County Counselor, Wm. J. Becker, Clayton, for Vigus Quarries, Inc.
    H. Jackson Daniel and Robert T. Johnson, St. Louis, for respondents.
   HOLLINGSWORTH, Judge.

These cases present the question of the right of the people of St. Louis County to propose by initiative petition an amendment of the comprehensive zoning ordinance of the county. The title of the proposed ordinance is:

.“An ordinance amending the St. Louis County zoning ordinance and the official zoning district maps which are a part thereof, by changing the boundaries of ‘K’ heavy industrial district and the ‘C 20,000 square foot single family district so that there will be transferred from the ‘K’ heavy industrial district to the ‘C’ 20,000 square foot single family district on the official zoning district maps certain property specifically described herein and repealing ordinance No. 2518.”

In the first case (No. 49824) certain citizen-landowners of St. Louis County, personally and as class representatives of other such persons similarly situate, and Oak-ville Point Taxpayers Association, a pro forma, non-profit corporation, as plaintiffs, filed a petition in the Circuit Court of the County of St. Louis seeking a writ of mandamus directed to the originally named defendants as members of the Board of Election Commissioners of St. Louis County to require said board to place on the ballot at the general election to be held in St. Louis County on November 6, 1962, for submission to a vote of the people the above titled ordinance, as proposed in an initiative petition signed by some 11,700 citizens and taxpayers of the county. The court issued its alternative writ directing the board to place the proposed ordinance upon the ballot as prayed in the petition or to show cause for its refusal so to do. The board filed return and answer setting forth in detail its reasons for its refusal. Plaintiffs filed reply and a motion for summary judgment. During pendency of the motion for summary judgment, St. Louis County and James H. J. McNqry as Supervisor of said county, alleging that the county’s political and corporate status would be directly affected by any final judgment rendered in the mandamus proceeding, sought and were granted leave to intervene as parties defendant; also, during pendency of said motion, Vigus Quarries, Inc., alleging that it was the owner of the tract of land described in the ordinance, consisting of 225 acres, and had invested $525,000 in developing a quarry business thereon, likewise sought and was granted leave to intervene as a party defendant. Said intervening defendants separately filed answer and return in which they, in substance, joined with the board in denying that the people of the county were vested with the right to cause to be placed upon the ballot for enactment the proposed amendment to the zoning ordinance of the county by use of initiative petition. Upon consideration of the matters of fact and law pleaded in behalf of each and all of the parties, the court, over objection of all of the defending parties decided that no material issue of fact was involved, that the only material issue involved was one of law, and summarily rendered judgment making the alternative writ peremptory; and ordered the board to place the ordinance on the election ballot. The original and intervening defendants filed notice of appeal.

The trial court refused to stay its writ pending the appeal. Whereupon, the defendants in that action, by petition filed in this court (case No. 49825), sought to prohibit the trial judge from further enforcement of the writ of mandamus pending decision of the appeal taken. Our provisional rule issued and the two cases were consolidated.

Jurisdiction of the appeal lies in this court because St. Louis County is a party to the action. Article V, § 3, Constitution of Missouri, V.A.M.S.

The following facts are not in dispute. St. Louis County in accordance with the provisions of Article VI, §§ 18(a)-18(f) of the constitution, adopted its charter in 1950. Oakville Point Taxpayers Association was incorporated in 1945. Its declared purpose is the preservation and protection of property values in the Oakville area .of the county in which the 225 acre tract here in question lies. Vigus Quarries acquired that tract in January, 1962. On May 16, 1962, the county council, by ordinance No. 2518, rezoned the 225 acre tract from a “C” 20,000 square feet single family district to a “K” heavy industrial district and granted Vigus a special use permit to maintain a quarry thereon. Although some of the individual plaintiffs (respondents) herein appeared at a public hearing held prior to enactment of the ordinance and protested the enactment thereof, no question is here raised as to the validity of the action of the council in rezoning the 225 acre tract as set forth in said ordinance.

Immediately after enactment thereof, respondents instituted, but thereafter abandoned, referendum procedure seeking to effect repeal of it. Following abandonment of the referendum procedure, respondents procured and filed the initiative petitions in question. The effect of the ordinance proposed by these petitions was to repeal the county council’s rezoning of the 225 acre tract from an industrial classification, to again place it in a single family classification and to void the special use permit granted Vigus. On September 14, 1962, the Board of Election Commissioners, having considered the initiative petitions, refused to place the ordinance thus proposed on the ballot.

Appellants (the Board of Election Commissioners, the County and Vigus) have assigned numerous grounds seeking reversal of the judgment summarily rendered by the trial court. But first, and, if sound, necessarily dispositive of the case, is their contention that the ordinance purporting to amend a zoning ordinance of the county is not subject to initiative procedure since enactment thereof by means of such procedure would circumvent (a) the lawfully required public hearing before the County Planning Commission after public notice and posting of signs; (b) report thereon to the county council; and (c) legislative action by the county council only after such procedure.

Respondents (citizen-landowning taxpayers, individually and as representatives of their class, and Oakville Taxpayers Association) assert that the trial court correctly overruled appellants’ motion to dismiss for the reason that respondents have the right under the constitution and statutes of Missouri and the charter and ordinances of the county to submit ordinances, including those relating to zoning, to a vote of the people through initiative petition. In support of that contention, they say: the initiative and referendum are applicable to acts which are legislative in character, not to those dealing with administrative or executive matters; zoning matters are legislative in character; the initiative petition is a proper vehicle for the submission of a zoning change to a vote of the people; and the procedural requirements of the charter and ordinances of St. Louis County relative to notice and hearing were constructively complied with by respondents.

In asserting that the constitution and the laws of this state and the charter and ordinances of St. Louis County vest the county with the right to submit the proposed amendment to a vote of the people through means of the initiative, respondents cite as their basic authority Article III, § 49, of the Constitution of Missouri. That section and §§ 50 to 52(a) thereinafter following set forth the power reserved to the people of Missouri to propose and enact or reject laws and amendments to the constitution by initiative and to approve or reject by referendum acts of the general assembly. Those provisions, standing alone, do not of course solve the problem with which we here are confronted. The powers reserved to the people of St. Louis County with respect to use of the initiative and referendum are defined and limited by its charter, Article VII, § 77, of which provides:

“The people reserve the power to propose and enact or reject ordinances and amendments to this Charter, independent of the Council, to approve or reject by referendum any ordinance of the Council except emergency measures, and to recall any elective County officer.”
Article III, § 18, of the charter provides:
“Emergency ordinances shall require the affirmative vote of not less than five members of the Council and shall take effect immediately upon their enactment. Emergency ordinances shall be those ordinances relating to the following:
******
“(5) Amendments to the zoning ordinance, provided that a general revision of the zoning ordinance shall not be deemed to be an emergency ordinance ;”
Article III, 22, of the charter provides:
“Pursuant to and in conformity with the Constitution of Missouri and without limiting the generality of the powers vested in the Council by this Charter, the Council shall have, by ordinance, the power:
* * * * * *
“(20) To exercise legislative power pertaining to public health, police and traffic, building construction, and planning and zoning, in the part of the County outside incorporated cities, * * * as may hereafter be authorized by the Constitution or by law, provided that, until superseded by ordinances of the Council, the laws pertaining to said matters shall continue to be valid and effective.”

Article V, § 57, of the charter creates the Planning Commission and § 58 of said article defines its powers and duties as follows :

“The Planning Commission (which consists of nine members) shall have jurisdiction and all the powers and duties now provided by law, consistent with the provisions of this charter, until otherwise provided by ordinance. No ordinance relating to zoning which is contrary to the recommendation of a majority of the members of the Planning Commission shall be adopted by the Council except by an affirmative vote of five members of the Council.”

Procedures for zoning changes and amendments, as authorized under the charter, are contained in § 1003.340, St. Louis County Revised Ordinances, as follows:

“1. Procedure for Change in Zoning: Whenever the public necessity, convenience, general welfare and good zoning practice require, the County Council may order, after a public hearing, report thereon by the Commission and subject to the procedure provided in this section, amend, supplement, or change the regulations, zoning district boundaries or classification of property now or hereafter established by this Section. * * *
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“3. Hearing Date — Notice—Posting of Signs — Penalty for Removal or Defacement.
“Upon the filing with the Commission of such petition, addressed to the St. Louis County Council, or upon the adoption of a resolution of intention by the Commission, or Order of the County Council, the matter shall be referred to the Planning Director for report, and shall be set for public hearing before the Planning Commission within sixty days, and the Planning Director shall: * *

Subsections (1) and (2) of Paragraph 3 prescribe in elaborate detail the method and form of publication and the form, wording, number and size of signs required to be posted.

Limitations on initiative are set forth in § 106.010, St. Louis County Revised Ordinances, as follows:

“No ordinance shall be submitted to the voters by initiative petition unless the subject thereof is within the legislative power granted to charter counties by the Constitution. In passing on the sufficiency of an initiative petition the Board of Election Commissioners shall refuse to submit any proposed ordinance to the voters if unlawful or unconstitutional.”

Respondents cite in support of their contention that zoning ordinances are legislative in character the case of Carson v. Oxenhandler (1960), Mo.App., 334 S.W.2d 394, and numerous cases from other jurisdictions. Appellants readily concede that contention but they insist that in ordering the Board of Election Commissioners to place the initiatively proposed ordinance on the ballot, judgment of the trial court would result in the people exercising legislative power expressly delegated by the charter to the county council; and that, if such action were upheld, the comprehensive zoning ordinance of the county would be crippled and the “due process” safeguards set forth in the above quoted ordinance (§ 1003.340) rendered useless.

The principle asserted by appellants is well illustrated and confirmed by this court in the case of Baum v. City of St. Louis, 343 Mo. 738, 123 S.W.2d 48. In that case a taxpayer filed a suit against the election commissioners of the city to enjoin the holding of an election for the purpose of voting two ordinances under the initiative provisions of the city charter. The purposes of the proposed ordinances were (1) to acquire a five-cent fare mass transportation system and to issue revenue bonds in payment thereof and (2) to call an election to vote on the proposition of voting such bonds. Neither of these proposed ordinances had been recommended by the Board of Public Works. The plaintiff in said action alleged that the proposed ordinances were void because the city charter provided that no ordinance for public work or improvement of any kind could be legally adopted unless prepared and recommended by the board of public service with an estimate of the cost endorsed thereon. In sustaining the contention thus made, this court said, 123 S.W.2d loc.cit. 50: “The enactment of an ordinance under the initiative provisions of a charter, for a public improvement which was not recommended by the Board of Public Service, would interrupt and destroy the scheme and purpose of the restrictions contained in section 1, article 22, supra, as effectively as if such ordinance was adopted by the Board of Aldermen. Restrictions on the power of the Board of Aldermen of a city to enact ordinances are as a rule applicable to proposals under the initiative provisions.” Following citations and quotations from numerous cases from several other states holding to the same effect, this court ruled the in-itiatively proposed ordinances void, stating that any other interpretation would defeat the purpose of the charter. In reaching that conclusion the court cited with approval a statement made by this court in American Tobacco Co. v. Missouri Pac. Ry. Co., 247 Mo. 374, 157 S.W. 502, 553, with respect to a similar ordinance: “The clear purpose of the charter is and was to provide a wise, comprehensive, durable, and symmetrical system of public improvements, and create a board of public works, and place it in charge thereof, with power and authority to see that all public work desired by the City should conform to that system. The object of placing the system of improvements in the hands of the board was to secure to the public, and the owners of the property affected by the work, the benefit of the knowledge, skill, and unbiased judgment of a body of scientific men, unaffected by local influences, incident to all public improvements.”

The Baum case, supra, was also cited and followed in 1954 by the Supreme Court of Utah, in deciding the right of the people of Salt Lake City to rezone an area therein by use of initiative procedure, in the case of Dewey v. Doxey-Layton Realty Co., 3 Utah 2d 1, 277 P.2d 805. The opinion stated, in part, loc.cit. 807: “Of course, an ordinance proposed by the electors of a city under the initiative law must constitute such legislation as the legislative body of the city has the power to enact under the law defining the powers of such body. In Baum v. City of St. Louis, 343 Mo. 738, 123 S.W.2d 48, it was held that ordinances initiated by petition regarding the acquisition of a municipal transportation system were not within the powers of the legislative body inasmuch as the charter prohibited the adoption of ordinances pertaining to pub-lie works or improvements unless they were prepared and recommended by the board of public service.” That court also observed, loc.cit. 808: “As to zoning ordinances, although there are many cases which apply the provisions of a referendum act * * *, we have not been cited to a case where zoning by initiative was accepted by the courts.” The court then concluded that the legislature had delegated the power of zoning to the legislative bodies of cities and towns, subject to the restrictions and procedures as defined by the power so granted, and that initiative procedures were hopelessly inconsistent and in conflict with the procedure required for consideration and enactment of zoning ordinances.

Despite the holding of the Baum and Dewey cases, supra, and supporting citations from numerous other cases, respondents say: “To deny of the citizens of this state the right to correct zoning injustices tli rough the initiative procedure would be to deny to them any measure of control over this vital aspect of their lives and property and to deprive them of any political-action remedy against outright confiscation and the most grievous wrongs. With respect to the propriety of submitting a zoning change, by the initiative process, this precise point is a case of first impression, not only in this court, but has apparently never been squarely raised in any other appellate court in this country. The point has only been discussed by inference, and obiter dictum. However, it should be noted in the cases which follow, which involve the propriety of submitting zoning changes to the vote of the people, through initiative petition, that in no case did any court unequivocally state that this was an incorrect or unlawful procedure.”

In support of that contention respondents have cited the case of Barnes et al. v. City of Miami et al. (1950), Fla., 47 So.2d 3. In that case plaintiffs appealed from an order of the circuit court dismissing their suit to enjoin the City of Miami and its legislative body (commissioners) from calling and holding an election under initiative provisions of the city charter to determine whether the city commission should adopt an ordinance entitled, loc.cit. 4: “An Ordinance Providing for Low-Cost Housing and Slum Clearance; Providing for Application of Preliminary Advance of Funds by the Housing Authority of the City of Miami, Florida; Providing for a Cooperative Agreement Between the City of Miami, Florida, Dade County, and the United States of America, Acting By and Through Their Respective Duly Authorized Officials and Employees; and Authorizing and Instructing the City Manager and Any and All Other Duly Authorized Officials to Execute the Attached Agreements.”

The statutory charter of the city provided, loc.cit. 4: “The people shall have power at their option to propose ordinances, including ordinances granting franchises or privileges and to adopt the same at the polls, such power being known as the initiative.” The court, in commenting upon the effect of that provision said, loc.cit. 4: “The power of the initiative may be conferred by the state upon a municipal corporation in respect to any matter, legislative or administrative, within the realm of municipal affairs. Where the power of initiative is given by the legislature it will be generally held to extend to all matters of local concern, unless some matters are expressly or impliedly excluded from its operation by exceptions contained in the charter, the general statutes of the state, or constitutional provisions. (Citing cases.) Statutes giving the power of initiative to the electors of a municipality are to be liberally construed by the courts to the ends of permitting rather than restricting the power and to attaining rather than preventing its object.” The court then reviewed the Housing Authority Statutes and noted, loc.cit. 6, that to implement the program “exemption from taxation must be given and provisions made for payments in lieu of taxes; streets must be vacated within the area of the project as may be necessary in its development; waivers of the City building code must be granted; changes must be made in zoning restrictions; grants of easements, and dedications of streets, roads, alleys and sidewalks, must be accepted. All these things must be done through the adoption of ordinances by the legislative body of the City; for the City Manager, as the administrative head of the municipal government, does not have the power or authority to close streets, give waivers of the building code, change zoning restrictions, or accept grants of easements or dedications of streets, roads, alleys and sidewalks. The City Manager may not bind the City or enter into a contract of the nature proposed without authorization of the City authorities or the electors who will be bound by it.” It then concluded, loc.cit. 6: “[Wjhatever may be the extent of the City’s power under the initiative provision of its charter, the authority of the City to submit the proposed issue to the electors must be sustained, whether under the view that the provision is unlimited in its aspect or whether on the ground that the matter proposed is legislative in character.”

We do not consider the situation presented in that case analogous to the situation here presented. It does not invoke the initiative provisions of a county charter to propose a zoning ordinance. In fact, zoning is not even mentioned in the title of the proposed ordinance. Neither does the subject matter deal with the enactment of such an ordinance. Rather does it deal with the power of the people of the city to seek by means of the initiative the enactment of «in ordinance authorizing the city to engage in a public housing program under the U. S. Housing Authority Act of 1937 and the statute of Florida accepting the provisions thereof. The provisions with reference to zoning changes are incidental only to the question of approval or rejection of the major project.

Respondents have also cited the case of Carson v. Oxenhandler, Mo.App., 334 S.W. 2d 394, which originated in the circuit court of St. Louis County and went on appeal to the St. Louis Court of Appeals. That case, as the Barnes case, supra, involved, not a zoning ordinance, but the right of the people to invoke the referendum provisions of the charter of the county to submit to a referendum election an ordinance authorizing the county to enter into a cooperation agreement with its Housing Authority. Nothing said therein detracts in any manner from the principle announced in the Baum case, supra, and followed by the courts of several other states.

Finally, respondents contend that the requirements of the county charter and the ordinances relative to notice and hearing were constructively complied with by respondents, citing In re Initiative Petition No. 9 of Oklahoma City, 185 Okla. 165, 90 P.2d 665. That case is similar to this only in that it dealt with the legal sufficiency of a form of an initiative petition, which had been challenged only in that respect. The question there considered was in no wise similar to the question here presented.

Respondents say, however, that they “agree that the holding of the court in Baum v. City of St. Louis, supra, was that, for the purposes of that factual situation, those proposing an ordinance should adhere to the same procedural requirements imposed upon the legislative body. However, there has been full compliance with public notice and hearings and to require respondents to hold the same hearings all over again would be absurd, unnecessary and an unwarranted tribute to formalistic minutiae.” That contention is untenable. The provisions of the St. Louis County charter and ordinances enacted pursuant thereto expressly provide that zoning ordinances may be enacted by the city council, after a public hearing, following pubic notice published in newspapers and posted signs, consideration of and report by the Planning Commission. The purpose and unequivocal legal import of these provisions are obvious. The ordinance here sought to be enacted by initiative procedure is a zoning ordinance repealing, in effect, the provisions of an amendatory zoning ordinance enacted in accordance with the provisions of the charter. Certainly, hearing and other procedures required and followed in adopting the original amendment cannot be accepted as constituting compliance with a proposed ordinance which would repeal the original amendment.

For the reasons above stated we are constrained to hold that any purported enactment of an amendment to the comprehensive zoning ordinance of the county without lawful compliance with those provisions would be unlawful and void.

The judgment of the trial court is reversed and remanded with directions to quash the writ of mandamus by it issued (in case No. 49824) and to sustain appellants’ motion to dismiss the action with prejudice; and the provisional rule in prohibition issued by this court (in case No. 49825) is made absolute.

WESTHUES, C. J., and STORCKMAN, DALTON and HYDE, JJ., concur.

EAGER, J., concurs in result in separate opinion filed.

LEEDY, J., concurs in result and concurs in separate opinion of EAGER, J.

EAGER, Judge

(concurring in result).

I would find no particular difficulty in holding that the notices, hearing and report as given, conducted and made in connection with the prior Ordinance No. 2518 would supply those requirements for the Ordinance now proposed; they referred to and affected precisely the same matter.

I would prefer to put this holding upon the basic fact that the respondents are attempting to accomplish by indirection that which they are specifically prohibited from doing directly; that is to say, they may not create any amendment to the zoning ordinance by referendum, but in fact and in substance they are here seeking a referendum upon the enactment of the prior ordinance. I would doubt that any zoning amendment may be accomplished by initiative.

      . All emphasis herein is that of this court.

      . Tlie constitution, Art. VI, § 18(c), provides that counties operating under special charter “may provide for the vesting and exercise of legislative power pertaining to ⅞ * ⅜ planning and zoning, in the part of the county outside incorporate cities; * * s."

      . The St. Louis County charter, iu express terms, excludes the use of referendum procedure to amend the zoning ordinance. See Art. VII, § 77, and Art. HI, § 18 (5), of the charter quoted supra. Respondents do not contend otherwise.


source: Caselaw Access Project

author: LEEDY, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Alfred WASHINGTON, Appellant.
    No. 49100.
    Supreme Court of Missouri, Division No. 2.
    June 4, 1963.

      William C. Schock, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Scott O. Wright, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   LEEDY, Judge.

Alfred (Romeo) Washington was convicted of murder in the second degree in having killed Augusta Shepherd in the City of St. Louis on October 7, 1960, by striking, knocking, hitting and beating her with his fists with great force and violence. Punishment was fixed by the trial judge (upon finding that defendant had been convicted and sentenced for two prior felonies, as alleged in the information) at thirty years’ imprisonment. Sentence and judgment went accordingly, and this appeal followed.

The motion for new trial contained four assignments, one of which has not been briefed on this appeal, and, therefore, has been abandoned. Another, the first, is that “The verdict is against the law, against the evidence, and against the weight of the evidence.” It should no longer be necessary to cite cases holding this assignment wholly insufficient (for want of particularity under Rule 27.20 V.A.M.R.) to preserve anything for appellate review; but among the cases so holding are State v. Summers (Mo.), 362 S.W. 2d 537, 540; State v. Roberts (Mo.), 332 S.W.2d 896, 898; State v. Daegele (Mo.), 302 S.W.2d 20, 22; State v. Schramm (Mo.), 275 S.W.2d 343. The two other grounds of the motion for new trial respectively complain of admitting in evidence certain photographs, and of the form of the manslaughter instruction (No. 3).

Defendant’s brief concedes the sufficiency of the evidence to make a case for the jury on the issue of manslaughter, and then, under the guise of arguing ground one of his motion for new trial (held insufficient), treats said ground as having embraced and charged error “in accepting a verdict of second degree murder from the jury, for the reason that the evidence was insufficient * * * [to prove the elements of deliberation and malice which are necessary to constitute murder in the second degree].” If sustainable under the record, this would have constituted plain error affecting a substantial right of defendant (the maximum punishment for manslaughter being ten years, whereas he has been sentenced to thirty for second degree murder), and hence might be considered under Rule 27.20(c), in the discretion of the court, even though not raised in the trial court, nor preserved for review. That rule has not been invoked, but we may say in passing that failure so to do will have worked no harm or prejudice in this instance because the record not only does not support the assignment, but, on the contrary, negates it. The facts clearly warranted the submission of the hypothesis of second degree murder, as will appear from our outline of those facts necessary to an understanding of the points hereinafter considered. They are sordid and revolting in the extreme.

Defendant, aged 25 at the time of trial, is colored, as was the deceased, Augusta (referred to in the record as “Gussie,” and we shall so designate her), who was apparently a prostitute. She lived (presumably in a single room) on the second floor of a crowded, dilapidated old tenement house at 1831 Franklin Avenue in the City of St. Louis. At the rear of the building was an area called a courtyard. Access to the structure could be gained either through the entrance fronting on Franklin Avenue, or by going down an alley, then passing through a gangway into the courtyard and entering from the rear. In going to Gussie’s room by the latter route, one would ascend the outdoor stairway to the upstairs porch, and thence along the porch to the door to the hall leading to Gussie’s room.

Pearlie May Trotter lived at the same address, but in the rear; that is, across the courtyard from, and opposite Gussie’s place of abode. She testified that about 2:30 on the afternoon in question, she was “in her front window looking out” when she “seed Miss Gussie Shepherd and Romeo come through the alley,” and go through the gangway, and up the steps and to Gus-sie’s door, “but they didn’t go in the house.” Witness then left the window, and went to her porch. She testified that at this juncture “they was wrestling, and he hit her four or five times standing up, and then he knocked her down, and when he knocked her down he kept beating her — hit her four or five times — and he pulled down his pants and underwear, then got down on her * * * he tore her panties off, and he got on her, and he was still beating her, and she was hollering, ‘Johnny, come help me.’ ” He also hit her four or five times as she was trying to get up. He continued to have or attempt to have intercourse with her for “maybe five or ten minutes or longer, * * * then he got up off her and drug her in the house * * * by the arm.” He entered the doorway where Gussie lived, and witness saw them go to Gussie’s room. While defendant was beating Gussie, the witness called the police, and also avl akened her friend and guest, Marie Ivory, who came to the porch at once. The police arrived, hut in the meantime another affray had broken out, a man and wife fighting in the alley, and the police directed their attention to this disturbance, and when told by Pearlie May of the real subject of the call, said they didn’t have time to attend to it, and she piit in another call for the police, but there was a twenty-five or thirty minute delay in their arrival. Meanwhile, defendant, who had remained inside until shortly before the police arrived, came out and left the premises. As he was leaving “there was men in the gangway gambling, and he said to them they haven’t seed anything and don’t know nothing.” The witness did not know any of these men in the gangway. As he left, defendant “had his [corduroy] coat tied around in front of him,” and was wearing a white shirt, khaki pants and “had blood on his clothes.” Witness had been acquainted with defendant a year and a half or two years.

Marie Ivory was also called by the state, and in general her testimony followed very closely and corroborated that of Pearlie May. For this reason, we do not restate its purport, except to say that Marie was somewhat more specific in describing the delivery of some of the blows; that is, that defendant struck deceased on the left side of the face at least three times, and this seemed to render her unconscious.

When the police came, they went upstairs and “found the door open, and on looking in observed the body of a woman partially nude and apparently dead. She was lying across the bed on her back with her legs apart and her clothing ripped off of her, and quite a bit of blood. The bed was splattered with blood and blood around on the floor.”

The autopsy disclosed the following with respect to the condition of Gussie’s body and the cause of her death: That she had a contused wound at the temporal side of the right eye, a contused wound with a large hematoma involving the left side of the face and left side of the neck, a puncture wound on the left forearm, lateral side contusion over the twelfth rib on the left side of the chest, midaxillary line and contusions of forehead, left; her scalp showed extensive hemorrhage under the galia on the left side; the brain was congested, spine and spinal cord showed fractures, dislocation of the atlas onto axis with hemorrhage into spinal canal; a sub-pleural hemorrhage and fracture of the twelfth rib on the left side of the chest; the cause of death was fracture dislocation of the spine with hemorrhage into the spinal canal. The pathologist gave it as his opinion that death from such an injury would have resulted “anywhere from fifteen to thirty minutes,” and that from the type of contusions found on Gussie’s body, her fatal injury could have been caused by blows from the fist.

Defendant’s version of the facts differs widely from that of the state. In substance, his testimony was to this effect: That he and Gussie had been drinking in a nearby bar or tavern, and that he there gave her $3.00 for which she agreed to engage in sexual intercourse with him, and it was in pursuance of that agreement that they proceeded from the tavern to the Franklin Avenue address together; that (as recited in his brief) “they proceeded up to the hallway of her flat, where an argument took place. Apparently, the adjoining room she had intended to use for the act of prostitution was busy with another party, and an argument took place concerning the refund of the $3.00. When the deceased refused to return the money, there was a struggle in the hallway and [an] act of intercourse [‘with her consent’]; * * * he had not hurt the deceased in any manner during this phase of the happenings [although he admitted hitting her three or four times when in the hall, but these, he insisted, ‘were not with the fist, but just slaps’] ; * * * that the struggle was of a minor nature, and it took place in the hallway and not on the porch; * * * that the important phase of the afternoon’s events took place inside the bedroom; * * * that he was lying on the bed resting when he was attacked by the deceased with a metal object * * * and stabbed above the eyes on his forehead. He got up immediately and defended himself” by hitting her a couple of times, and she fell back against the bed, then got up — “she was sort of dazed” — and he “hit her a couple of times more,” and she got up again. He testified he then “tapped her around a couple of times, and she was kicking and biting, and I hit her harder on the side of the head, and when I hit her the last time she fell across the bed.” His testimony then proceeded in this fashion:

“Q How many times after the second time she got up did you hit her ? A About six times.
“Q With what force did you hit her? A I would say three were good solid blows. * * * And when I hit her the last time she fell across the bed, and I figured I knocked her out, and I left her lay there, and I got my clothes and put them on and left. * * *
“Q Was she alive ? A I can’t say whether she was alive or dead, but she looked to be breathing.
“Q How much blood was on her person? A From the mouth and in the nose, I would say not too much, not really bloody.”

Asked why he didn’t get help for Gussie, he replied, “I didn’t think she was really hurt. I just thought I knocked her out, and she would be all right.” Then followed this question and answer:

“Q Had you realized you lost your temper? A No, I wouldn’t say I stopped to analyze that or figure it out.”

After leaving the premises, he changed his clothes (which had bloodstains on them), went out Broadway to the Chain of Rocks bridge and hitchhiked a ride to Chicago. From there he went to Arizona, where he was apprehended in the latter part of the following December and returned to St. Louis.

The pathologist to the coroner further testified that in his examination of the body he found several of the upper teeth had been knocked out, and that this had been done recently, the other teeth appearing to be normal (no dentures). The police found a tooth and two pieces of a broken hair comb in the hallway; they found a gold-capped tooth on the porch, and two teeth were found on the bed.

Point II of defendant’s brief complains that the “court committed error in not sustaining defendant’s objection to the introduction in evidence of certain photographs of the body of deceased * * * [for reasons now belatedly specified for the first time].” The only objection interposed at the trial to the offer of such photographs was by defendant’s counsel in these words: “I obj ect strenuously to introduction of these photographs.” This constituted no objection at all, and the court was justified in overruling it because of its generality and failure to specify any reason. Accordingly, the defendant is not entitled to complain of their gruesomeness on this appeal. Such a complaint was not even made on motion for new trial or otherwise suggested to the trial court, much less when that court was called upon to rule on the admissibility of the photographs, i. e., when offered. But apart from this, there would have been no error in so ruling even if the objection now urged had been timely made. The photographs depict the scene of the homicide as found by the police, the semi-nude body of deceased lying, face up, on the bed with large quantities of blood on her face, arms and body and on the mattress underneath, her mouth and lips obviously swollen. The matters and things thus shown are indicative of the severity of the battery committed upon Gussie’s person, and, to a marked degree, the intent with which it was committed, and the extent thereof, thereby completely negating (when considered in conjunction with the other facts and circumstances hereinabove detailed) defendant’s claim of want of evidence of premeditation for the submission of the hypothesis of second degree murder.

In addition to instructions on murder in the first degree and murder in the second degree (as well as on self-defense), the court also gave instruction No. 3 covering the subject of manslaughter, reading as follows :

“If you find the defendant not guilty of murder in the first degree and not guilty of murder in the second degree, as explained in the foregoing instructions, then you will consider whether or not, under the evidence in the case, the defendant is guilty of manslaughter.

“Manslaughter is the killing of a human being not herein declared to be murder in the first or second degree, or excusable or justifiable homicide, and the Court instructs you that if you find and believe from the evidence, beyond a reasonable doubt, that the defendant, Alfred Washington, at the City of St. Louis and State of Missouri on the 7th day of October, 1960, with his fists, intentionally struck, knocked, hit and beat one Augusta Shepherd, without malice and without premeditation, as those terms are hereinbefore explained, and under such circumstances that it is not justifiable or excusable homicide, and not in the lawful defense of his person, as defined in another instruction, and if you further find that said Augusta Shepherd died from the effects of such divers wounds, cuts, bruises, abrasions and contusions, then you will find the defendant guilty of manslaughter, and unless you so find the facts to be, you will acquit the defendant of manslaughter.

“ ‘Excusable homicide’ as used in these instructions, means the accidental killing of another.

“ ‘Justifiable homicide’ as used in these instructions, means the killing of another in the lawful defense of one’s person, as more fully explained in another instruction given you.”

The complaint directed against this instruction is that it “failed to define manslaughter perpetrated by the defendant while in the heat of passion upon lawful provocation.” We take it that by the use of the words “failed to define” defendant means failed to submit facts hypothesizing a heat of passion situation, and not failure to define the words “heat of passion.” If so, under his own testimony defendant was not entitled to such hypothesization, this because he did not claim he acted in the heat of passion, as the last quoted question and answer from his testimony conclusively demonstrates. Nor were the facts as a whole of such nature as to require that hypothesization as a part of the law of the case under Rule 26.02(6) whether requested or not.

We have examined those portions of the record required by Rule 28.02, and find no reversible error therein. The judgment is, therefore, affirmed.

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Nick CIVELLA, Appellant.
    No. 49479.
    Supreme Court of Missouri, Division No. 2.
    June 4, 1963.

      James Patrick Quinn, and Alex Peebles, Kansas City, for defendant-appellant.
    Thomas F. Eagleton, Atty. Gen., Eugene G. Bushmann, Asst. Atty. Gen., Jefferson City, for respondent.
   STOCKARD, Commissioner.

Nick Civella has appealed from the judgment of the Circuit Court of Jackson County wherein he was fined $500 and sentenced to confinement in the county jail for a term of six months for willfully failing to file an income tax return for the year 1957. See Section 143.330. (All statutory references are to RSMo 1959, V.A. M.S., unless otherwise stated). Although the offense of which appellant was found guilty is a misdemeanor, this court has jurisdiction. Points presented in appellant’s brief present issues involving the construction of the constitution of this state. Our disposition of this appeal makes it unnecessary to rule these issues, but they are noted subsequently. Flowever, when issues involving the construction of the constitution are properly presented in good faith, are not fictitious in that a colorable issue only is presented, and are otherwise before us for consideration, this court has jurisdiction and retains it even though in the final disposition of the case we find it unnecessary to decide these questions. McCord v. Missouri Crooked River Backwater Levee District of Ray County, Mo., 295 S.W.2d 42, 44; Haley v. Horjul, Inc., Mo., 281 S.W. 2d 832.

The case was submitted to the trial court without a jury on an agreed statement of facts. We need set out only a portion of the facts contained therein.

During 1957 and 1958 appellant was a resident of Jackson County, Missouri. During 1957 he received a gross income in Missouri of $19,800.85 consisting of salaries in the amount of $12,480 and income from other sources in the amount of $7,320.85. In April 1958 he filed a federal income tax return and reported therein the above income and paid the tax. By the agreed statement of facts appellant does not admit that he did not timely file a Missouri income tax return for the year 1957. Only two provisions in the statement bear on this issue. They are as follows:

“4. That the Missouri Director of Revenue and his agents and employees made a search of all of the files of the Missouri Director of Revenue in Jefferson City, Missouri, and the Branch Office in Kansas City, Missouri, 911 or about July 1, 1960, and no Missouri Income Tax Return by the said Nick Civella for the calendar year 1957 was found; * *
“7. That on September 1, 1960, with knowledge that the instant action, * * was pending, the Director of Revenue, through his duly authorized agents and deputies, proceeded to make an assessment against Nick Civella for the year 1957, said assessment including tax due, penalty and interest; that said tax amounted to Four Hundred Forty-nine and 83/100 ($449.83) Dollars, that the penalty was determined to be Twenty-five (25%) per cent, an amount of One Hundred Twelve and 46/100 ($112.46) Dollars, and the interest amounted to Sixty-five and 23/100 ($65.23) Dollars; that Nick Civella then and there paid said amounts totaling Six Hundred Twenty Seven and 52/100 ($627.52) Dollars; that the Director of Revenue deposited said sum to the accounts of the State of Missouri and has ever since said time retained said monies.

Section 143.230 requires that “Everyone who is subject to a tax based on income shall on the second day of January of each year or as soon thereafter as practicable, apply to the director of revenue for a proper blank on which to make a return of income for the preceding year. The return shall be filed with the director of revenue on or before the fifteenth day of April next following, except in cases where return is made by a person or corporation on a fiscal year basis * * Section 32.040 requires the director of revenue to establish and maintain “permanent branch offices in the cities of St. Louis and Kansas City,” and Section 143.210 provides that “For the purpose of administration of this chapter [income tax] the director of revenue may establish temporary or permanent branch offices in such localities of the state as the business may warrant, for the purposes of making forms available, taking returns thereon, or such other business occasioned by this chapter as the director of revenue may specify. * * * Returns by persons residing within this state and who are under a duty to file a return, * * * may be made to any of such branch offices and during such times as the director of revenue may establish such branch offices for receiving income tax returns, or to the main office of the state department of revenue; * * (Emphasis added). In April 1958, in addition to the two permanent branch offices, there were eight other branch offices located in eight separate cities of Missouri.

In view of the express language of Section 143.210 authorizing appellant to file his income tax return in any one of eleven different places, we must and do conclude that proof, whether by oral testimony or by way of an agreed statement of facts, only that no income tax return by appellant for the year 1957 could be found in the Kansas City branch office or the main office at Jefferson City, without proof that all returns filed at all branch offices are forwarded to the Jefferson City office, does not constitute sufficient proof from which it may be determined beyond a reasonable doubt that no return at all was filed. In addition, the stipulated fact that subsequently appellant paid the tax due on his income for the year 1957, with penalties and interest, does not warrant the finding that he filed no return. The charge is not failing to pay the tax timely, but willfully failing to file a return, and appellant could have filed the return without paying the tax and have been subject to the payment of penalties and interest. See Section 143.330. The burden was on the state to prove the commission of the offense charged; not on •the appellant to prove his innocence. For this reason the present judgment cannot stand. However, if appellant'did not timely file an income tax return this fact is easily susceptible of proof. Unless there is some reason urged by appellant that a judgment of guilty could not in any event stand, the reversal of the judgment in this case should be accompanied with a remand. See State v. Paglino, Mo., 291 S.W.2d 850 and 319 S.W.2d 613. We shall examine the contentions of appellant, which, if sustained, would preclude further trial.

Appellant asserts that the Circuit Court of Jackson County lacked “jurisdiction” because the offense, if any, is charged to have been committed in Cole County. He relies on the language of the substitute information that “at the County of Jackson, State of Missouri, [appellant] did then and there unlawfully, wilfully and knowingly fail and refuse to file a return for Missouri State income tax for the year 1957 with the Director of Revenue, Jefferson City, Missouri, as required by law, * * Section 143.230 provides that income tax returns “shall be filed with the director of revenue;” not with the “director of revenue, Jefferson City, Missouri.” Section 143.210 provides where that return should be filed, that is, with “any of such branch offices * * * or to the main office of the state department of revenue.” We do not agree with appellant that the substitute information charged that the offense was committed in Cole County. It expressly alleged the commission of the offense to have occurred in Jackson County. The reference to “Jefferson City, Missouri” was descriptive only and constituted surplusage.

Appellant next contends that he is constitutionally guaranteed, Art. I, Sec. 18(a) Constitution of Missouri, V.A.M.S., as well as by statute, Section 541.030, that all crimes, including this offense, be prosecuted in the county in which the offense is committed, and that the offense of failing to file an income tax return is committed, if at all, only in Cole County because the return is required to be filed with the director of revenue who is located in Jefferson City.

In the trial court, in support of its contention that venue for the prosecution was in Jackson County, the state relied on Section 541.035, Laws of Missouri 1957, p. 388, V.A.M.S.Supp., which provides as follows: “Offenses for failure or refusal to comply with any law requiring a report to be filed or made in or to the state of Missouri, or any department or officer thereof, shall be held to be committed in the county of the residence of the person failing or refusing to file or make such report, except where the person shall reside without the state of Missouri, in which event the unlawful act is deemed to have been committed in the county wherein the report is required by law to be filed.” Appellant contends, first, that an income tax return is not a report, and second, that this statute is unconstitutional on the ground that it is in violation of Section 18(a), Article I, Constitution of Missouri which guarantees to appellant “a speedy public trial by an impartial jury of the county” wherein the offense was committed. See State v. Anderson, 191 Mo. 134, 90 S.W. 95; State v. Mispagel, 207 Mo. 557, 106 S.W. 513; State v. Fluesmeier, 318 Mo. 803, 1 S.W.2d 133. We find that it is not necessary to rule whether or not an income tax return is a report within the meaning of this statute, although we think it unquestionably is, and it also is not necessary to rule on the constitutionality of Section 541.035. If this statute is constitutional then by reason of it the proper venue for the trial of this case was in Jackson County. But, if the statute is not constitutional, the proper venue was still in Jackson County for the reasons we shall subsequently set out.

Section 541.030 provides that “Offenses committed against the laws of this state shall be punished in the county in which the offense is committed, except as .may be otherwise provided by law.” It has long been the uniformly accepted rule that “Where the offense consists of a failure or omission to act, the crime is usually regarded as committed in the district [or county] where the act should have been performed. Thus, where one is required by a penal law to file a document in a certain district [or county], the failure to do so is a crime committed in the district [or county] in which the document was required to be filed.” 22 C.J.S. Criminal Law § 182(1), pp. 443-445. In this case appellant was not required to file an income tax return in Cole County. By express statutory authority he had the option to file the return with the director of revenue in one of several places, including Jackson County. The determinative question thus presented is, what is the place of the offense of willfully failing to file an income tax return when the accused had the right to file it in ten different counties and the City of St. Louis? Although we have found no previous case in this state, nor have we been cited to one, ruling this question, the federal courts have had the precise situation before them. In United States v. Commerford (2d Cir.) 64 F.2d 28, the statute required that a federal income tax return be made “to the collector for the district in which is located the legal residence or principal place of business of the person making the return.” The defendant resided in one district and his principal place of business was in another. He therefore had the option to file the return in two different places. The indictment charged a failure to file in either district. It was held: “When omission to act constitutes a crime, the venue is the jurisdictional locality where the act should have been performed. * * * And where the offense, as here, consists of the failure to file a document, it is committed in the place where the document should have been filed and not elsewhere. * * * The act of filing a return should have been done in either the Eastern or Southern district. * * * [F]iling a return in either district discharges the taxpayer’s complete duty in both districts. Equally a failure to make a return in either district is an offense in both districts, and the offender may be tried in either district. The objection that this would permit a taxpayer to be tried twice for what is, in substance, one offense, is erroneous. We do not say that the taxpayer owes two duties to file a return or that failure to make a return constitutes two separate offenses. There is but one duty to make a return, and failure constitutes but one offense, and that duty exists and the offense occurs in two districts.” Certiorari to the United States Supreme Court was denied. Commerford v. United States, 289 U.S. 759, 53 S.Ct. 792, 77 L.Ed 1502. We also find that the precise question, but with facts more comparable to those before us, has been ruled by the courts of the State of New York. In People v. Colbert, 263 App.Div. 36, 31 N.Y.S.2d 246, the statute required that an income tax return be made to the state tax commission, the main office of which was in Albany. The commission was authorized to divide the state into districts in each of which a branch office could be maintained, and by regulation it was provided that “Returns of income must be delivered or mailed to any one of the district offices of the income tax bureau of the state tax commission,” of which there were seven. The court held: “As the regulations provided that delivery of a return, * * * to any one of the district offices would be sufficient, a failure to deliver a return * * * to any of these offices would seem to constitute a violation of the law in each of the counties where the district offices were maintained. In other words, the statute gives the taxpayer the choice of seven places in which to file his return * * *, and failure to file * * * in any of these places is an act of omission occurring in each thereof. * * * As the law now stands it affords the taxpayer an opportunity to make a return * * * in any one of seven counties. Violation of his duty would seem to impose liability of prosecution in any of these counties.”

We approve of the reasoning, theory and result of the Commerford and Colbert cases. In this case appellant had the duty to file an income tax return with the director of revenue. He was afforded the right to comply with that duty in several places, including Jackson County, the county of his residence. His willful failure to comply with that duty constituted an offense at the place or places where he failed to comply, one of which was Jackson County. Therefore, without reliance upon Section S41.03S the indictment of appellant was properly found in Jackson County, and the trial was properly held there pursuant to the information substituted for the indictment. We need not now concern ourselves with the question of whether, by reason of Section S41.03S, Jackson County would be the only place- where the offense could be charged.

Appellant also contends that the imposition of a jail sentence upon an agreed statement of facts constitutes a violation of the due process clause of the Missouri and federal Constitutions. By reason of our reversal of the judgment, and remand of the cause, the case is sent back for retrial anew. Whether or not an agreed statement of facts- will again be entered into is a matter to be worked out between the prosecution officials and counsel for appellant. Also, the punishment imposed, in the event there is a verdict of guilty based on an agreed statement of facts, may or may not include a jail sentence. We need not decide the now academic question of the limitations of the due process clause, if any, on the authority of a trial court to impose the punishment of a jail sentence in a criminal case when the sole evidence before it is an agreed statement of facts.

Appellant next asserts that the agreed statement of facts filed in this case does not authorize a finding of willfullness. Again, this is now an academic question on the record before us. A statement of the facts in a new trial may be different, or there may be no agreed statement at all and the record may consist of oral testimony and documentary evidence.

Appellant also asserts that the “quality of the omission (willful or non-willfully) was judicially determined by the director of revenue and that judgment is binding upon the state in this action.” Appellant relies on the fact that the director of revenue with the counsel and advice of the attorney general for the State of Missouri, made an assessment against appellant for income tax due for the year 1957, including penalties of twenty-five per cent. Section 143.330 provides that if “without intent to evade the income tax” a taxpayer fails to file a return or pay the tax within the time prescribed by law there shall be added to the tax a penalty of five per cent for each thirty days or fraction thereof during which such failure continues, at the discretion of the director of revenue, not to exceed twenty-five per cent in the aggregate. However, it is also provided that “If any part of any deficiency is due to fraud with intent to evade tax, then fifty per cent of the total amount of the deficiency shall be assessed, collected and paid * * *.” Appellant’s contention is that the determination by the director of revenue that a penalty of twenty-five per cent was appropriate, and not fifty per cent, constituted a judicial determination that appellant did not “willfully” fail to file a return, which is now conclusive in this criminal proceeding. We do not agree. The record discloses no compromise whereby the director of revenue purported to agree that this criminal case would not be prosecuted if appellant paid the tax and the assessed penalty, assuming authority on his part to make such agreement. The action of the director of revenue in collecting the tax, including the penalty and interest, was a civil proceeding, and if appellant believed the decision of the director to have been erroneous it was subject to judicial review. However, Section 143.330 makes it clear that willfully failing to make a return shall “in addition to all other penalties provided in this chapter” constitute a misdemeanor. The determination by the director was, at most, that a deficiency in the payment of the tax by appellant was not “due to fraud with intent to evade tax.” This did not constitute a judicial determination binding on the state that appellant did not willfully fail to file a return. Appellant relies primarily on a statement in State v. Kosovitz, Mo., 342 S.W.2d 828, 831, as follows : “It has been held that the actions of our Boards of Equalization and of the State Tax Commission are judicial acts. * * * Consequently, such an order, made within the respective tribunal’s jurisdiction, has the effect of a judgment and is not subject to collateral attack. * * * We see no reason why the acts of the Director of Revenue in assessing income taxes should not be similarly classified.” The Kosovitz case was a civil suit to collect taxes and the above statement was made in reference to the right of a taxpayer, after the time had expired for a judicial review, to make a collateral attack on an assessment by the director of revenue on the ground that it was void as distinguished from erroneous. We consider it not applicable to the situation before us. The federal cases cited by appellant also are not at all applicable because of the differences in the circumstances.

The final contention is that the statute of limitations bars this proceeding. Section 143.330, in effect at the time this criminal action was commenced, see Laws of Missouri 1957, p. 801, provided that all prosecutions for willfully failing to file an income tax return “shall be brought within one year after the discovery by the director of revenue or his agents of * * * the existence of income which should require a return; provided that no such a prosecution shall be brought after the expiration of four years from the date * * * a return should have been filed and the taxpayer willfully failed to file same.” The one year period is now three years. See Laws of Missouri 1961, p. 616, 617. Appellant’s position is that this action was commenced more than one year after seven partnerships, in which appellant had an interest, and his employer made information reports to the director of revenue showing his income, and that this constituted notice to the director of revenue of the existence of income which should require appellant to file a return. The statute starts the one-year (now three-year) period of limitation to run after “the discovery” by the director of revenue or his agents, of (1) the falsity of a return, or (2) the existence of income which should require a return. “Discovery” within the meaning of this statute calls for something more than merely having certain facts available in numerous documents contained in a voluminous mass of other material. The statute requires that the director of revenue or his agents must have discovered income, from the material available to him or from some other source, which should require a return. It is the four-year period which applies to the situation where the director should have discovered the existence of the income. We consider inapplicable the cases cited and relied on by appellant pertaining to constructive knowledge in civil cases based on fraud.

None of the various contentions presented by appellant would prevent a retrial of this case, and for the reasons previously stated the judgment is reversed and the cause remanded.

BOHLING, C., concurs.

BARRETT, C., dissents.

PER CURIAM.

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

All of the Judges concur.


author: STOCKARD, Commissioner. PER CURIAM.

text:
    Harry IRWIN et al., Respondents, v. GLOBE-DEMOCRAT PUBLISHING COMPANY, a corporation, Appellant.
    No. 49026.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied June 4, 1963.

      Hoclter, Goodwin & MacGreevy, Lon Hocker, St. Louis, for defendant-appellant.
    William A. Geary, Jr., St. Louis, for respondents.
   STOCKARD, Commissioner.

This is an appeal from a judgment wherein seventeen plaintiffs were awarded “dismissal pay” in various amounts totaling $20,260.90 alleged to be due pursuant to the terms of a collective bargaining agreement between the St. Louis Paper Handlers, Sheet Straighteners and Stock Room Employees’ Union No. 16 (hereafter referred to as “Local No. 16”), affiliated with the International Printing Pressmen and Assistants’ Union of North America AFL-CIO, and the St. Louis Newspaper Publishers’ Association, of which the Globe-Democrat Publishing Company (hereafter referred to as the “Globe-Democrat”) was a member.

On February 21, 1959, certain employees of the Globe-Democrat who were members of the St. Louis Newspaper Guild, a labor union not directly affiliated with Local No. 16, went on strike and established a picket line at the Globe-Democrat’s place of operations. Although the collective bargaining agreement, under which the plaintiffs as members of Local No. 16 were working and upon which this suit is based, provided that members of Local No. 16 had a right to decline to cross a picket line only when the picket line resulted “from a strike that has been sanctioned by the International Printing Pressmen and Assistants’ Union of North America,” and the Guild strike was not so sanctioned, the plaintiffs declined to cross the Guild picket line, or at least they did not do so. On the day the Guild strike started the publisher of the Globe-Democrat sent a letter to each plaintiff in which he stated, among other things, “I regret very much that the Globe-Democrat will not be able to publish its Sunday edition because of a strike by the St. Louis Newspaper Guild. It does not appear probable that publication will be resumed in the immediate future.” On the following day the Globe-Democrat sent a telegram to the president of Local No. 16, which was received by him, in which it was stated that no “lockout” of the members of Local No. 16 existed and that “Any Globe-Democrat employee member of your Union who has presented himself today or continues to report for work at his accustomed place of work on his regular work days and hours will be put to work and paid his regular day’s pay at the straight time rate until the work stoppage caused by the Newspaper Guild is ended or until further notice.” No plaintiff presented himself for work.

On February 27, 1959, the Globe-Democrat sold to the St. Louis Post-Dispatch all of its physical property for the printing of its newspaper and entered into a contract with the Post-Dispatch whereby it would print the Globe-Democrat newspaper when the Guild strike ended. A notice of this sale was furnished to the president of Local No. 16 and to each plaintiff. Prior to February 27, 1959 eleven of the plaintiffs had accepted employment with the Post-Dispatch, and shortly thereafter and before the Guild strike ended, the remaining plaintiffs accepted such employment. On May 27, 1959, the day the Guild strike terminated, a number of the plaintiffs and the president of Local No. 16 went to a place near the Globe-Democrat building and the president called the personnel director of the Globe-Democrat by telephone and asked “if they wanted them to come into the plant,” and was advised that “they were no longer employed by the Globe-Democrat Publishing Company.”

By this suit plaintiffs as third party beneficiaries, Baron v. Kurn, 349 Mo. 1202, 164 S.W.2d 310, 142 A.L.R. 787, seek to recover “dismissal pay” pursuant to a collective bargaining agreement between Local No. 16 and the St. Louis Newspaper Publishers’ Association, the relevant provisions of which are as follows:

“Article XII. Dismissal Pay. Sec. 1. In the event of merger, consolidation or permanent suspension of publication by any newspaper covered by the Agreement all employes who lose employment thereby shall receive dismissal pay as follows:
“(a) Employes who have held regular situations for more than six (6) months but less than one (1) year shall be paid six (6) weeks’ dismissal pay.
“(b) Employes who have held regular situations for more than one (1) year shall be paid twelve (12) weeks’ dismissal pay.
“Sec. 2. Any employe who has held a regular situation for one (1) year or more who is laid off to reduce the force shall receive dismissal pay on the basis of one (1) week’s pay for each year of continuous priority.
“Sec. 3. Dismissal pay shall be at the employe’s regular straight time rate of pay as of the time of dismissal.
“Sec. 4. When an employe is laid off due to a reduction in force he shall hold re-employment rights in the chapel from which he was laid off for a period of one (1) year. Refusal of an employe to take a job in chapel, when called back to work, shall waive his re-employment rights.”

Plaintiffs alleged in their petition that they “were laid off to reduce the force of defendant, thereby entitling them to receive dismissal pay under Sections 2 and 3 of Article XII of said Collective Bargaining Agreement.” They further alleged the circumstances of the sale by the Globe-Democrat of its printing facilities, and that upon termination of the Guild strike on May 27, 1959, they presented themselves at the defendant’s place of business “ready, willing and able to continue their employment, but plaintiffs were then notified of their lay-off by defendant.” Prior to the trial each plaintiff made answers to interrogatories under oath and stated therein that the “last date he was employed by defendant” was May 27, 1959, and that “he was laid off by defendant at that time.” Notwithstanding the allegations in their petition and the above answers to the interrogatories, which were not amended, plaintiffs submitted their case to the jury, and now contend on this appeal, that they were “ ‘laid off to reduce the force’ on February 27, 1959,” because on that day the Globe-Democrat “contracted away the printing of its newspaper,” sold the tools “necessary to fulfill those operations,” and notified plaintiffs of the sale. “Taken together,” plaintiffs contend, “the circumstances operate to entitle respondents to dismissal pay under Article XII, Section 2 of their contract.” This change in position apparently was believed necessary because the collective bargaining agreement upon which this suit is based, by its express terms, expired on December 31, 1958. It was then extended by oral agreement to March 2, 1959, but was not further extended insofar as the Globe-Democrat was concerned, and a new agreement was negotiated between Local No. 16 and the St. Louis Post-Dispatch only, which was executed on May 13, 1959, two weeks before the Guild strike was terminated. At that time each and all plaintiffs had accepted employment at the Post-Dispatch.

On this appeal the Globe-Democrat contends that plaintiffs are bound by their pleadings and the answers to their interrogatories and as a result they did not establish the occurrence of a layoff to reduce the force while a contract was in existence. It also contends that if the pleadings and answers to interrogatories be ignored and it be considered that plaintiffs’ employment was terminated on February 27, for the reasons and under the circumstances contended by plaintiffs, the termination did not amount to a layoff to reduce the force. In view of our ruling on the second contention we need not rule the first.

The collective bargaining agreement does not provide for “dismissal pay” in all situations where the employment status is terminated, other than those specifically excepted, as do some and probably most labor agreements. See Globe-Democrat Publishing Company v. Industrial Commission, Mo.App., 301 S.W.2d 846; Talberth v. Guy Gannett Publishing Company, 149 Me. 286, 100 A.2d 726, 40 A.L.R.2d 1036; Matthews v. Minnesota Tribune Co., 215 Minn. 369, 10 N.W.2d 230, 147 A.L.R. 147; 40 A.L.R.2d 1044. On the contrary, it provides for “dismissal pay” in only certain specifically defined situations, and in doing so it relieves the employer of any liability for “dismissal pay” in all other situations. In determining whether the termination of employment at the time and for the reasons asserted by plaintiffs constituted one of the specific situations in which dismissal pay is required to be paid, the collective bargaining agreement is subject to the same rules of interpretation as other contracts and should be realistically construed to accomplish its evident aims. 56 C.J.S. Master and Servant § 28 (41)a.

Plaintiffs make no contention that they are entitled to “dismissal pay” pursuant to Section 1 of Article XII of the agreement. Their claim is based solely on the theory that their employment status was terminated on February 27, 1959, and that that termination constituted a layoff to reduce the force. “The term ‘layoff’, in the field of employment, has a well-defined meaning. * * * It does not mean termination of employment, but rather does it mean: ‘The act of laying off, esp. work or workmen; a period of being off or laid off work; a shutdown; a respite.’” ACF Industries, Inc. v. Industrial Commission, Mo., 320 S.W.2d 484, 491. As stated in 56 C.J.S. Master and Servant, § 29, “ ‘Labor separations’ are classified as ‘quits,’ * *, ‘discharges’ * * *, and ‘layoffs,’ which have been defined as terminations of employment at the will of the employer, without prejudice to the worker, and may be due to lack of orders, technical changes, or the failure of flow of parts or materials to the job, as needed.” A “layoff,” as distinguished from a discharge, contemplates a period during which a working man is temporarily dismissed, Fishgold v. Sullivan Drydock & Repair Corp., 2 Cir., 154 F.2d 785, 788, and it also refers to that suspension of work or employment during a part or season of the year when business activity is partly or completely suspended. Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 1112, 90 L.Ed. 1230, 167 A.L.R. 110. See also Lord Mfg. Co. v. Nemenz, D.C., 65 F.Supp. 711; International Ass’n. of Machinists v. State ex rel. Watson, 153 Fla. 672, 15 So. 2d 485; Anderson v. Twin City Rapid Transit Co., 250 Minn. 167, 84 N.W.2d 593; State ex rel. Ausburn v. City of Seattle, 190 Wash. 222, 67 P.2d 913, 111 A.L.R. 418. An employee “laid off” does not have his employment status completely and finally terminated. He ordinarily is entitled to re-employment when the temporary situation calling for the layoff has been corrected or eliminated. The precise term used in this case was “laid off to reduce the force” which has reference to the situation where an employee is temporarily laid off with re-employment rights because neither he nor any one else is then needed to perform the work he ordinarily performed. This is to be distinguished from the situation where an employee is laid off for a temporary period for disciplinary reasons. In this latter situation there is no reduction in force. Yet, without the qualifying phrase “to reduce the force” being in the agreement the employer would be required to make payment of “dismissal pay,” in such situations; a result obviously not intended. The collective bargaining agreement in this case used the term “laid off to reduce the force” in the above sense because it specifically provides that an employee “laid off due to a reduction in force” shall “hold re-employment rights in the chapel [place of employment] from which he was laid off for a period of one (1) year.” While there is no separate provision in the agreement pertaining to “discharges” and “lay offs,” reference is made in Article IX, pertaining to vacations, to “an employe discharged for cause.” This indicates a knowledge of the distinction between ■“lay offs” and “discharges.”

On February 27, 1959, each plaintiff was not working because he was voluntarily refraining from reporting for work. He was not “laid off to reduce the force” because the termination of employment, even under plaintiffs’ theory, was not intended to be temporary with re-employment rights. The termination of plaintiffs’ employment was permanent and therefore they were “discharged.” The collective bargaining agreement does not provide for “dismissal pay” to a “discharged” employee except as set forth in Section 1 of Article XII, and plaintiffs expressly disaffirm any claim pursuant to that provision. This construction of the agreement is consistent with its evident aims. A “discharged” employee is entitled to “dismissal pay” in the amount provided (which is greater than when laid off to reduce the force) when the discharge results from the specifically stated situations and he loses employment thereby. An employee is entitled to “dismissal pay” in a lesser amount when he is “laid off to reduce the force,” that is, not for disciplinary reasons, with re-employment rights for one year. In this case neither factual situation came into existence.

The authorities cited and relied upon by plaintiffs are readily distinguishable. In Matthews v. Minnesota Tribune Co., 215 Minn. 369, 10 N.W.2d 230, 147 A.L.R. 147, the collective bargaining agreement provided for severance pay “upon dismissal, except for drunkenness, proven dishonesty or gross neglect of duty.” The newspaper employer sold all of its business to another newspaper. The court held that when an employer disposes of all of his business it operates as a discharge or dismissal of his employees. The right to severance pay accrued in the event of a dismissal except in three specifically defined situations. Here the right to dismissal pay accrued, as far as plaintiffs are concerned, only in the event they were “laid off to reduce the force” and when they retained employment rights for one year. In re Public Ledger, 3 Cir., 161 F.2d 762, pertained to a bankruptcy proceeding. It was held that suspension of the business in bankruptcy amounted to a discharge of the bankrupt’s employees, and that because of the use of the terms “layoff” and “discharge” in the collective bargaining agreement, “the ‘layoff’ provisions of the contract are in fact provisions covering discharge as well as temporary layoffs.” While the language of that agreement may have justified the conclusion there reached, we find no reason to say in this case that both of the parties to the agreement intended to say one thing when they in fact said another. Plaintiffs also rely on the reported decisions in two arbitration cases. Regardless of the credence these two reports are entitled to receive, they do not support plaintiffs. In the Standard Oil of California case, 31 Labor Arbitration Reports, 472, the union there contended contrary to the position of plaintiffs in this case that the term “layoff” “refers to a tern-porary status, rather than a permanent termination of employment.” The arbitrator held that in the contract “No clear distinction is made between a ‘discharge’ and a ‘layoff,’ ” and that the term “layoff” as used in the agreement was not limited to a temporary severance of employment but envisioned the possibility of a permanent separation. For the reasons previously stated, a clear distinction was made in the use of the terms in this case. In Brooklyn Eagle, 32 Labor Arbitration Reports, 156, plaintiffs quote not from the opinion but from the head note. In that case the newspaper permanently ceased all operations during a strike. The labor agreement provided for “severance indemnity” for “dismissal” except when for “dishonesty, repeated drunkenness after warning, gross neglect of duty or gross insubordination.” This is in substance the same as the Matthews case.

The agreement in this case was negotiated by Fred A. Atkins on behalf of Local No. 16 who at time of trial had been a member of the union for fifteen years. He had been an officer of the union for ten years including seven years as president, and he had also served as business agent. The agreement was signed by Mr. Atkins and by Tom LaRocca, who participated in the negotiations and was “standing committee member on the Executive Board” of Local No. 16. The negotiators for the St. Louis Newspaper Publishers’ Association were Richard G. Baumhoff and Munro Roberts from the Post-Dispatch and G. D. Bau-man from the Globe-Democrat. It is not unreasonable to assume that all of these persons were familiar with the newspaper business and that they held themselves out, at least to some extent, as experts in the field of labor negotiations. The process of collective bargaining over the terms of a labor contract, at least in theory, results in demands, counter demands and concessions until an agreement is reached. It is not the situation where one party presents a written proposed agreement subject only to acceptance as presented or rejection. The process of collective bargaining necessarily implies that the terms of an approved agreement were thoughtfully prepared by persons seeking to express the precise agreement between the parties. In the absence of some reason to require a different rule, and we find none here, “The test of the meaning, of words commonly used, should be their ordinary and popular meaning; and they should not be construed in the broadest sense possible to include meanings to which they would not be applied by most people.” Cleaver v. Central States Life Ins. Co., 346 Mo. 548, 142 S.W.2d 474, 129 A.L.R. 1094. We have no right, in interpreting a collective bargaining agreement, to say that by the use of words and phrases which have well-defined and commonly understood meanings in the field of labor relations the parties did not mean what they said. We cannot interpret such an agreement as we may think it should have been written. Neither can we interpolate words into an agreement which are not there and thereby rewrite the agreement to what third party beneficiaries of that agreement now argue the parties surely must have meant because otherwise the agreement does not favorably cover, as to them, a situation which subsequently arose. For all we know, the language used in the agreement was intentionally used as the result of a compromise between demands by the union for dismissal pay in the event of termination of employment for any reason and a demand by the employer representatives that there be no provision whatever for dismissal pay.

Plaintiffs were not “laid off to reduce the force” but were discharged, or at least their employment with the Globe-Democrat was permanently terminated. The terms of the collective bargaining agreement upon which plaintiffs rely do not impose an obligation-on the Globe-Democrat to pay to plaintiffs “dismissal pay” under those circumstances, and no obligation for such payment exists in the absence of an agreement.

The judgment is reversed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.

On Motion for Rehearing or to Transfer to Court En Banc.

PER CURIAM.

Plaintiffs contend in their motion for rehearing that we did not “take into account section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C.A., Section 185(a) and the decided cases of the Supreme Court of the United States holding that there should be a uniform body of substantive law conformable to the federal law in the field of labor relations,” and that in deciding issues arising out of collective bargaining contracts this court “was sitting as a court of the United States,” and consequently it was bound by the Seventh Amendment to the Constitution of the United States.

We have examined plaintiffs’ brief filed in this court and we fail to find any reference to the above contentions. Only one federal case was cited in their brief, In re Public Ledger, Inc., 3 Cir., 161 F.2d 762. Plaintiffs placed their complete reliance upon that case and upon cases from this and other states, and upon the report in two arbitration decisions, all of which we expressly considered in the opinion. It has long been the rule that new propositions and complaints not submitted in the original brief, Ford v. Wabash Ry. Co., 318 Mo. 723, 300 S.W. 769, 778, and raised for the first time after the opinion is handed down, Phippin v. Missouri Pacific R. Co., 196 Mo. 321, 93 S.W. 410, 418, or which are clearly afterthoughts, State ex rel. Cole v. Matthews, Mo., 274 S.W.2d 286, 292, will not be considered on motion for rehearing. We do not propose now to change or relax that rule. However, if in a suit in a state court on a collective bargaining agreement by an employee we are required to apply “federal substantive law,” and we did not do so and the result reached is contrary to. such law, then plain error would have resulted. In our discretion, we may consider plain error affecting substantial rights, Civil Rule 79.04, V.A.M.R., and on that discretionary basis we shall examine the contention, presented now for the first time, that we erred in not ruling the case pursuant to “federal substantive law” which plaintiffs at no time urged.

Section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185(a), provides as follows: “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” In Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246, the United States Supreme Court, speaking through Mr. Justice White, stated that this section “has substantive content and that Congress has directed the courts to formulate and apply federal law to suits for violation of collective bargaining contracts.” Quoting then from Local 174, Teamsters, etc. v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593, the court also said: “ 'The possibility that individual contract terms might have different meanings under state and federal law would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements.’ ”

Plaintiffs assert that because “federal law” is to be applied to this case the “opinion should be reviewed to determine if it is harmonious with the body of substantive law in the field of labor relations as promulgated by the federal courts,” and that if it is not this court should modify its opinion to so conform. The “body of substantive law” relied upon by respondents in their motion for rehearing, and in the suggestions in support thereof, consists of but one federal case (another federal case is cited in support of a different point), the same one cited in their original brief to this court, In re Public Ledger, Inc., 3 Cir., 161 F,2d 762, and their argument pertaining to the substantive law of that case is precisely the same as that presented in their original brief which we carefully considered and rejected as decisive of the issue on appeal. Upon re-examination we are still of the opinion that In re Public Ledger, Inc. does not require nor justify a ruling different from that reached in the principal opinion.

In the preparation of the principal opinion we ruled the issues by giving the language of the contract its normal meaning in accordance with its accepted usage. In determining this meaning we looked not only to the one federal case and the numerous state cases cited by respondents, but we also looked to and relied on other cases found by us in the course of our research including two cases in the lower federal courts and one opinion of the Supreme Court of the United States. No federal case was then found, none has been found upon re-examination, and respondents certainly have cited no federal case which, in the words of Mr. Justice White, formulates and applies federal law which would require or justify a result different from that we reached in the principal opinion. Assuming, therefore, that in this suit we were required to apply federal substantive law, it is our conclusion that we did so and that we did so correctly. There is absolutely nothing in Smith v. Evening Press Association, or the other federal cases cited by plaintiffs in the motion for rehearing, which directly or inferentially holds that the result we reached is contrary to federal substantive law, and plaintiffs certainly have not demonstrated that on the merits we reached an incorrect result.

We do not agree, assuming we are required to apply federal substantive law, that in doing so this court “was sitting as a court of the United States” any more than it is sitting as a court of a sister state when it applies the law of that state. Therefore, there is no merit to the contention that the Seventh Amendment to the Federal Constitution has any application to this case.

All other matters in the motion for rehearing have been carefully considered and are found to be without merit, and the motion for rehearing is overruled.

Respondents also assert that because of the issues presented for the first time in their motion for rehearing “there is now involved in this cause a federal question,” and they are entitled to have this case transferred to the court en banc.

Section 9, Article V, Constitution of Missouri, V.A.M.S., provides that a cause shall be transferred to the court en banc when (a) the members of a division are equally divided in opinion, (b) when the division shall so order, (c) on the application of the losing party when a member of the division dissents from the opinion therein, (d) when “a federal question is involved,” and (e) pursuant to supreme court rule. This court has held that the term “federal question” as used in Section 9 of Article V is to be “interpreted according to the standard” contained in Section 3 of Article V, pertaining to jurisdiction of the supreme court, which refers to “cases involving the construction of the Constitution of the United States or of this state, the validity of a treaty or statute of the United States, or any authority exercised under the laws of the United States, * * *.” McAllister v. St. Louis Merchants’ Bridge Terminal Ry. Co., 324 Mo. 1005, 25 S.W.2d 791; Huckleberry v. Missouri Pac. R. Co., 324 Mo. 1025, 26 S.W.2d 980, 988; Pashea v. Terminal R. Ass’n of St. Louis, 350 Mo. 132, 165 S.W.2d 691, 696; State ex rel. Perrine v. Keirnan, 361 Mo. 871, 237 S.W.2d 156. This case, as submitted to this court, did not involve a federal question. New matters not submitted in the original brief but raised for the first time in a motion for rehearing after the opinion is handed do\yn do not present any federal question requiring a transfer to the court en banc. No supreme court rule requires a transfer of. this case, and after careful ■consideration we conclude that no reason •exists for this division to order a transfer. The alternative motion to transfer to the court en banc is-denied.