author: BARRETT, Commissioner.

text:
    Eunice M. HUME, Appellant, v. Delbert Lee CRANE, Respondent.
    No. 48625.
    Supreme Court of Missouri, Division No. 2.
    Jan. 8, 1962.

      Arnold & Trammell, Dexter, for appellant.
    Blanton & Blanton, Sikeston,1 for respondent.
   BARRETT, Commissioner.

In July 1957, Eunice Robinson and her then husband, Clarence O. Robinson, left Stoddard County and with their daughter and son-in-law, Delbert L. Crane, made a trip to California in the son-in-law’s 1957 Buick automobile. On the return trip, with Mr. Robinson driving, the automobile skidded on wet pavement, left Highway 66 and overturned near Santa Rosa, New Mexico. Mr. Robinson died as a result of the accident and Mrs. Robinson was injured. To recover damages for her injuries Mrs. Robinson instituted a suit against the administrator of her husband’s estate in the Circuit Court of Stoddard County. The suit was in two counts, both alleging certain specific acts of negligence on the part of her husband and the fact that she and her husband were guests of their son-in-law. The first count was designed to bring her action within the New Mexico guest statute and so it was alleged that the accident and Mrs. Robinson’s injuries were “caused by his (the husband’s) heedlessness or his reckless disregard of the rights of others.” 9 N.M.S.A., Sec. 64-24— 1. The second and alternative count alleged the same specific acts as ordinary negligence. The circuit court dismissed the suit and upon Mrs. Robinson’s appeal to this court, following Romero v. Romero, 58 N.M. 201, 269 P.2d 748, it was held that she could not maintain the action. Specifically, this court held that “under New Mexico law a wife does not have a cause of action against her husband for personal injuries sustained during cover-ture through his negligent acts.” Robinson v. Gaines, (Mo.) 331 S.W.2d 653, 658. Incidentally, speaking of the married women’s act, the New Mexico court had said, “we are of opinion, and so hold, that it did not create a substantive right of action against her husband for a tort committed against her.” Romero v. Romero, 58 N.M. l.c. 205, 269 P.2d l.c. 750. And see annotation 43 A.L.R.2d 632, 639.

Mrs. Robinson, now Mrs. Hume, being unsuccessful in her action against the administrator of her former husband’s estate, has instituted, in the Circuit Court of Stoddard County, this action against her son-in-law, Delbert Crane, who was riding in the front seat with his father-in-law when the automobile left the pavement and overturned. This suit is also in two counts and alleges that the automobile was being driven by Mrs. Hume’s then husband, and it alleges in general the same specific acts of negligence as were alleged in the former action. And, the first count in this action, evidently by reason of the New Mexico guest statute, alleges that the automobile overturned because of Mr. Robinson’s “heedlessness, and reckless disregard” of his former wife’s safety and rights. The second count alleges the specific acts as ordinary negligence. Aside from the fact that this action is against Mrs. Hume’s son-in-law rather than her deceased husband, the distinguishing and principal difference in the two actions is that in this one it is alleged that “The defendant, Delbert Lee Crane, the said Clarence Otis Robinson, Virginia Crane (the wife of the defendant), and the plaintiff were at the time on a joint enterprise and joint journey, and on their return trip to their home in Dexter, Missouri, from a visit with relatives in the State of California, and all of such negligence, heedlessness, and reckless disregard of the said Clarence Otis Robinson for the plaintiff’s rights and safety toare at the time and are now imputed to the defendant’’

In this action there were motions to dismiss the plaintiff’s petition, an alternative motion to strike the second count and a motion to require an election between counts, and again the circuit court has dismissed the plaintiff’s action. Thus the question presented, says the appellant plaintiff, is “Does the petition state a cause of action against the respondent, who was the owner and occupant of the car involved in the accident, and who was riding on the right side of the front seat thereof and by the side of the driver, Clarence Otis Robinson, all while on a joint enterprise?” In support of her appeal the appellant contends that the New Mexico guest statute applies only to third persons, not as between members of a joint enterprise, that in a joint enterprise co-adventurers owe one another the duty of exercising ordinary care, that the negligence of the driver, Mr. Robinson, is imputed to the defendant-owner of the automobile and he is therefore liable in damages to the plaintiff, who was also a member of the joint enterprise.

We are not concerned here with whether the petition alleges, as a matter of fact, a joint enterprise within the meaning of the law of New Mexico (Maloy v. Taylor, 86 Ariz. 356, 346 P.2d 1086), because the respondent assumes “that the parties involved were engaged in a joint enterprise at the time of the occurrence of the accident.” Furthermore, it is not necessary to a disposition of this appeal to consider the rationale of “joint enterprise,” this doctrine of vicarious tort liability, chiefly in the field of automobile negligence law, is of recent origin and, although established, at this stage in its development but imperfectly articulated. Prosser, Torts, Sec. 65, p. 363; 2 Harper & James, Torts, Secs. 26.13-26.14, pp. 1413-1418; 16 Cor. L.Q. 320; 15 Minn.L.R. 644. In actions involving joint enterprise guest statutes create an additional problem (4 Blashfield, Cyclopedia of Automobile Law, Sec. 2373, pp. 503-504), generally such statutes extinguish the liability of the owner-driver of a motor vehicle to gratuitous passengers injured through ordinary or simple negligence. But, in defining their applicability, guest statutes, including New Mexico’s, usually provide, either directly or indirectly, that they do not control when the passenger was carried for “payment,” “compensation,” or “hire.” In any event, “The relationship of joint adventurers between rider and driver may be regarded as inconsistent with the host-guest relationship, so that if the former is established it will follow that the rider’s recovery is not barred by the guest statutes.” Annotation 10 A.L.R.2d 1351, 1355; 5A Am.Jur., Sec. 521, p. 560.

In actions against third parties the doctrine of joint enterprise has often been employed defensively for the purpose of imputing a driver’s negligence to his co-adventurer-plaintiff, thereby establishing his contributory negligence. 5 Am.Jur., Sec. 496, p. 783; 65 C.J.S. Negligence § 158, p. 798. It has been held that the law of New Mexico is subject to this interpretation. Knudson v. Boren, 10 Cir., 261 F.2d 15. In the American Law Institute’s restatement the emphasis of the doctrine is upon contributory negligence. 2 Restatement, Torts, Sec. 491. In actions between coadventurers, by one member of the enterprise against a coadventurer, the problem has been whether the concomitant of imputed negligence applies to that situation and bars recovery. Most of these actions have been by a passenger against the driver, some of them in states with guest statutes. And in this situation, while there has not been complete unanimity of opinion, it is now generally recognized that one co-adventurer may maintain an action against another member of the enterprise for his negligence, particularly when the defendant is the driver-owner of the motor vehicle. “(T)he doctrine of imputed negligence is inapplicable to a member of a joint enterprise, or common adventurer, injured as the result of the negligence of the owner or operator of the automobile, while using it within the scope of the enterprise, where the action is between the parties to the enterprise.” Annotations 62 A.L.R. 440, 442; 85 A.L.R. 630, 632. The underlying explanation of these cases is the elemental principle of tort liability that one is responsible for his own negligence, that even in a joint enterprise one joint adventurer owes the personal duty of due care to the other members of the enterprise. McCombs v. Ellsberry (Fellis), 337 Mo. 491, 502, 85 S.W.2d 135, 140; Ottmann v. Incorporated Village of Rockville Centre, 275 N.Y. 270, 9 N.E.2d 862.

New Mexico adopted the Connecticut guest statute and is presumed to have adopted that state’s prior construction and interpretation of the act. Smith v. Meadows, 56 N.M. 242, 242 P.2d 1006; Maloy v. Taylor, supra. And Connecticut has held, in a tort action by a wife against her husband, that under its guest statute “there was no place for any imputation of his want of care to her, and the sole issues were those having to do with his negligence and her own contributory negligence. The doctrine of joint enterprise was wholly inapplicable to such a situation.” Bushnell v. Bushnell, 103 Conn. 583, 588, 131 A. 432, 434, 44 A.L.R. 785. And, in an action between sisters, a California court has held, under the New Mexico guest statute, that a member of a joint enterprise is a passenger, not a guest, and therefore “the case should have been tried on the theory that defendant was bound to use ordinary care in driving her automobile.” Harris v. Harfmann, 113 Cal.App.2d 615, 617, 248 P.2d 501, 502. In a recent New Mexico case the trial court found as a conclusion of law that the parties “were engaged in a joint venture for a family purpose” and that therefore the action was not governed by the guest statute. On appeal it was held that the evidence supported a finding of the plaintiff’s contributory negligence and that of course disposed of the appeal. The opinion is nevertheless a tacit recognition that the doctrine of imputed negligence is not applicable so as to bar an action between members of a joint enterprise. Perini v. Perini, 64 N.M. 79, 324 P.2d 779, 780.

Thus it is assumed, as the plaintiff urges, that under the law of New Mexico one co-adventurer may maintain an action against another member of the enterprise for his personal negligence, but that does not solve the problems of this appeal. The defendant, Mrs. Hume’s son-in-law, was not driving the automobile and it is not even claimed that he breached any duty to his mother-in-law or that he was guilty of a personal act of negligence. It is sought here, by invoking the doctrine of joint enterprise and because he was the owner and present in the automobile (annotations 50 A.L.R.2d 1281; 147 A.L.R. 960), to impute the negligence of her husband, who was driving, to the son-in-law and thereby vicariously establish his liability to the plaintiff. And, she is attempting to impute negligence and liability in circumstances which the New Mexico court and this court, in her prior suit, have said “did not create a substantive right of action.” Romero v. Romero, supra; Robinson v. Gaines, supra. If the theoretical basis of joint enterprise is agency and partnership there is a repugnant inconsistency in permitting one member of a joint venture to charge another member, who is personally without fault, with the misconduct of their mutual agent or partner. If the negligence of the plaintiff’s former husband is chargeable to the son-in-law, it should by the same reasoning be likewise chargeable to the plaintiff who was also a member of the joint enterprise — “it would be a strange situation to impute negligence to only one of two equally faultless parties in the same position.” Eagle Star Ins. Co. v. Bean, 9 Cir., 134 F.2d 755, 758. In these admitted circumstances the plaintiff does not have a cause of action against her coadventurer son-in-law, who is without personal fault, on the theory of imputing to him the negligence of her husband (against whom she had no cause of action) by reason of joint enterprise. Murphy v. Keating, 204 Minn. 269, 283 N.W. 389; 23 Minn.L.R. 666; Day v. Downey, 256 Ala. 587, 56 So.2d 656; Prosser, Torts, Sec. 65, p. 367. Accordingly the judgment is affirmed.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: LEEDY, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Marcus GOODWIN, Appellant.
    No. 48154.
    Supreme Court of Missouri, En Banc.
    Jan. 8, 1962.

      Lee Virtis Swinton, Leonard Hughes, Jr., Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., Ben Ely, Jr., Asst. Atty. Gen., for respondent.
   LEEDY, Judge.

Marcus Goodwin was convicted of murder in the first degree in having killed Ma-zie Lee, and he appeals from the judgment sentencing him to the extreme penalty as fixed by the verdict.

The trial was exceedingly brief, having begun and ended on the same day. That portion of the transcript embodying the evidence consists of about thirty-five pages, thus indicating the likelihood that not more than one hour was consumed in hearing the evidence. Such extreme brevity would naturally affect the error potential of the trial, and perhaps account, at least in part, for the want of more numerous assignments than the four appearing in his motion for new trial, as follows:

“1. Because the verdict is the result of bias and prejudice on the part of the jury.
“2. Because the State made improper arguments to the jury concerning a revolver when there was no evidence adduced from the witness concerning whether the revolver was loaded or unloaded.
“3. Because the State failed to introduce enough evidence of the corpus delicti that was independent on the extra judicial confession of the defendant.
“4. Because the attorney for the defendant was unable to get any cooperation from the defendant in preparing his defense, therefore, his trial was not one which accorded him of his constitutional rights.”

The evidence on the part of the state consisted of the testimony of three members of the Police Department of Kansas City, a deputy coroner of Jackson County, photographs of the premises in question, and the defendant’s written confession, an outline of which follows:

The defendant (age 36) and Mazie, although not married, had been living together as man and wife since 1954, meanwhile becoming the parents of three children. A few weeks prior to the date of the homicide (May 30, 1959) they had “split up,” and Mazie and the three children moved to 1612 East 26th to live. Shortly after 5 a. m., on the day in question a patrolman, Kenneth Simpson, “had occasion to investigate a call for information” at 1612 East 26th Street. On arrival there he found the glass in the front door had been broken. He entered, and passing through several rooms, went to the rear of the house and found Mazie (clad in nightgown and panties) lying on the kitchen floor. She had been shot and stabbed but she was conscious. There was blood around her. This witness saw two wounds, but did not know whether there were more. There was blood on the floor and on the refrigerator, and also in the kitchen sink or drainboard. A revolver and a butcher knife (with blood on it) were lying on the drain of the sink. Defendant was nowhere about the premises. An ambulance was called and Mazie was sent to General Hospital where at 9:15 o’clock that morning she was pronounced dead.

At 8:40 the same morning, William Frank Linhart, a police officer assigned to the homicide bureau, was dispatched to 3025 Mont-gall, a converted dwelling that had been divided into several apartments, and which were occupied, one of them by defendant. On arrival the witness found that an explosion (admittedly caused by defendant) had severely damaged the structure, the south wall in that portion occupied by defendant having been completely blown out, and the premises littered with debris. He found a pool of blood next to the gas heater and also found blood on the sink and in the kitchen leading to where the gas heater was situated, indicating “it was going from the stove to the sink * * * or from the sink to the stove, either way.” The witness then proceeded to General Hospital (to which place defendant had been removed shortly before the arrival of the witness at the scene of the explosion) where he observed defendant undergoing treatment, but because the patient was then suffering from what was diagnosed as first and second degree burns which covered about 20% of his body, only limited questioning of him by the witness was permitted. The witness testified that during the course of such questioning the defendant admitted he shot and stabbed Mazie, and thereafter attempted to take his life, first by cutting his wrists, and that being too slow, then by placing “himself on the floor next to the gas outlet, disconnecting the heater and placing it in his mouth and covering himself with a blanket and pillow,” and finally by lighting a match, causing the explosion; that defendant also stated that had the police arrived prior to the explosion he would have done some provocative act “or attempted something in order for a policeman to shoot him” — in other words, he wanted the police to take his life, and would have done something to make them shoot him. The witness did not know whether defendant was under sedation at the time he interrogated him at General Hospital, and did not recall whether he was bleeding.

At the time of the explosion there were other people in the apartment house — and, in particular, a man, woman and two children were in the unit adjoining defendant’s in which the explosion occurred.

Various photographs of the scene of the explosion at 3025 Montgall and of the premises, interior and exterior, at 1612 East 26th Street were offered and received in evidence without objection. Those of the deceased’s dead body were identified, hut excluded, and not received in evidence, nor exhibited to the jury.

The third police officer witness in the case, Detective Arthur Jenkins, identified a written statement dated June 25, 1959, and signed by defendant. When offered in evidence as “State’s Exhibit 15,” defendant’s counsel, after having interrogated the witness concerning the circumstances under which it was made (disclosing its voluntary nature), stated expressly that there was no objection to its admission in evidence, and it was accordingly received, and read to the jury. Omitting caption, signature, jurat, and such matters as his name, place of birth, residence, employer, and the fact that he had been advised of his constitutional rights, and other portions not relevant to the one matter (hereinafter discussed) which prompts our making such an extended outline of the facts, the statement proceeds in this way:

“Q Have you been having trouble with Mazie Lee since you have been separated ?
“A Yes, one night about six weeks ago I got drunk at the Cavalier Hotel where I have been employed. I talked to Mazie Lee over the telephone and I wanted to go by and see the children and she told me no — I couldn’t see. them. First she told me to come on over, and when I got over to her house on 26th St. she wouldn’t let me in, and I jumped through the living room window and went in anyway.
“Q Were you arrested at this time ? A Yes.
“Q Were you taken to Police Court ?
“A No — she told the policeman I was drunk and she wanted them to take me out of there. They took me to jail ' and held me over night and released me the next day.
“Q When did Mazie Lee have you arrested again?
“A I believe it was on Wednesday night, May 27th, she came down and got a warrant for me for disturbing the peace.
“Q. Were you then taken to Police Court ?
“A Yes — I went to court on Friday morning, May 29th, where I was fined $25.00 for disturbing the peace. I couldn’t pay the $25.00 fine, and I appealed the case to Circuit Court.
“Q Were you out on bond in this, disturbing the peace case ?
“A Yes.
“Q When is the next time you saw Mazie Lee?
“A I don’t remember what time it was but it was sometime early Saturday morning, May 30th.
“Q Where was it you saw her that morning?
“A At her home I guess.
“Q. Do you recall what happened?
“A I don’t remember what happened but things came back to me when.I was going to General Hospital in an. ambulance after the explosion.
“Q What explosion was this?
“A The house at 3025 Montgall where I live.
“Q Now, what do you recall happened, while you were going to the hospital ?
“A While I was laying down in the ambulance, the first thing I thought about was myself. I remember cutting my two wrists and laid down on the floor at 3025 Montgall, and pulled the hose off the gas heater and turned the gas on and swallowed gas about three or four hours. I hadn’t died then so I took a match and lit it and tried to blow myself up.
“Q Did an explosion occur at 3025 Montgall as the result of your lighting the match?
“A Yes — it blowed the whole wall out and blowed me out with it.
“Q When did you recall or remember being at Mazie Lee’s home at 1612 E. 26th St. ?
“A After I got to the hospital.
“Q Do you recall what happened?
“A Not exactly word for word, the the first thing that came to me was that I had shot my wife, Mazie Lee.
“Q Do you recall what happened?
“A Like I told you — I don’t remember what time I left my house and went to her place. I don’t recall how I got there. It all seemed like a dream to me while I was at the hospital.
“Q Do you remember being at 1612 E. 26th St. ?
“A It all came to me after the explosion, that I had shot Mazie Lee.
“Q How did you get in the house at 1612 E. 26th St.?
“A I broke the glass out of the front door or front window, and entered.
“Q Where was Mazie Lee then?
“A She was in the kitchen.
“Q Did you have the gun with you when you broke in the door?
“A Yes.
“Q What happened after you went in the kitchen where Mazie was ?
“A I must have shot her.
“Q Did you also stab her? A Yes.”

Detective James also produced the revolver and butcher knife which defendant (in the foregoing statement) had identified as the weapons with which he shot and stabbed Mazie. Both were offered and received in evidence.

The deputy coroner described five separate bullet wounds found on various parts of Mazie’s body (one in the right lumbar region and one in the left lumbar region, “both on a line parallel with the transpy-loric plane of the body”; one posteriorly opposite the first lumbar vertebra; one in the left scapular region which did not reach into the chest cavity; and one on the outer side of the left gluteal region in the fleshy part of the buttocks), and one stab wound which entered the right pleural cavity, fracturing the twelfth rib. He gave as the cause of death “shock and internal hemorrhage resulting from gunshot wounds in the abdomen.”

The theory of insanity as a defense was attempted to be injected into the case in defendant’s opening statement to the jury (made immediately following that of the prosecutor), and in which it was also indicated that the evidence to be relied on would be that put on by the State. Said opening statement is, in its entirety, as follows:

“MR. SWINTON: I represent the defendant here in this matter. Our evidence in this case will be primarily what the State will put on, the State’s evidence. Now, I am making this statement to you because I want you to listen to the State’s evidence thoroughly, because the evidence will show that the defendant also made an attempt to take his own life. He made several attempts to take his own life. By doing so, we feel that this man was insane, and that will be his defense. Therefore, I am requesting again that you listen to the State’s evidence very thoroughly. Thank you.”

As thus forecast earlier in the trial, when the State’s evidence was closed, defendant put on the stand as his own witness Officer Linhart, who merely reiterated his testimony given on behalf of the State with respect to what defendant had told him concerning his several attempts to commit suicide. The only other witness called on defendant’s behalf was defendant himself. He disclaimed any knowledge or recollection of the homicide, or of his attempted suicide, or of having made the oral statements attributed to him by Officer Linhart, nor of the written statement of June 25. His memory was practically blank except that he did admit he had served an indeterminate term (5 years to life) in San Quentin prison.

Because of the severity of the punishment and the general tenor of the proceedings and trial, and notwithstanding the fact that the motion for new trial does not challenge the sufficiency of the evidence to support the verdict, we have concluded that the court should sua sponte exercise the discretionary power vested in it under Rule 27.20(c), V.A.M.R., by examining into the only question that could conceivably arise on the evidence (and then only upon cursory or superficial examination of it), and that is whether the proof was sufficient to submit the element of deliberation, and hence the hypothesis of murder in the first degree.

The element of deliberation marks the fundamental distinction between murder in the first degree and murder in the second degree, being an essential element of the former, and when lacking the crime is murder in the second degree. State v. Liolios, 285 Mo. 1, 225 S.W. 941; State v. Eaton, (Mo.) 154 S.W.2d 767, 768-769. “The general rule is that a presumption of murder in the second degree arises from an intentional killing of a human being by another where a deadly weapon is used by him at a vital part of the body, absent proof of other facts tending to show deliberation to raise such killing to first degree murder, or to show want of premeditation and malice to reduce the killing to manslaughter, or to show that such killing wras excusable or justifiable.” State v. Snow, 293 Mo. 143, 149, 238 S.W. 1069, 1071. See, also, State v. Kyles, 247 Mo. 640, 647, 153 S.W. 1047, 1050; State v. Harris, (Mo.) 177 S.W. 362, 364; State v. Eason, 322 Mo. 1239, 1250, 18 S.W.2d 71, 76; State v. McCracken, 341 Mo. 697, 701, 108 S.W.2d 372, 374. But it is equally well established that the deliberation and premeditation necessary to constitute murder in the first degree may be inferred from the circumstances of the homicide. State v. Johnson, (banc) 362 Mo. 833, 838, 245 S.W.2d 43, 46; State v. Kenyon, 343 Mo. 1168, 1177, 126 S.W.2d 245, 250; State v. Cade, 326 Mo. 1132, 1137, 34 S.W.2d 82, 83.

Because the case was not submitted on any such theory, we do not pause to consider the interesting possibility of whether (if defendant’s forcible entry into Mazie’s dwelling was with the intent to commit a felony therein — so as to constitute the offense of burglary in the first degree, section 560.040, RSMo and V.A.M.S.), the case would be within our felony-murder statute, section 559.010, RSMo and V.A.M.S., which provides, in pertinent part, that “[E]very homicide which shall be committed in the perpetration or attempt to perpetrate any * ⅝ * burglary * * * shall be deemed murder in the first degree.” In passing, it may be added that we have found no case of homicide arising out of a burglary where the burglarious entry was with the intent to commit that particular homicide.

We are of the opinion that the following circumstances are sufficient to take the case out of, and make inapplicable the rule mentioned above under which a presumption of second degree murder attaches : First, and of prime significance, is the proof that at a very early morning hour (five o’clock) defendant forcibly broke into and entered deceased’s dwelling armed at the time with the revolver with which the homicide was admittedly committed; the recent hostility between the parties, incidents of which included their separation, and deceased having twice caused defendant to be arrested and detained in jail — the last time a day or so prior to the homicide; and the manner of accomplishing the killing, that is, by the infliction of five bullet wounds and one stab wound. These facts and circumstances are sufficient to support, or from which to draw the inference that the killing was deliberate and premeditated. The forcible entry bespeaks preparation, going to deliberation. Indeed, the unlawful breaking in aspect of the case approximates or is comparable to that deliberation evinced by lying in wait, then assaulting and killing the victim. Under this view, which is warranted by the record, the act was not impulsive or sudden, but one of a deliberate and premeditated nature, and hence the evidence supports the verdict and judgment.

Defendant has filed no brief, so we look to the motion for a new trial for his assignments of error (as hereinabove quoted). The first of such grounds (“Because the verdict is the result of bias and prejudice on the part of the jury”) is, obviously, and under repeated holdings, too general to preserve anything for review. Rule 27.20(a); State v. Mayabb, (Mo.) 316 S.W.2d 609, 610; State v. Hagerman, 361 Mo. 994, 238 S.W.2d 327, 329; State v. McMillian, (Mo.) 338 S.W.2d 838, 845.

The second ground likewise lacks the specificity required under Rule 27.20 (a), but in any event no objection was made at the trial to any argument to which the assignment could possibly apply, and this, too, would be fatal, unless the argument was so glaringly offensive and prejudicial that the court should have intervened and stopped it without objection on defendant’s part, but we find nothing in the record to indicate argument of that character was made by the prosecutor.

The third assignment is also so indefinite and lacking in particularity as to warrant our ignoring it; but again, for the same reasons that prompted us to examine into the sufficiency of the proof of deliberation, as well as to delve into the matter last above discussed, we shall undertake to interpret the meaning of this assignment, and ascertain the nature of the complaint. If it means that the court erred in admitting the confession for the reason that independently of it the corpus delicti was not sufficiently proved (that is, to justify its admission), it is to be remembered that, when offered, defendant’s counsel stated that there was no objection to its introduction, and it was accordingly received, and, this being so, the defendant may not now claim error in that ruling. On the other hand, if the assignment means either that the corpus delicti must be proved wholly independently of the confession, or that the evidence was insufficient whereon to submit the case to the jury because there was no sufficient corroboration of the confession to warrant a conviction, such contentions are untenable.

As was said in State v. McQuinn, 361 Mo. 631, 235 S.W.2d 396, 397: “In murder, the corpus delicti consists of two elements: (1) The death of the person alleged to have been murdered, and (2) the criminal agency of someone other than deceased causing the death. State v. Lyle, 353 Mo. 386, 390, 182 S.W.2d 530, 532; State v. Payne, 331 Mo. 996, 1003, 56 S.W.2d 116, 118; State v. Meidle, Mo.Sup., 202 S.W.2d 79, 80. It is undoubtedly the rule that confessions of a crime not made in open court or before a committing magistrate and without proof aliunde that a ■crime has been committed will not sustain a conviction. However, it is equally well established that full proof of the corpus delicti independent of the defendant’s extrajudicial confessions is not required. State v. Kauffman, 329 Mo. 813, 46 S.W.2d 843; State v. Skibiski, 245 Mo. 459, 150 S.W. 1038; State v. McGuire, 327 Mo. 1176, 39 S.W.2d 523. As said in State v. Thompson, 333 Mo. 1069, 1080, 64 S.W.2d 277, 282, ‘On the contrary, what seemed to be ■only slight corroborating facts have been held sufficient. State v. McGuire, 327 Mo. 1176, 39 S.W.2d 523.’

“The Skibiski case, supra (which is a leading case), after declaring that full proof of the corpus delicti independent of the confession is not required, continues thus, 150 S.W. loe. cit. 1039: ‘If there is ■evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with circumstances related in the confession, both the circumstances and the confession may be considered in determining whether the corpus delicti is sufficiently proved in a given case. (Citing cases.)’ And in State v. Morro, 313 Mo. 98, 108, 281 S.W. 720, 722, the rule was put this way: ‘If there is evidence of corroborating circumstances which tends to prove the crime and corresponds with circumstances related in his confession, both the circumstances and the confession may be considered in determining whether the corpus delicti is sufficiently proved. If a confession is made which enables the state to discover corroborating evidence of the particular crime confessed, the corroborating evidence need not be sufficient, independent of the confession, to establish complete proof that the crime is committed. (Citing cases.)’ ” See, also, State v. Falbo, (Mo.) 333 S.W.2d 279.

Grounds of a motion for new trial do not prove themselves, and the fourth assignment of defendant’s motion is no exception to this rule. We have then only the bare assertion of defendant’s failure to cooperate with his counsel in the preparation of the case for trial, and, of course, this presents nothing for review.

We have examined those portions of the record required by Rule 28.02 to be reviewed whether error be assigned or not, and find no reversible error therein. Because of inept and careless draftsmanship, the form of the information is not to be regarded as a model or commended, although it is in substantially the same form as that in State v. Haynes, (Mo.) 329 S.W.2d 640, which, after verdict, and in the absence of attack before trial, was held sufficient. The only difference in the Haynes information and the one at bar is that here the language of the charging portion is that defendant did “make an assault in and upon Mazie Lee with a deadly and dangerous weapon, to-wit, a gun and knife, a gun loaded with gunpowder and leaden balls, then and there inflicting” the mortal wound, etc. In other respects the information is subject to the same objections as were leveled at the Haynes information. We conclude, for the reasons stated in the Haynes case, that after verdict, and in the absence of a motion or request for a bill of particulars under Rule 24.03, the instant information is sufficient.

It is difficult to see how it could be thought there was any probative evidence of insanity, but the court, nevertheless, (no doubt out of an abundance of caution) instructed on insanity as a defense. And it would seem that it was out of a desire to protect every possible right of the defendant that the court gave an instruction on manslaughter, and (notwithstanding defendant’s confession) one on circumstantial evidence. It will be seen, therefore, that defendant has received more than his due as regards the fairness of his trial below, as he has here in the matter of appellate review of his conviction. The judgment is affirmed, and under Rule 28.14 it is directed that the sentence pronounced be executed.

All concur.

Date of execution set for Friday, February 23, 1962.


author: COIL, Commissioner.

text:
    Dagmar READEY, Edward L. Glauert, Hiram Schmedel, Chris J. Muckerman, Henry J. Johnson, Robert Burkham, Mignon E. Dietrich, and Jack Welch, Jr., Respondents, v. ST. LOUIS COUNTY WATER COMPANY, a Corporation, Defendant, and Thomas C. Dunne, Maurice M. Abramson, John J. Dowling, Richard A. Hetlage, Russell A. Grantham, George E. Bohrer, John F. Molloy, Members of the County Council of the County of St. Louis, Missouri, Edward A. Walsh, County Clerk of St. Louis County, Missouri, Dr. C. Howe Eller, Acting Health Commissioner of the County of St. Louis, Missouri, and Successors in Office, Appellants.
    No. 48453.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1961.
    Motion for Rehearing or to Transfer to Court En Banc Denied Jan. 8, 1962.

      William E. Gallagher, County Counselor of St. Louis County, Clayton, Richard E. Crowe, Warren H. Ritchhart, Asst. County Counselors, for appellants.
    Louis L. Hicks, Clayton, for plaintiffs-respondents.
    Edgar M. Eagan, Jefferson City, amicus curiae for Missouri State Dental Ass’n.
    Walter A. Raymond, Kansas City, amicus curiae pro se.
   COIL, Commissioner.

In June 1959 the St. Louis County Council enacted an ordinance which directed the St. Louis County Water Company to introduce a sufficient quantity of the fluoride ion into the water it furnished county consumers to maintain throughout the distribution system a fluoride concentration of approximately one part fluoride per million gallons of water, and which directed the Water Company to make certain tests and keep certain records, and which directed the county health commissioner to make periodic reports to the council on the fluoridation of the water supply and to arrange for surveys and research into the beneficial effect of the program.

Respondents are eight resident taxpayers •of St. Louis County and are consumers of water distributed by the Water Company, some of whom resided in various municipalities within the county. They brought an action against the Water Company, the then members of the county council, the county clerk, and the acting county health commissioner, to enjoin the enforcement of the ordinance for the averred reason that it was invalid in that it violated stated provisions of the federal and Missouri Constitutions and provisions of specified state laws.

At the close of respondents’ evidence the trial chancellor sustained Water Company’s motion to dismiss and there has been no appeal from the ensuing judgment of dismissal. At the close of all the evidence the trial chancellor enjoined the remaining defendants below from enforcing the ordinance for the stated reason that it was void in that it violated provisions of the state and federal constitutions in the respects to be hereinafter noted.

Those defendants have appealed and contend that the trial court erred for the reason that the ordinance is a valid exercise of the county council’s police power to promote the public health. Respondents here seek to support the trial court’s ruling for the stated reasons that the ordinance is unconstitutional in that it violates the Fourteenth Amendment to the Constitution of the United States and Article I, Section 10 of the Missouri Constitution, V.A.M.S., in that it unduly infringes their and other county residents’ freedom of choice in matters relating to bodily care and health by compelling them to drink fluoridated water against their wills; that the ordinance violates the First Amendment to the Constitution of the United States in that it subjects Christian Scientists living in St. Louis County to forced medication contrary to their religious beliefs; that the ordinance violates Article VI, Section 18(c) of the Constitution of Missouri in that it applies to the entire county, including the county municipalities, and therefore its enactment was beyond the power of the county council; and that the enforcement of the ordinance would violate Missouri statutes relating to the adulteration and misbranding of nonalcoholic drinks.

Inasmuch as the validity of the contention that the ordinance violates Article VI, Section 18(c) of the Missouri Constitution depends on the question whether the council had the power and authority to have enacted any ordinance purporting to deal with matters relating to the public health of persons residing within county municipalities, and inasmuch as an affirmance of the trial court’s ruling on that question would be dispositive of the case, we shall first consider that contention.

The ordinance in question contemplates, and its enforcement would involve, the addition of a quantity of the fluoride ion to all of the water leaving Water Company’s purification plant and such water is sold to consumer residents of St. Louis County who live both within and without incorporated areas of the county, and the water so furnished is, for all practical purposes, the only water available to county residents.

Article VI, Sections 18 through 20, 1945 Missouri Constitution, authorizes special charters for the government of certain counties and authorizes the inclusion of specified provisions in those charters. Section 18(c) is: “The charter may provide for the vesting and exercise of legislative power pertaining to public health, police and traffic, building construction, and planning and zoning, in the part of the county outside incorporated cities; and it may provide, or authorize its governing body to provide, the terms upon which the county shall perform any of the services and functions of any municipality, or political subdivision in the county, except school districts, when accepted by vote of a majority of the qualified electors voting thereon in the municipality or subdivision, which acceptance may be revoked by like vote.” 2t V.A.M.S.

Pursuant to that constitutional authorization, St. Louis County’s Home Rule Charter provided in Article III, Section 22(20) that the council should have the power by ordinance “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, and on such other subjects 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.” And Section 22(19) provided that the council should have power by ordinance “To provide the terms upon which the County shall perform any of the services and functions of any municipality or political subdivision in the County, except school districts, when accepted by a vote of a majority of the qualified electors voting thereon in such municipality or subdivision, which acceptance may be revoked by a like vote; and to cooperate and contract with the municipalities or political subdivisions in the County as otherwise authorized by this charter and by law.”

It was the opinion of the trial chancellor and it is the contention of respondents here that the ordinance in question violates the constitutional and charter provisions above set forth for the reason that the county council’s power to enact public health ordinances was limited to the enactment of ordinances affecting only those areas outside incorporated cities. It is apparent that respondents’ position is correct if the council’s power in the premises is derived solely from Article VI, Section 18(c) of the Constitution and Article III, Section 22(20) of the County Charter. The fact is, however, that the county council’s power in certain matters, including the enactment of ordinances which tend to enhance the public health, is not limited to the power conferred by Article VI, Section 18(c) of the Constitution and set forth in Article III, Section 22(20) of the County Charter. On the contrary, St. Louis County may also exercise the powers pertaining to the public health validly conferred by the state upon counties of the first class. Article IV, Section 37 of the Missouri Constitution declares that “The health and general welfare of the people are matters of primary public concern” and the general assembly shall establish a department of public health and welfare and may grant power with respect thereto to counties, cities, or other political subdivisions of the state. The legislature, as directed, established a department of public health and welfare and, among others, enacted Section 192.300 RSMo 1959 and 12 V.A.M.S., which provides in part: “The county courts of the several counties of class one are hereby empowered and permitted to make and promulgate such rules, regulations or ordinances as will tend to enhance the public health and prevent the entrance of infectious, contagious, communicable or dangerous diseases into such county; provided such rules, regulations and ordinances shall not be in conflict with any rules or regulations authorized and made by the division of health in accordance with this chapter.”

Article I, Section 2 of the County Charter provides: “The County shall have all the powers now or hereafter vested by the Constitution and laws of Missouri in county courts, county offices, counties of the first class, counties having the population or assessed valuation of taxable property of St. Louis County, Missouri, and counties of any other class in which St. Louis County may hereafter be includable, and all the powers provided in this Charter, and all other powers that are necessarily implied under the powers so granted.”

It appears, therefore, that by virtue of the constitutional, statutory, and charter provisions last above set forth, the county council was and is authorized to enact ordinances tending to enhance the health of all the residents of St. Louis County, irrespective of whether they also reside within a municipality. See State ex rel. Shepley v. Gamble, Mo., 280 S.W.2d 656.

Assuming, then, for the present that the ordinance in question is one which was intended to and which does tend to enhance the public health, a question we shall later discuss, we hold that the county council had the authority and the power to enact such an ordinance applicable county-wide and, consequently, that the ordinance does not violate Article VI, Section 18(c) of the Missouri Constitution or Article III, Section 22(20) of the St. Louis County Charter.

It should be here noted that there is no claim or contention that in enacting the ordinance the county council acted arbitrarily or without sufficient investigation or upon insufficient knowledge; nor is there any contention that there was any procedural irregularity with respect to the enactment of the ordinance in question. Even though there is no showing in the present record as to what information the council had upon which it based the exercise of its legislative power in enacting the ordinance, in the absence of any contention as to insufficiency of information and in the absence of any claim of procedural irregularity, we should and do assume that the council had the information and knowledge which the evidence in the present record affords.

As we have heretofore indicated, there is no dispute about the fact that, generally speaking, a resident of St. Louis County, whether within or without a municipality, must use water supplied by the Water Company (although the evidence does show that the City of Kirkwood, a municipality within the county, had been fluoridating its water for a period of two years prior to the trial, but the record does not show whether Kirkwood^s water is from some other source or whether that city further treats water which it purchases from the Water Company). Further, there is no dispute about the fact that the Water Company obtains the water it supplies from the Missouri River and that such water as it is taken from the river contains an average of .5 part of the fluoride ion per million gallons of water and that such fluoride content is not removed from the water but remains in it and, thus, that the Water Company, irrespective of the ordinance, furnishes water fluoridated to the level of one-half part fluoride to each one million gallons of water; so that the effect of the ordinance is to require the Water Company only to supplement the existing concentration of fluoride by adding one-half part per million gallons in order that there will be a total of one part fluoride per million gallons of water.

It appears also that there is no dispute about the facts that the fluoride ion in water acts upon the individual who drinks the water rather than upon the water as such as a purifying agent and, consequently, the ordinance requirement for an additional amount of the fluoride ion is for the purpose of affecting the dental health of each individual who consumes the fluoridated water; and that dental caries or tooth decay is not a contagious or communicable disease and cannot produce an epidemic.

Respondents adduced evidence, including the opinions of apparently well-qualified experts, tending to establish the proposition that the ingestion of water containing any fluoride is harmful to the individual consuming it and that water containing one part fluoride to a million gallons of water is harmful in many ways. That evidence tended to show that ten to forty per cent of children between the ages of 5 and 13 who consume water fluoridated one part to a million will have disfigured teeth, including mottled or discolored enamel; that older people consuming such water will suffer from gastrointestinal disturbances including nausea, vomiting, constipation, and diarrhea; that they will also sustain damage to the liver and kidneys and, under some circumstances, to other vital organs such as the aorta, and suffer abnormalities in bone growth and hone structure; that pregnant women consuming such water will sustain injury and bear children whose teeth will show later damage; that certain people, as a result of drinking such water, develop arthritic changes in the lower spine, neuro-muscular changes in the arms and legs, partial palsy of the arms and legs, abnormal reflexes, severe headaches, and extreme weakness.

Respondents’ evidence tended to show further that fluorine is not an essential element of the human body and that all chemicals bearing the fluoride ion are insidious poisons and are cumulative in the human body; that due to the fact that different people drink different amounts of water and the same person consumes different amounts of water depending upon the time of year and for other reasons, it is difficult if not impossible to control the amount of the fluoride ion ingested by a particular individual when a specified amount is introduced into a public water supply; and that there are methods other than the addition of the fluoride ion to the public water supply by which fluorine may be applied to the teeth, such as an application by a dentist directly on the teeth or by fluoridating an individual user’s water supply by dissolving tablets therein.

Appellants adduced evidence, including the opinions of apparently well-qualified experts, tending to establish the proposition that fluoridation of water as proposed by the ordinance in question would result in harm to no one but, on the contrary, would be highly beneficial to the residents of St. Louis County in that it would reduce dental decay in children up to 14 years of age by as much as sixty-five per cent by means of hardening the enamel on their teeth, and that this same reduction in decay would accrue to older age groups provided the members of those groups had drunk the fluoridated water from birth. Appellants’ evidence substantially supported the conclusions: that there is phenomenal agreement among professional and scientific groups in the United States and in the world that fluoridation of public water supplies in the amount provided by the ordinance in question is of great significance in terms of general health, in producing a dental caries resistant enamel on teeth; that “Dental decay is recognized as man’s most wide-spread chronic disease. Few persons escape. No social stratum or age group is immune. A decayed tooth never heals by itself, by prescription or by advice. About 97,000,000 people in the United States have decayed teeth requiring treatment”; that fluoridation of water is safe, practicable, not unduly expensive as a health measure, and is efficacious. Appellants’ evidence tended to show further that the harmful effects suggested by plaintiffs’ evidence would not occur and the testimony of one of appellants’ witnesses was that he practiced dentistry in Kirkwood (a municipality in St. Louis County) where the water supply had been fluoridated since January 1, 1958, and that he had observed no harmful effects; that dental fluorosis or mottling of the enamel on teeth occurs to an appreciable extent only when there is an excessive amount of fluoride in the water, that is, in excess of two parts fluoride per million gallons of water.

The evidence also established that fluoridation of public water supplies to the extent provided in the ordinance had been endorsed by the St. Louis Dental Association, the Missouri State Dental Association, the American Dental Association, the American College of Dentists, the Missouri Public Health Association, the American Public Health Association, the Missouri State Department of Health, the United States Department of Health, Education and Welfare, the St. Louis Medical Society, the Missouri State Medical Association, the American Medical Association, and the St. Louis County Health Department; that there are twenty-five communities in Missouri now fluoridating their water supplies to approximately one part per million; that at trial time there were 1,134,000 people in Missouri drinking artificially fluoridated water to the extent of one part per million gallons, and there were 109,000 people drinking naturally fluoridated water in various amounts; for example, in Columbia, Missouri, the natural fluoride content is 1.32 parts fluoride per million gallons of water; that Army, Navy, and Air Force installations where children are in residence furnish fluoridated water.

Appellants’ evidence tended to show further that water fluoridated as the ordinance required is nonpoisonous; that toxicity will occur only at concentrations 20 to 50 times as great as that proposed by the ordinance; that while applying fluorine directly to the teeth is satisfactory for each individual who receives the treatment, it is not a practical method because there are not enough dentists to effectively accomplish the task; that dental decay occurs at a rate six per cent faster than available dentists can repair it; that fluoridation in the manner proposed is not mass medication but is, in effect, prevention rather than treatment; that chlorine is added to water to cut down bacterial contamination in order to reduce the occurrence of infectious disease, such as typhoid fever, and fluoride is added to prevent or deter the progress of a widespread dental disorder and thereby preserve the dental health of the people who consume the fluoridated water.

It is apparent from the foregoing résumé of the evidence that the question whether over-all harm or over-all benefit will result to individuals who consume water containing the fluoride ion in a concentration of one part fluoride to one million gallons of water is highly controversial and that there is substantial evidence to support a conclusion either way. Our province, in the first instance, is to determine whether the ordinance in question bears a reasonable relation to public health and is thereby fairly referable to the county’s police power. It appears to us that decisive of that determination is the fact that the record contains substantial evidence from which the county council reasonably could have found and concluded that dental decay is a widespread and serious disease affecting the dental health of all the people of St. Louis County; that a requirement that the fluoride content of water consumed by St. Louis County residents be supplemented up to one part per million gallons would effectively and extensively decrease tooth decay, particularly in children, but with benefit to all; and that such a method would constitute a safe, practicable, relatively inexpensive, and efficacious public health measure.

We have no doubt, therefore, that the ordinance does bear a reasonable relation to public health and that its provisions are designed to and reasonably will tend to enhance the public health and, therefore, that the action of the St. Louis County Council, in enacting the ordinance in question, was an exercise of the power conferred by Section 192.300, supra.

We next consider whether the ordinance unduly invades or infringes rights guaranteed by the state and federal constitutions. Respondents contend that the ordinance is unconstitutional because it prohibits certain county residents from practicing their religious beliefs. That question is not before us for decision for the reasons which follow. There was no averment by plaintiffs in any pleading claiming any such violation, either directly or by inference. There was no averment that they or any of them are members or represent any members of a religious body or those who hold particular beliefs or practice their beliefs in a particular manner. Nor was there any such contention throughout the trial. There was no evidence offered or adduced pertaining to the tenets or practices of any particular religious body or group of people, nor was there evidence that members of any particular religious body resided in St. Louis County. There was no finding of fact or conclusion of law with respect to the contention now made and thus, of course, no part of the judgment was based upon any such finding or conclusion.

After the present appeal was pending in this court, leave was granted an attorney of the Missouri Bar to file a brief herein as amicus curiae, on the averred ground that the case was one which affected the interest and welfare of all the people of Missouri, including those residing in large metropolitan areas. The brief of amicus curiae contends, and that contention is specifically adopted by and included by reference as part of respondents’ brief, that the ordinance in question is unconstitutional because it subjects Christian Scientists in St. Louis County to forced medication against their religious beliefs and thereby deprives them of their constitutional right under the First Amendment to the United States Constitution. It is suggested by inference that we may take judicial notice of the fact that it is a religious belief of Christian Scientists that no material applications for relief of disease should be employed. But if, in the public interest, we should wish to resolve the question posed in amicus’ brief, even though the constitutional question was not raised below nor preserved for appellate review, and even if we should take judicial notice that the belief suggested by counsel is a religious belief of Christian Scientists, still we should not know whether, nor could we assume that, it would violate that belief for one to consume water which theretofore had contained one-half part fluoride, simply because another one-half part had been added. Furthermore, if we should assume that the fluoride ion in water constitutes medication as to the individual and if we should further assume that the ingestion of that medication violates a religious belief of any county resident, then it must follow that forced medication now exists and that the enforcement of the ordinance in question would not change the situation in that respect. Be that as it may, however, the fact is that we may not on this record decide whether anyone’s religious beliefs or anyone’s freedom to practice his religious beliefs would be unduly and unlawfully infringed by the enforcement of the ordinance.

Respondents and amicus curiae state their specific contention with respect to the claimed violation of the Fourteenth Amendment to the United States Constitution and of Section 10 of Article I of the Missouri Constitution in this manner: The ordinance is unconstitutional and void because it deprives plaintiffs and other residents of St. Louis County of their liberty in that it denies them freedom of choice in matters relating to bodily care and health by compelling them to drink water containing “the poisonous drug fluoride ion” against their wills when not justified by “pressure of great dangers” to the public health.

Inasmuch as there is before us no question involving the violation of respondents’ or others’ freedom to believe and practice the tenets of their religious beliefs or involving the violation of any other First Amendment right, it is apparent that in so far as the federal constitution is concerned we are here dealing with the due process clause of the Fourteenth Amendment as applied “for its own sake” and not with the due process clause as an instrument for transmitting any specific prohibition of the First Amendment. That is to say, we are not here dealing with a freedom which has been said to occupy a “preferred place ⅛ * * in our scheme,” i. e., those “freedoms secured by the First Amendment.” "West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 87 L.Ed. 1628; Thomas v. Collins, 323 U.S. 516, 529, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430.

Respondents point out that the “word '‘liberty’ contained in that amendment [Fourteenth] embraces not only the right of a person to be free from physical restraint, but the right to be free in the enjoyment of .all his faculties as well.” (Bracketed insert ours.) Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S.Ct. 444, 446, 80 L.Ed. 660. They concede that their freedom to choose whether to consume water containing the fluoride ion as a preventative to deter the decay of an individual’s teeth is subject to regulation by law but contend that one’s constitutionally protected freedom may be lawfully infringed only when such is necessary to insure the equal enjoyment of the same right or freedom by others or “under the pressures of great dangers.” They rely upon language contained in the memorandum opinion of the trial chancellor who, in turn, stated those “tests” on the authority of Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643. In that case the court upheld the validity of a state compulsory vaccination law. It is true that the court at one place in its opinion quoted this from another case (197 U.S. 26, 27, 25 S.Ct. 361): “ ‘The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the .governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.’ ” And at another place in the opinion (197 U.S. 29, 25 S.Ct. 362) the court, in pointing out that it was “the duty of the constituted authorities primarily to keep in view the welfare, comfort, and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few,” pointed out further that to conserve the safety of members of society, “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such.restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” But the court in the Jacobson case in the course of its opinion also said: “If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those obj ects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution. * * *

“Whatever may be thought of the expediency of this statute, it cannot be affirmed to be, beyond question, in palpable conflict with the Constitution.” 197 U.S. 31, 25 S. Ct. 363.

In our view the Jacobson case does not support the proposition that individual freedom of choice pertaining to a matter affecting the public health, such as the freedom of choice here asserted, may be validly .restricted or infringed only where the restraint imposed is necessary in order to insure equal enjoyment of the same freedom by others or under the “pressure of great dangers”; nor does that case stand for the proposition that only when necessary to protect the individual as well as the members of the general public from the danger of a communicable or contagious disease may a legislative body validly enact an ordinance interfering with the freedom of choice of the individual as to a matter affecting the public health.

The United States Supreme Court has made it clear that even in cases involving First Amendment prohibitions which occupy an exalted and preferred position in our scheme of things it will not indiscriminately apply the “clear and present danger” test stated in Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 249, 63 L.Ed. 470. That court adopted the interpretation of that phrase suggested by Chief Judge Learned Hand. In Dennis v. United States, 341 U.S. 494, 510, 71 S.Ct. 857, 868, 95 L.Ed. 1137, the court, speaking of the phrase “clear and present danger,” said: “Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as follows: ‘In each case [courts] must ask whether the gravity of the “evil,” discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.’ [United States v. Dennis, 2 Cir.] 183 F.2d at 212. We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words.” And see Baer v. City of Bend, 206 Ore. 221, 292 P.2d 134, 139, 140, where the Oregon Supreme Court in a well-reasoned opinion held that the effect of the fluoridation of a public water supply did not infringe the consumer’s constitutional guarantee of religious liberty.

It seems to us that the language of the court in West Coast Hotel Company v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, is apropos in determining whether the due process clause of the Fourteenth Amendment has been violated under the facts here. There the court, in dealing-with the question whether there had been a deprivation of freedom to contract by the enactment of a minimum wage regulation for women, said at page 391: “What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law.. In prohibiting that deprivation the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints, of due process, and regulation which is reasonable in relation to its subject and is-adopted in the interests of the community is due process.” (Our italics.)

Missouri cases hold that Article I, Section 10 of our Constitution (“That no person shall be deprived of life, liberty or-property without due process of law”) is. not violated by an ordinance which, as we-have held the one in question to be, is fairly referable to the police power of the enacting body and which is shown to have been-enacted for the protection and enhancement of the public health and general welfare of' the inhabitants of the area in question, unless its provisions are unreasonable and the burden is upon the one asserting the ordinance’s invalidity to overcome the legal' presumption of validity which attends the ordinance. Passler v. Johnson, Mo., 304 S.W.2d 903, 908 [3-7].

Respondents’ evidence tended to show ■ that the ingestion of any amount of fluoride ion is harmful, that consuming water which . contains any amount of the fluoride ion constitutes medication, and that there is no difference between the fluoride ion existing ini. the Missouri River water as it is now dis- - tributed by the Water Company and the in- ■ 'Organic fluoride ion which would be placed in the water under the ordinance require■ment. Thus it is clear that this freedom of choice which respondents assert is not the freedom to choose not to ingest any fluoride (they say, medication) because they .are now consuming and apparently, irrespective of the ordinance, will continue to ■drink water containing one-half part fluoride to each million gallons. Thus, the freedom of which respondents speak can be only the freedom to choose not to ingest ■more fluoride (more medication) than they .are now consuming by drinking water which contains an additional one-half part fluoride to each million gallons of water. It is true that respondents’ evidence tended ■to show that the greater the amount of fluoride in the water the greater the harm to the individual consuming it, so admittedly, from respondents’ standpoint, there is involved some “freedom of choice” but it is of the nature indicated.

We are not concerned with the expediency of the ordinance or with the wisdom of the council’s action in enacting it. We again recognize that we are bound by the council’s reasonable determination that the measure will result in benefit to each individual consumer and not in harm. We have held herein that the ordinance does bear a reasonable relation to public health and, based upon the council’s conclusions, does tend to enhance the health of the residents ■of the county. Consequently, it appears that for us to hold the ordinance in question is in “palpable conflict” with the state or federal constitution we would need to find and rule that, although, as we have held, the ordinance bears a reasonable relation to public health and its enforcement would enhance the public health, nevertheless, the type and extent of the benefit accruing to each individual (prevention of dental decay) are such that each individual must be completely free to determine for himself whether he will accept the asserted benefit bestowed through the fluoridation of the public water supply, else his freedom of choice is unreasonably infringed. We correctly may not so hold. On the contrary, it seems to us that the reasonably expectable and valuable benefit which the Council determined would accrue to the community as a whole justifies the resulting infringement of the individual’s freedom of choice. (We note, parenthetically, that we have assumed throughout that the enforcement of the ordinance would “compel” respondents and other residents to consume the fluoride ion. That is because we recognize that there is a very real compulsion for many from a practical standpoint when the only apparent ways to avoid drinking public water and thus to avoid' consuming the additional fluoride probably are, for many, prohibitively expensive or unduly burdensome. The fact remains, however, that in considering the matter of undue or unreasonable infringement, it is well to recognize that the ordinance does not specifically require any individual water consumer to do anything.)

We are supported in our conclusion as to the ordinance by the opinions from each of eight appellate courts which have considered the questions involved in the fluoridation of public water supplies. It is true that there are distinguishing features in those cases. In some were fact stipulations which eliminated certain questions. In one of them, the Iowa case, the sole question was the power of a city to enact such an ordinance. On the whole, however, the opinions in the following cases are authority for the conclusion we have reached: Baer v. City of Bend, supra; Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352; Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609; Dowell v. City of Tulsa, Okla., 273 P.2d 859, 43 A.L.R.2d 445; De Aryan v. Butler, Cal.App., 260 P.2d 98; Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242; Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142; Wilson v. City of Council Bluffs, Iowa, 110 N.W.2d 569.

Taking into account and consideration the relevant facts and circumstances as we see them, we are of the view that we may not confidently say that the enforcement of the ordinance in question would result in an undue or unreasonable infringement of respondents’ protected freedom of choice under the due process clause of either the state or federal constitution.

Respondents contend also that the fact that their evidence indicated that there were other and, in their opinion, better ways to apply the fluoride ion to the teeth obviated the necessity for the fluoridation of the public water supply and thereby caused the ordinance to “broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231. While, as we have pointed out heretofore, respondents did adduce evidence that fluorine could be applied to the teeth either topically or by dissolving tablets in individual water supplies, there was other evidence from which the council reasonably could have reached the conclusion that such methods would not effectively accomplish the purpose of the ordinance, that is, to benefit all by partially freeing each from the ravages of dental decay. It is suggested also that the ordinance benefits only a particular class, i. e., children up to 14 years, and it is contended that the ordinance is unconstitutional for that reason. While it is true the ordinance in question must be in the interest of the public generally as distinguished from the interest of a particular class, the evidence was such as justified the council in determining that the consumption of fluoridated water would benefit people of all ages. There was direct testimony to that effect and, of course, it is apparent that children become adults. Clearly, the council was justified in finding that the ordinance was in the interest of the county’s entire population and not solely in the interest of a particular class.

Respondents contend further that the ordinance is in conflict with and violates Sections 196.125-196.145 RSMo 1959, and V.A.M.S. The cited sections define a nonalcoholic drink and then provide that such nonalcoholic drinks shall not be adulterated or misbranded and prescribe a penalty for any violation. Respondents contend that water is a nonalcoholic drink and, inasmuch as Section 196.135, supra, provides that a nonalcoholic drink is adulterated when it contains any fluorides or fluorine compounds, the sections in question would be violated by the enforcement of an ordinance requiring the addition of a fluoride to water. We are of the view that respondents’ contention in that respect is untenable. Section 196.125, 12 V.A.M.S., defines a nonalcoholic drink in these words: “the term ‘nonalcoholic drink,’ as used herein, shall include carbonated beverages of all flavors, sarsaparilla, ginger ale, soda water of all flavors, lemonade, orangeade, root beer, grape juice, and all other nonintoxicating drinks.” It is clear enough to us that the legislature did not intend to include water within the expression “all other nonintoxicating drinks.” Clearly we think the legislature intended by that language to include other drinks popularly referred to as “soft drinks” which were not specifically named but which were of the general kind and nature as those listed. We so hold. See Dowell v. City of Tulsa, supra, 273 P.2d 859, 864[11, 12]; Froncek v. Milwaukee, supra, 269 Wis. 276, 69 N.W.2d 243, 250, 251.

We are of the opinion that the ordinance in question is not invalid for any of the reasons urged, and it follows that the judgment is reversed and the case remanded with directions to enter a judgment in accordance with the views herein stated.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


author: STOCKARD, Commissioner.

text:
    The UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, DISTRICT COUNCIL, OF KANSAS CITY AND VICINITY, an Unincorporated Labor Association, by J. O. Mack, Its President, W. C. Munroe, Charles Brewer, Daniel O’Connell, R. F. Addington and Henry O. Selig, Respondents, v. The INDUSTRIAL COMMISSION of Missouri, Appellant.
    No. 48610.
    Supreme Court of Missouri, Division No. 2.
    Jan. 8, 1962.
    Lloyd G. Poole, Jefferson City, for appellant.
    Gibson Langsdale, Kansas City, for respondents.
   STOCKARD, Commissioner.

The Industrial Commission of Missouri (hereafter referred to as the “Commission”) has appealed from the judgment of the Circuit Court of Jackson County in which it remanded Special Wage Determination No. 1041 to the Commission for further proceedings. We are first confronted with the question of our jurisdiction of this appeal.

On October 16, 1958 Stone County School District R-2, Galena, Missouri, requested from the Commission a determination of the prevailing wage for about 37 crafts or type of workmen needed to complete additions to a public school facility. On October 23, 1958 the Commission issued its Special Wage Determination No. 1041 which included a rate of $1.50 per hour for carpenters. On November 19, 1958, acting through an “attorney and legal agent” the “United Brotherhood of Carpenters and Joiners of America, District Council of Kansas City and Vicinity” filed with the Commission its objections to the determination of the prevailing rate for carpenters. A hearing was held on the objections, and on January 23, 1959 the Commission issued its order affirming its previous determination of $1.50 per hour as the prevailing rate for carpenters.

On February 20, 1959 the above named objector, asserting that it was “an unincorporated labor association” acting by J. O. Mack, its president, and five other individuals, filed in the Circuit Court of Jackson County a “petition for review” in which it was alleged that the named individuals “and the persons whom they represent” are persons affected by the action and determination of the Commission, and that they are “persons aggrieved within the definition and meaning of Section 536.100 RSMo 1949 [V.A.M.S.].” The circuit court held that “the Industrial Commission of Missouri could reasonably have made the findings of fact and reached the conclusion of law that it did, based upon the whole record, but that the Industrial Commission did not consider all competent evidence before it,’” and the court then entered its order remanding the cause to the Commission for further proceedings. It is from this order that the Commission has appealed to this-court.

Art. V, Sec. 3, Constitution of Missouri, V.A.M.S., provides that the supreme court has “exclusive appellate jurisdiction” in all cases of certain specified classes and “in other classes of cases provided by law.” There is no contention that this court has jurisdiction of this appeal by reason of any of the specifically enumerated classes of cases. Upon our own examination, but without any extended discussion herein of the various specifically named classes of cases, we hold that none apply to this case. If appellate jurisdiction is in this court it is only because this case is one of a class over which the legislature has vested exclusive appellate jurisdiction in this court pursuant to the above quoted constitutional provision.

On July 6, 1957 the Governor approved House Committee Substitute for House Bill 294 entitled, “An Act regulating wages of laborers, mechanics and other workmen employed in the construction of public works.” Laws of Missouri 1957, p. 574. Section 8 of said bill, now section 290.260, RSMo 1959, V.A.M.S., provides, among other things, that judicial review of the “final decision” of the Commission of the prevailing wages in a locality shall be in accordance with the provisions of Chapter 536, RSMo 1959, V.A.M.S., known as the administrative procedure act. Section 536.-140 of that act provides that appeals from the judgment of the circuit court may be taken “as in other civil cases.” However, paragraph 9 of Section 8 of Bill 294, now section 290.260(9), provides that “Appeals from all final orders and judgments entered by the [circuit] court in review of the final administrative decision of the department may be taken directly to the supreme court.”

The legislature cannot fix the appellate jurisdiction of the supreme court except to the extent and in the manner provided by the Constitution. Trianon Hotel Co. v. Keitel, 350 Mo. 1041, 169 S.W.2d 891; Automobile Club of Missouri v. Hoffmeister, Mo.Sup., 332 S.W.2d 957. In order to vest this court with appellate jurisdiction of this case the legislature must by law establish a class of cases, which includes this case, over which this court is to have exclusive appellate jurisdiction. From the language of section 290.260(9) we find it difficult to find any intent on the part of the legislature to establish such a class of cases, and if none is established the provision that an appeal may be taken to this court is void and of no effect. However, if it be assumed that the legislature did purport to establish a class of cases within the meaning of Art. V, Sec. 3, Constitution of Missouri, we must then necessarily rule that such attempt in the particular circumstances of this case is void and of no effect to vest this court with jurisdiction of this appeal because Bill 294 violated Art. Ill, Sec. 23 of the Constitution which, with certain exceptions not applicable, requires that “No bill shall contain more than one subject which shall be clearly expressed in its title.”

It seems clear that the Constitution contemplates that the establishment by the legislature of a class of cases pursuant to Art. V, Sec. 3, over which the supreme court is to have exclusive appellate jurisdiction is a separate subject within the meaning of Art. Ill, Sec. 23. However, it is not necessary that we specifically so rule in this case. In any event, the matter of the establishment of a special class of cases over which the supreme court is to have exclusive appellate jurisdiction is not directly or inferentially mentioned in the title to Bill 294. Even though a matter may be such that it may constitutionally be enacted with other matter under one title, unless it be within the subject that is “clearly expressed” in the title it violates Art. Ill, Sec. 23 of the Constitution. State ex rel. Niedermeyer v. Hackmann, 292 Mo. 27, 237 S.W. 742. The various matters treated in a bill must be germane to the subject expressed in the title, State v. Parker Distilling Co., 236 Mo. 219, 237 Mo. 103, 139 S.W. 453, which means that they must be closely allied, fit and appropriate, and of similar nature to the subject there designated. State v. Great Western Coffee & Tea Co., 171 Mo. 634, 71 S.W. 1011, 94 Am.St.Rep. 802. Although the provisions of Art. III, Sec. 23 of the Constitution are to be liberally construed, Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543, no reasonable construction could result in a ruling that the subject of establishing a separate class of cases over which the supreme court is to have exclusive appellate jurisdiction is germane to the expressed subject of Bill 294. For that reason, if not others, paragraph 9 of Section 8 of Bill 294, now section 290.-260(9), is void and of no effect insofar as it purports to vest this court with appellate jurisdiction of this appeal.

When the invalid portion of section 290.-160 is disregarded the remainder of its provisions present a complete and workable plan for judicial review of the administrative determination of prevailing wages as provided in the previously established administrative procedure act, Chapter 536, RSMo 1959, V.A.M.S. Pursuant to that act appeals from the order or judgment of the circuit court may be taken as in other civil cases, and in this particular case, that is the Kansas City Court of Appeals.

The parties have not raised this question of jurisdiction, but it is the duty of this court to determine such question sua sponte because it is a court of limited jurisdiction, not general. In making this determination we have necessarily ruled on the constitutionality of an act of the legislature, a question which as a general rule is not raised by the court on its own motion. However, “There are numerous cases where this court raised a constitutional question sua sponte, negatively, to protect the jurisdiction of the Courts of Appeals, and to disclaim our own.” City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372. In a somewhat similar situation this court raised sua sponte the constitutionality of a provision in the public service commission law which purported to vest appellate jurisdiction of appeals from that agency in this court. State ex rel. Gehrs v. Public Service Commission of Missouri, 338 Mo. 177, 90 S.W.2d 390; State ex rel. Pitcairn v. Public Service Commission of Missouri, 338 Mo. 180, 90 S.W.2d 392.

It thus appears that this court is without jurisdiction to rule any question presented on this appeal other than the question of jurisdiction and to transfer the case to the proper court of appeals.

The case should be and is transferred to the Kansas City Court of Appeals.

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.