author: MORGAN, Chief Justice.

text:
    In re EXTENSION OF BOUNDARIES OF GLAIZE CREEK SEWER DISTRICT OF JEFFERSON COUNTY.
    No. 60186.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1978.

      John W. Howald, Jeremiah Nixon, Hills-boro, for appellant.
    Benson Cytron, House Springs, for respondent.
   MORGAN, Chief Justice.

This case involves the constitutionality of Section 249.807, RSMo 1969. That statute provides for extension of the boundaries of a sewer district found under Sections 249.-760 to 249.810, RSMo 1969, provided the proposition must be voted on affirmatively by the owners of two-thirds of the property in the area to be annexed, on the basis of assessed valuation, and by two-thirds of the owners of the property in the original district, again on the basis of assessed valuation. Appeal (by the District) has been taken from an order of the circuit court holding said statute violative of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and Article I, § 2 of the Missouri Constitution because it creates an arbitrary and unreasonable voting classification. Because the cause involves the construction of the Missouri and United States Constitutions, this court has jurisdiction of the appeal.

The facts are not in issue, but a brief review is necessary before the constitutional claim can be approached.

The Glaize Creek Sewer District of Jefferson County, Missouri, by its Board of Supervisors and five or more owners of real estate within the territory to be annexed, filed in the Circuit Court of Jefferson County, Missouri an action titled In Re: Extension of Boundaries of Glaize Creek Sewer District of Jefferson County, Missouri. This was done pursuant to the provisions of § 249.807, RSMo 1969, which reads as follows:

249.807. Extension of boundaries of district, procedure
1.The boundaries of any sewer district formed under the provisions of sections 249.760 to 249.810 may be extended from time to time by filing a petition with the clerk of the circuit court having jurisdiction, signed by the board of supervisors and five or more owners of real estate situated within the territory to be annexed. The same proceeding shall then be followed as provided in sections 249.760 to 249.810 for the original organization of the district except that the proposition must be voted on affirmatively by the owners of two-thirds of the property in the area to be annexed, on the basis of assessed valuation, and by two-thirds of the owners of the property in the original district, on the basis of assessed valuation, in order to be conclusive.
2. The costs incurred in the extension of the boundaries of the district shall be taxed to the district if the annexation is completed and otherwise against the petitioners, except that no costs shall be taxed to the board of supervisors.
3. Any owner of real estate that abuts upon a district once formed may petition the board of supervisors for the incorporation of the real estate in the district. If approval is granted by the board the clerk of the board shall indorse his certificate of the fact of approval by the board upon the petition. The petition shall then be filed with the clerk of the circuit court of the county in which the district is incorporated. It is then the duty of the court to amend the boundaries of the district by a decree incorporating the real estate in it. A certified copy of the decree shall then be filed in the office of the recorder and in the office of the county clerk of the county in which the real estate, is located, and in the office of the secretary of state. The costs of the proceeding shall be borne, by the petitioning property owners. (L.1961 p. 451 § 20). (Emphasis added).

The petition alleged that the extension would be necessary in order to correct individual collection and treatment facilities in the area sought to be annexed which were alleged to be inadequate and inconsistent with good public health practices and pollution laws.

The petition set forth the boundary lines of the existing district and of the territory to be annexed; the names of all owners of real estate in the territory to be annexed; the names of all property owners in the existing district; and the legal description of the “out” boundary as it would exist after approval of the annexation. The petition prayed that the court incorporate the area sought to be incorporated with the boundaries of the existing district.

The petition and exhibits accompanying same were duly filed, all pursuant to the statute, and the clerk then caused public notice of the annexation and caused legal notice to be published in a local newspaper.

On May 6, 1977, a document designated as an objection to Extension of Boundaries of Glaize Creek Sewer District was filed in the circuit court by owners of real property within the boundaries of the area sought to be annexed. The document contained an objection to the annexation and extension of boundaries, denied the allegations in the petition and raised the affirmative point that the provisions of § 249.760 to § 249.807, RSMo 1969, denied the objectors their constitutional rights, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 2 of the Missouri Constitution, in particular their right to equal protection under the law.

The equal protection violation was alleged in that only persons who own real estate are entitled to vote in the election provided for in § 249.807, with such votes weighed and granted according to assessed valuation. Such provisions were alleged to be unreasonable, discriminatory and an arbitrary classification in violation of the rights guaranteed those who signed the document.

Based upon the arguments of counsel, the circuit court entered an order that § 249.-807, RSMo 1969, as pertaining to annexation, is unconstitutional and violative of both the state and federal constitutions in its creation of an arbitrary and unreasonable voting classification.

The primary issue herein involved is whether the statute does create an arbitrary and unreasonable voting classification, thereby violating the equal protection rights guaranteed in the state and federal constitutions.

Appellant, in its brief, argued that the trial court erred in dismissing the petition because the respondents lacked standing to challenge § 249.807, due to the fact that respondents are property owners, and have not been denied a vote. However, in oral argument appellant stated that both parties would be better served if this court decided this cause on the merit of the constitutional issue involving equal protection. We accede to appellant’s urging, and put aside what we regard as a serious standing problem, in order to decide the constitutionality of § 249.807.

Appellant notes initially that the extension of boundaries or the annexation of territory by a political subdivision or municipal corporation has long been held to be a plenary power of the state legislature, and subject only to constitutional limitation, the legislature possesses the power to annex, or authorize the annexation of territory to an existing governmental unit, with or without the consent or even against the remonstrance of the persons residing therein. Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907); Barnes v. Kansas City, 359 Mo. 519, 222 S.W.2d 756 (banc 1949).

However, in the instant case, the legislature chose to provide for consent of property owners as a condition precedent to annexation. Therefore, while there may be no constitutional right to anyone to vote in the organization or enlargement of a municipal corporation (and by analogy a sewer district), the legislature has granted such a right. The problem here is not deprivation of a constitutional right to vote, but rather, as respondents correctly point out, whether or not, in granting a right to vote, the legislature created an arbitrary classification such as would violate the Fourteenth Amendment to the United States Constitution and Article I, Sec. 2 of the Missouri Constitution, both of which guarantee equal protection under the law. Appellant contends such an exercise of legislative discretion as is evidenced by § 249.807 is totally reasonable and valid. Respondents argue it is not. The task at hand would appear to be clear.

if a challenged state statute grants the right to vote in a limited purpose election to some otherwise qualified voters and denied it to others, “the Court must determine whether the exclusions are necessary to promote a compelling state interest.” Kramer v. Union Free School District No. 15, 395 U.S. 621, 627, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1968) . .
Moreover, no less showing that the exclusions are necessary to promote a compelling state interest is required merely because “the questions scheduled for the election need not have been submitted to the voters.” Cipriano v. City of Houma, 395 U.S. 701, 704, 89 S.Ct. 1897, 1899, 23 L.Ed.2d 647 (1968). '

Thus, we may begin with the premise that a compelling state interest must be demonstrable in order to justify the exclusion involved in this election scheme. As pointed out in Kramer v. Union Free School District No. 15, 395 U.S. 621, 627-28, 89 S.Ct. 1886, 1890, 23 L.Ed.2d 583 (1968):

. when we are reviewing statutes which deny some residents the right to vote, the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a “rational basis” for the distinctions made are not applicable.

For that reason, in Kramer, such voting provisions were closely scrutinized. In that case, a New York statute limiting the franchise in school board elections to owners and lessees of real property and to parents of school age children was struck down as violative of the Equal Protection Clause of the Fourteenth Amendment. Besides demonstrating a rational basis for the exclusions involved, the state was made to bear the burden of proving those exclusions were “necessary to promote a compelling state interest.” 395 U.S. at 630, 89 S.Ct. at 1891.

In Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1960) and Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970) the Supreme Court examined bond elections and in both cases a state law excluding nonpro-perty owners from voting lacked a justification that reached the point of a compelling state interest.

In Cipriano, supra, the denial of the franchise to nonproperty owners in elections on revenue bonds was held to be violative of the nonproperty owners’ rights because they, like property owners, would be substantially affected by the issuance of revenue bonds to finance municipal utilities.

In Phoenix, supra, the same court held that the case of elections to approve general obligation bonds was analogous and a similar voting scheme was prohibited under the Fourteenth Amendment. The court stated that:

. The differences between the interests of property owners and the interests of nonproperty owners are not sufficiently substantial to justify excluding the latter from the franchise. .
it is unquestioned that all residents of Phoenix, property owners and nonproperty owners alike, have a substantial interest in the public facilities and the services available in the city and will be substantially affected by the ultimate outcome of the bond election at issue in this case. Presumptively, when all citizens are affected in important ways by a governmental decision subject to a referendum, the Constitution does not permit weighted voting or the exclusion of otherwise qualified citizens from the franchise. Phoenix v. Kolodziejski, 399 U.S. 204, 209, 90 S.Ct. 1990, 1994, 26 L.Ed.2d 523 (1969).

Cipriano, Phoenix and Kramer provide the starting place for resolution of this case. Clearly, they establish the rule and the test for exclusionary voting schemes and weighted voting shares. See also Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970) (holding that the one person, one vote rule applies to school district trustee elections).

The difficult cases which we reach, and the point of real demarcation for the parties here, are Salyer Land Co. et al. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973) and Associated Enterprises, Inc., et al. v. Toltec Watershed Improvement District, 410 U.S. 743, 93 S.Ct. 1237, 35 L.Ed.2d 675 (1973).

Those cases create an exception to the general equal protection prohibition against exclusionary and weighted voting. The question we now have is whether or not the instant case falls within that exception.

In Salyer, the Supreme Court reviewed a constitutional challenge to the organization of a water storage district, pursuant to the California Water Storage District Act, Calif. Water Code § 39000 et seq. Such a district was authorized to plan projects and execute approved projects for the acquisition, appropriation, diversion, storage, conservation and distribution of water in California. The districts could also acquire and operate any necessary works for storing and distributing water and fix tolls and charges for the use of water, collecting them from all persons receiving the benefit thereof. The costs of the projects were to be assessed against district land in accordance with the benefits accruing to that land. Each district was to be governed by a board of directors elected from within the division and it was the voter qualification scheme for such elections that prompted the constitutional challenge. Therein, the voting plan permitted only landowners to vote in water storage district general elections with such votes being apportioned according to assessed valuation of the land. The voting provision was upheld as constitutional by the United States Supreme Court.

In doing so, the court carefully reviewed the cases preceding Salyer. Kramer’s voter qualification statute for school district elections was found to have been deficient because it “. . . excluded many persons who bad distinct and direct interests in school meeting decisions and included many persons who had, at best, remote and indirect interests.” 410 U.S. at 726, 93 S.Ct. at 1229.

The Louisiana law which gave only property taxpayers the right to vote in elections called to approve the issuance of revenue bonds by a municipal utility in Cipriano, was said to have been constitutionally infirm:

. since the operation of the utility system affected virtually every resident of the city, not just the 40% of the registered voters who were also property taxpayers, and since the bonds were not in any way financed by property tax revenue. 410 U.S. at 727, 93 S.Ct. at 1229.

The court said it had expanded that rationale in Phoenix to include general obligation bonds of municipalities because “It was there noted that not only did those persons excluded from voting have a great interest in approving or disapproving municipal improvements, but they also contributed both directly through local taxes and indirectly through increased rents and costs to the servicing of the bonds.” Id. at 727, 93 S.Ct. at 1229.

The court did note its pronounced exception to the one person, one vote rule, articulated in Kramer and in Hadley v. Junior College District, supra:

It is of course possible that there might be some case in which a State elects certain functionaries whose duties are so far removed from normal governmental activities and so disproportionately affect different groups that a popular election might not be required, . Hadley v. Junior College District, 397 U.S. 50, 56, 90 S.Ct. 795 (1970).

In Salyer, the court then stated: “We conclude that the appellate] water storage district, by reason of its special limited purpose and of the disproportionate effect of its activities on landowners as a group, is the sort of exception to the rule . . . ” 410 U.S. at 728, 93 S.Ct. at 1229.

That holding was based upon two reasons: First, the fact that the district did not exercise what the court referred to as any normal governmental authority, but rather, had only a relatively limited authority. The court stated: “Its primary purpose, indeed the reason for its existence, is to provide for the acquisition, storage, and distribution of water for farming in the Tulare Lake Basin. It provides no other general public services such as schools, housing, transportation, utilities, roads, or anything else of the type ordinarily financed by a municipal body. There are no towns, hospitals, or other facilities designed to improve the quality of life within the district boundaries, and it does not have a fire department, police, buses, or trains.” 410 U.S. at 728-29, 93 S.Ct. at 1230. Secondly, stated the court: “[The district’s] actions disproportionately affect landowners. All of the costs of district projects are assessed against land by assessors in proportion to the benefits received. Likewise, charges for services rendered are collectible from persons receiving their benefit in proportion to the services. When such persons are delinquent in payment, just as in the case of delinquency in payments of assessments, such charges become a lien on the land. In short, there is no way that the economic burdens of district operations can fall on residents qua residents, and the operations of the districts primarily affect the land within their boundaries.” 410 U.S. at 729, 93 S.Ct. at 1230.

By reason of (1) the special limited purpose and (2) the “disproportionate effect of its activities on landowners as a group,” the court found the district did fit the exception to the one man, one vote rule. 410 U.S. 728, 93 S.Ct. 1229. In this type of special purpose district, added the court, the question for determination is not whether there is a compelling state interest in such a scheme as the election in issue, but rather whether the decision to deny the franchise to nonlandowners may be reasonably justified by any state of facts. In other words, if the two exception qualifications are met, a challenged election need only meet a minimum rational basis scrutiny (could the legislature have reasonably believed preferential voting was necessary?).

The court reasoned that the California legislature could reasonably have concluded that a statutory framework for election of directors should focus on the land benefit-ted rather than on the people as such. 410 U.S. at 729-30,93 S.Ct. 1224. The less rigid “rational basis” test led to the following conclusion:

The California Legislature could quite reasonably have concluded that the number of landowners and owners of sufficient amounts of acreage whose consent was necessary to organize the district would not have subjected their land to the lien of its possibly very substantial assessments unless they had a dominant voice in its control. Since the subjection of the owners’ lands to such liens was the basis by which the district was to obtain financing, the proposed district had as a practical matter to attract landowner support. Nor, since assessments against landowners were to be the sole means by which the expenses of the district were to be paid, could it be said to be unfair or inequitable to repose the franchise in landowners but not residents. Landowners as a class were to bear the entire burden of the district’s costs, and the State could rationally conclude that they, to the exclusion of residents, should be charged with responsibility for its operation. We conclude, therefore, that nothing in the Equal Protection Clause precluded California from limiting the voting for directors of appellee district by totally excluding those who merely reside within the district. 410 U.S. at 731, 93 S.Ct. at 1231.

The question now before this court is whether the instant factual situation falls within the exception carved out by the Sa-lyer case. We do not believe that it does. We believe this case falls within the consistent body of case law that holds that in order to justify denying the franchise to a group of voters, the exclusion must be premised upon some compelling state interest.

If all voters have an interest in adequate service and the rate structure of a utility district (Cipriano, supra) or in school affairs (Kramer, supra) or in a library (Hill v. Stone, 421 U.S. 289, 95 S.Ct. 1637, 44 L.Ed.2d 172 (1975)), then they also have an interest in the adequacy and rate structure of a sewer district.

In Salyer, the court distinguished the water storage district from the above because it did not provide any “. . . general public services . . . .” 410 U.S. at 728-29, 93 S.Ct. 1224. In the instant case the district would certainly provide a crucial public service, one of benefit to the health and well being of all residents and not just to landowners.

Further, in dealing with the second test set out in Salyer, we do not find a potential disproportionate effect on landowners by the actions of a sewer district. In the instant case, assessments against land are not the sole method of financing the district. The district may and probably will charge all users, nonproperty owners as well as property owners. Further, sewer service to all nonpayers can easily and quickly be cut off to ensure rate payment, corresponding to any ad valorem tax levy becoming a lien on the property of a landowner for nonpayment of costs assessed by way of taxes. § 249.785. Moreover, the district may issue revenue bonds payable from revenue derived from operation of the district’s sewage system other than assessments.

Beyond all this, we see Salyer as a distinct exception to the line of cases pertaining to this issue. The water district there was primarily geared to acquire, store and distribute water for farming in a drought ridden area. Assessments against the land were the principal means of financing the district. In the instant case, a public benefit, a sewage system, is financeable by a variety of methods, many of which, like the benefit itself, affect all those residing in the district.

For these reasons we do not find that this district falls within the special purpose exception of Salyer and we require a compelling state interest to justify the arbitrary disenfranchisement of nonproperty owning voters. Appellant suggests no such compelling state interest, nor in view of the above discussion, can we discern such an interest. Appellant alludes to administrative difficulty in allowing any but property owners the franchise. Appellant also suggests that only property owners would be willing to take a genuine interest and concern in the sewer district. We regard both of these arguments as a sophistic exercise and find no reason that would compel the state to make this arbitrary and unreasonable distinction in granting the voting franchise.

In reaching this conclusion, we find we are in accord with those jurisdictions that have sought to interpret and apply the Supreme Court’s rulings in this area of constitutional law.

For example, in Choudhry et a1. v. Free, 17 Cal.3d 660, 131 Cal.Rptr. 654, 552 P.2d 438 (1976), the Supreme Court of California discussed the unbroken line of United States Supreme Court cases striking down statutes requiring property qualifications for voting in special purpose districts. The California Court recognized Salyer as the only recent decision providing an exception to the trend, and distinguished Salyer’s exception from the district in question on the basis that the instant special purpose district furnished services to residents who were not property owners and also on the basis that assessments against land were not the only means of paying the district’s expenses. 552 P.2d at 443. In doing so, the court struck down a statute providing that the director of an irrigation district must be a freeholder of the district he would represent.

In Kelley v. Mayor and Council of City of Dover, 314 A.2d 208 (Del.Ch.1973) a constitutional challenge was directed at a Delaware statute providing for annexation elections with weighted voting on the basis of property ownership. The Delaware Supreme Court found such a scheme violated the Equal Protection Clause, distinguishing Salyer, because the district in Delaware provided more general services than did the district in Salyer.

In Wright v. Town Board of Carlton, 70 Misc.2d 1, 332 N.Y.S.2d 233, aff’d as mod. on other ground, 41 A.D.2d 290, 342 N.Y. S.2d 577, aff’d Mem., 33 N.Y.S.2d 977, 353 N.Y.S.2d 739, 309 N.E.2d 137 (1973), a provision limiting voting rights in the organization of a water district to owners of taxable real property was held violative of the Equal Protection Clause.

We do note that some jurisdictions have dealt with special purpose districts that do fit the two-pronged exception test articulated in Salyer, and we certainly recognize that such exceptions may exist, though they are not applicable under the facts of the instant case.

Again, we find that the appellant sewer district does not meet the two-part test of the Salyer exception, nor do we then find any compelling state interest in the voting scheme contested here. Thus, we find § 249.807, providing for the election, is unconstitutional as violative of both the United States and Missouri Constitutions.

In finding that the § 249.807, RSMo 1969 is unconstitutional as it pertains to annexation of sewer districts on the basis that it creates an arbitrary and unreasonable voting classification, we affirm the order of the circuit court below dismissing with prejudice the petition for the extension of boundaries in the Glaize Creek Sewer District.

Appellant would have us remand with instructions to require the Board of Supervisors to hold a popular election to approve appellant’s petition in order to effectuate the legislative intent of § 249.777.2, which appellant claims allows the Board of Supervisors of a district to require a popular vote if “required by law.” We decline to embark on such a course in view of the fact that the issue before us is solely related to the constitutionality of § 249.807. We do state, however, that any future elections of the type herein contested, should, of necessity, fit the guidelines suggested by the United States Supreme Court.

Annexation elections similar to that contested here today which have already occurred in this state are not to be held retrospectively void by virtue of this decision. Such retrospective application would produce substantial hardships and inequitable results and there is ample basis for avoiding such injustice.

In Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 559, 606 (Mo.1969), we were “cognizant of the fact that retrospective application of our decision could result in great hardship to those institutions which have relied on our prior decisions upholding the doctrine of charitable immunity. Therefore, feeling that justice will best be served by prospective application of the decision announced today, we hold that the new rule shall apply to this case and to all future causes of action . . . .” Such a prospective application is also necessary in the present case to avoid injustice to those citizens who have relied on the outcome of elections already past. As the California Supreme Court noted in Westbrook et al. v. Mihaly, 2 Cal.3d 765, 87 Cal.Rptr. 839, 865, 471 P.2d 487, 513 (1970), “. . .we find ample authority for our refusal to disturb the results of an election conducted under ground rules later held invalid and for our decision to limit the retroactive effect of judicial intervention in the bond election process.” In an election case, the United States Supreme Court in Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S.Ct. 1897, 1900, 23 L.Ed.2d 647 (1960), found that: “Significant hardships would be imposed on cities, bondholders, and others connected with municipal utilities if our decision today were given full retroactive effect. Where a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” See also: Kelley v. Mayor and Council of City of Dover, 314 A.2d 208, 216 (Del.Ch.1973).

To avoid the injustice and hardship that would inevitably result from a retroactive decision applied to all similar elections, we invalidate only the election in issue in the present case and hold this decision applicable to all future such elections.

The order of the circuit court dismissing the petition for the extension of boundaries is hereby affirmed.

BARDGETT, FINCH, RENDLEN and SEILER, JJ., and GUNN, Special Judge, concur.

DONNELLY, J., dissents.

SIMEONE, J., not participating because not a member of the Court when cause was 'submitted.

      . The court found a rational basis for an identical statutory scheme in Associated Enterprises, Inc., et al. v. Toltec Watershed Improvement District, 410 U.S. 743, 93 S.Ct. 1237, 35 L.Ed.2d 675 (1973), a per curiam case accompanying Salyer.

      . See, e. g., Chesser v. Buchanan, 568 P.2d 39 (Colo.1977) (Tunnel improvement district requirement that residents have paid real property taxes before they can vote for district commissioners held within Salyer exception because of the limited scope of the district, the lack of any ordinary government services rendered and the fact that deficits in nonpayment could only result in assessments against landowners, with assessments being a lien on the land and with no provision for service charges of any kind); Citizens To Save Our Land v. McKee Creek Watershed Conservancy District of Adams et aI., Counties, 37 Ill.App.3d 935, 347 N.E.2d 41 (1975) (Act providing for appointment rather than election of trustees of river conservancy district held within Salyer exception because the activities of the district had no influence on the citizenry generally but merely affected a special group of citizens); Humane Society of United States, New Jersey Branch, Inc. v. New Jersey State Fish & Game Council, 129 N.J.Super. 239, 322 A.2d 841, rev’d on other grounds 70 N.J. 565, 362 A.2d 20 (1976) appeal dismissed, 429 U.S. 1032, 97 S.Ct. 723, 50 L.Ed.2d 744 (1977) (Statute limiting appointment to Fish and Game Commission to farmers, sportsmen and commercial fisheries held within Salyer exception because of specialized subject matter not within normal governmental services).


source: Caselaw Access Project

author: BARDGETT, Judge.

license: Public Domain

text:
    In re William R. THOMPSON et al., Respondents.
    No. 60074.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1978.
    O. J. Taylor, Springfield, for informants.

      Paul E. Ground, Manchester, for respondents.
   BARDGETT, Judge.

This is an action brought by the Advisory Committee of The Missouri Bar Administration against certain individuals and corporations seeking injunctive relief against the sale in this state of “Divorce Kits” by the respondents. This is an original proceeding in this court pursuant to rules 5.05, 5.13, and 5.18, jurisdiction being premised on this court’s inherent power to regulate the practice of law in Missouri. Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977 (banc 1937).

For the following reasons we dismiss the information and hold that these named respondents are not engaged in the unauthorized practice of law in this state.

The facts in this case are by stipulation of the parties and by admissions in the pleadings. Each of the respondents is presently engaged in or has previously engaged in the sale of divorce kits in Missouri. Respondent Thompson, an Oregon resident, is the principal owner of respondent, Divorce Service, Inc., an Oregon corporation. Divorce Service, Inc., prepares the “Divorce Kits” and makes them available to franchisees. The other named respondents are the franchise holders and have sold the kits in the St. Louis and Kansas City areas. None of the named respondents are attorneys or authorized to practice law in Missouri.

The “Divorce Kits” offered for sale in this state consist of a packet approximately one-fourth inch in thickness. Much of the kit consists of various forms pertaining to an action for an uncontested dissolution of marriage. Blank spaces, with instructions on practice forms, are provided for the insertion of specific items applicable to the parties involved in the dissolution. These forms include two forms for a petition for dissolution of marriage, one a “joint” petition, and one an individual petition, as well as other forms including affidavits of nonmilitary service, waivers of notice of hearing, affidavits needed to obtain service by publication, financial statements, and a decree form. These forms are accompanied by two kinds of instructions, a set of general procedural instructions designed to instruct as to what forms to file, in what order and where, and instructions on how to prepare the forms. Initially, the kits included a cassette tape recording restating the instructions in the packet; however, the kits no longer include the cassette tapes.

Respondents make two contentions in this action. First, that the activities in which they engage do not constitute the unauthorized practice of law; second, that any action by this court in forbidding or enjoining respondents would contravene the first and fourteenth amendments to the United States Constitution relating to freedom of speech and freedom of the press and art. 1, sec. 8, of the Missouri Constitution relating to the same subjects.

We first consider jurisdiction over the issues in this case. The judicial branch of government has the power to regulate the practice of law. In re Richards, 333 Mo. 907, 63 S.W.2d 672 (banc 1933). The legislature has prescribed penalties for the unauthorized practice of law and has defined the terms “practice of law” and “law business” as follows:

“484.010. ‘Practice of the law’ and Taw business’ defined.
—1. The ‘practice of the law’ is hereby defined to be and is the appearance as an advocate in a representative capacity or the drawing of papers, pleadings or documents or the performance of any act in such capacity in connection with proceedings pending or prospective before any court of record, commissioner, referee or any body, board, committee or commission constituted by law or having authority to settle controversies.
2. The Taw business’ is hereby defined to be and is the advising or counseling for' a valuable consideration of any person, firm, association, or corporation as to any secular law or the drawing or the procuring of or assisting in the drawing for a valuable consideration of any paper, document or instrument affecting or relating to secular rights or the doing of any act for a valuable consideration in a representative capacity, obtaining or tending to obtain or securing or tending to secure for any person, firm, association or corporation any property or property rights whatsoever.”

Although the legislature may assist the court by providing penalties for the unauthorized practice of law and thus may define that term, the legislature may in no way hinder, interfere, or frustrate the court’s inherent power to regulate the practice of law. Hoffmeister v. Tod, 349 S.W.2d 5, 11[2] (Mo. banc 1961).

In Hulse v. Criger, 363 Mo. 26, 247 S.W.2d 855, 857-858 (banc 1952), we stated that the regulation by this court of the unauthorized practice of law “. . .is not to protect the Bar from competition but to protect the public from being advised or represented in legal matters by incompetent or unreliable persons. Our purpose must be to make sure ‘that legal services required by the public, and essential to the administration of justice, will be rendered by those who have been found by investigation to be properly prepared to do so by conforming to strict educational standards, and who demonstrate that they have the character to conform to higher standards of ethical conduct than are ordinarily considered necessary in business relations which do not involve the same fiduciary and confidential relationships.’ ”

The instant case appears to be one of first impression before this court. However, we have considered analogous issues in the past. In Hulse v. Criger, supra, we held that one regularly engaged as a real estate broker could fill in simple legal forms such as contracts of sale, notes, deeds of trust, and other standard forms. We limited this activity to the preparation of forms essential to a principal vocation and specifically held that one “may not give advice or opinions as to the legal rights of the parties as to the legal effect of [the] instruments . . . .” 247 S.W.2d at 862[10]. We find Hulse v. Criger, supra, generally applicable. Other jurisdictions have decided cases directly on point and are more persuasive however in light of recent United States Supreme Court cases decided after Hulse.

In State Bar v. Cramer, 399 Mich. 116, 249 N.W.2d 1 (1976) defendant Cramer was engaged in the business of soliciting and aiding in divorces under Michigan’s “no-fault” divorce law. Defendant prepared the complaint and summons for clients following an initial conference. Thereafter, all forms were completed and executed at defendant’s office. Before the evidentiary hearing for the entry of judgment, the defendant provided “clients” with suggested testimony to be offered to the court as well as a list of questions to be propounded to the witnesses. The Michigan Supreme Court upheld a finding of civil contempt by the defendant. However, the court distinguished between personal contact and “customers” in the nature of consultation, explanation, recommendation or advice, as well as suggesting or advising how the forms should be personally tailored and the mere advertisement and sale of do-it-yourself forms. The Michigan court held at 249 N.W.2d at 9[14]:

“We also believe this to be a significant distinction. The advertisement and distribution to the general public of forms and documents utilized to obtain a divorce together with any related textual instructions does not constitute the practice of law. There can be no serious challenge raised to this or any enterprise which is otherwise in compliance with those regulations applicable to products placed in the stream of commerce. Were defendant to limit her activity to providing forms and instructions regarding divorce, her undertaking would be analogous to that set forth in New York County Lawyers Assn. v. Dacey, 21 N.Y.2d 694, 287 N.Y.S.2d 422, 234 N.E.2d 459 (1967).”

In Oregon State Bar v. Gilchrist, 272 Or. 552, 538 P.2d 913 (1975), relied upon in State Bar v. Cramer, supra, the Oregon Supreme Court held that an injunction forbidding the sale and advertisement of divorce forms unduly restricted the activities of the defendants. The court distinguished between actual consultation with clients as opposed to the mere sale and advertisement of forms, stating at 538 P.2d 919:

“We conclude that in the advertising and selling of their divorce kits the defendants are not engaged in the practice of law and may not be enjoined from engaging in that part of their business. We further conclude, however, that all personal contact between defendants and their customers in the nature of consultation, explanation, recommendation or advice or other assistance in selecting particular forms, in filling out any part of the forms, or suggesting or advising how the forms should be used in solving the particular customer’s marital problems does constitute the practice of law and must be and is strictly enjoined.”

See also Colorado Bar Association v. Miles, 557 P.2d 1202 (Colo, banc 1976).

In Florida Bar v. Brumbaugh, 355 So.2d 1186 (Fla.1978), defendant advertised to the public that she performed typing services for “Do-It-Yourself” divorces, bankruptcies and wills. The Florida Supreme Court, because of several U. S. Supreme Court cases concerning first-amendment rights and the practice of law, reexamined their earlier decisions of Florida Bar v. American Legal and Business Forms, Inc., 274 So.2d 225 (Fla.1973), and Florida Bar v. Stupica, 300 So.2d 683 (Fla.1974). Those prior decisions held that it was not the unauthorized practice of law to sell to the public printed legal forms but held that no instructions could be provided purporting to instruct on how to fill out the forms or how to use them. The Florida court in Brumbaugh, citing State Bar v. Cramer, supra, held at 355 So.2d 1193-1194[15-16]:

“Although there is a danger that some published material might give false or misleading information, that is not a sufficient reason to justify its total ban. We must assume that our citizens will generally use such publications for what they are worth in the preparation of their cases, and further assume that most persons will not rely on these materials in the same way they would rely on the advice of an attorney or other persons holding themselves out as having expertise in the area. The tendency of persons seeking legal assistance to place their trust in the individual purporting to have expertise in the area necessitates this Court’s regulation of such attorney-client relationships, so as to require that persons giving such advice have at least a minimal amount of legal training and experience.
. We hold that Ms. Brumbaugh, and others in similar situations, may sell printed material purporting to explain legal practice and procedure to the public in general and she may sell sample legal forms. To this extent we limit our prior holdings in Stupica and American Legal and Business Forms, Inc. ... In addition, Ms. Brumbaugh may advertise her business activities of providing secretarial and notary services and selling legal forms and general printed information. However, Marilyn Brumbaugh must not, in conjunction with her business, engage in advising clients as to the various remedies available to them, or otherwise assist them in preparing those forms necessary for a dissolution proceeding.”

In State v. Winder, 42 A.D.2d 1039, 348 N.Y.S.2d 270 (1973), the court held that there was no legal impediment to a layman’s sale of a “Divorce Yourself Kit” because the kit did not give personal advice to specific problems to a readily identifiable person. However, the court held that the injunction issued below should stand to the extent that the defendant had offered personal advice to individuals.

In New York County Lawyers Association v. Dacey, 21 N.Y.2d 694, 287 N.Y.S.2d 422, 234 N.E.2d 459 (1967), the New York Court of Appeals held the publication and sale of legal forms was a common activity and the sale of a book entitled “How to Avoid Probate”, which included forms for use by lay people, did not constitute the unauthorized practice of law.

However, Palmer v. Unauthorized Practice Committee of the State Bar of Texas, 438 S.W.2d 374, 376 (Tex.Civ.App.1969), held the sale of will forms did constitute the unauthorized practice of law and stated:

“. . .A will ‘form’ as distributed by defendants is almost a will itself. The ‘form purports to make specific testamentary bequests in the planning of estates of potential decedents. By reading defendants’ advertisements, by reading the will form, and by reading the definitions that are attached, the unsuspecting layman is led to believe that defendants’ will ‘form’ is in fact only a form and that all testamentary dispositions may be thus standardized. The assumption is misleading and certainly will lead to unfortunate consequences for any layman who might rely upon the ‘form’ and the definitions attached.”

The court holds that the advertisement and sale by the respondents of the divorce kits does not constitute the unauthorized practice of law so long as the respondents and other similarly situated refrain from giving personal advice as to legal remedies or the consequences flowing therefrom.

Of course, respondents by entering their product in the stream of commerce may be liable to the consumers if they are negligently damaged by the use of the product. The cliche that “A person who represents himself has a fool for a client” is still accurate. Important rights are determined in dissolution proceedings — even “uncontested” cases — and the intelligent citizen will consult an attorney in such matters. The court by this opinion does not directly or indirectly approve or sanction the contents of the kits here involved. We merely hold that the sale of these kits does not constitute the unauthorized practice of law.

The information is dismissed.

MORGAN, C. J., FINCH, DONNELLY, RENDLEN and SEILER, JJ., and GUNN, Special Judge, concur.

SIMEONE, J., not participating because not a member of the court when cause was submitted.

      . We note the cases of Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), dealing with advertising of attorneys; Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975) dealing with fee schedules; Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), dealing with the right of pro se representation.

      . We note that Texas is a community-property state which may lead to unique problems in the probate of “form” testamentary instruments.

      . Informant contends that the distribution of a cassette tape purporting to instruct on the completion of the forms constitutes the unauthorized practice of law. We decline to pass on this contention as respondents have voluntarily ceased any distribution of the tapes.


text:
    In the Matter of Honorable Tracy L. STORIE, Respondent.
    No. 60711.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1978.

      James M. Smith, Sp. Counselor, Commission on Retirement, Removal and Discipline, St. Louis, for Commission.
    B. C. Drumm, Jr., Arthur S. Margulis, Wm. P. Grant, Clayton, for- respondent.
   BARDGETT, Judge.

This is a disciplinary proceeding brought by the Commission on Retirement, Removal and Discipline pursuant to art. 5, sec. 27, Mo.Const., and Rule 12. Respondent is judge of the magistrate court of Pulaski County. The commission found respondent violated the Code of Judicial Conduct (Rule 2) and the statutes of the State of Missouri and recommended that respondent be suspended from office without pay for sixty days. This case is before this court pursuant to art. 5, sec. 27, as amended 1970, and Rule 12.

The facts are not in dispute. Tracy Sto-rie was appointed to fill an unexpired term as Pulaski County magistrate in May 1974, only one month after being admitted to the bar and five months after graduating from law school. He was elected to office the following November and has served as magistrate judge in Pulaski County since that time.

Upon assuming office, respondent observed that the condition of the magistrate courtroom was “a total disgrace to any kind of judicial system”. It appears from the record that the courtroom was dilapidated and further that there were no legal reference books or annotated statutes available to the judge, lawyers, or parties before the court. Respondent sought modest funding for improvements in his budget submission to the county court; however, the Pulaski County Court judges (administrative) refused to allow any funds for putting the magistrate courtroom in presentable shape. All the evidence in this proceeding indicates the magistrate court facilities were a disgrace.

The prosecuting attorney of Pulaski County who was familiar with the conditions of the magistrate court suggested during a plea negotiation in August 1974 a contribution to a “library fund”. The defense attorney acquiesced and the concept was presented to respondent who approved the procedure. From the record it appears that the fund accounted for a small percentage of total fines in its four-year period of operation, about one percent. Although the prosecutor and the defense attorney would work out the amount to be contributed in consideration for a reduced charge, dismissal, or a nolle prosequi, without consulting respondent, the procedure had the approval of respondent. The bargain would be presented to respondent for disposition and the contribution would be presented to respondent or his clerk for the “library fund”. Respondent would then deposit the proceeds in a bank account and write checks on the account to pay for law books, wages for a parttime court employee, court maintenance and furnishings, as well as insur-anee on the county bar law library, which included some books loaned by local attorneys to the library. The fund operated from August 1974 through November 1977 during which time the fund accumulated a total of $9,360.34 in contributions. The fund was not secret. Its existence was widely known among the area bar members and others.

On January 4, 1977, the commission sent respondent a letter inquiring about the fund. Respondent promptly replied to the inquiry the following day by letter. There is nothing in the tone or wording of the commission’s letter that would indicate a concern that the operation of the library fund was improper. Respondent’s reply was truthful, open and candid. It, too, did not indicate any awareness that the procedure may be improper but rather demonstrated a willingness to fully cooperate with the commission.

On September 1, 1977, the commission propounded interrogatories which were answered after one continuance on October 11,1977. Formal charges were filed by the commission on November 28, 1977, and the hearing was set for January 4, 1978. On December 19, 1977, respondent filed a motion to dismiss because of lack of notification of the investigation. The motion was denied. On December 27, 1977, a second motion to dismiss was filed alleging that the formal charges did not allege specific violations enunciated in Rule 12.08(a), which was denied. On the date of the hearing, January 4, 1978, a third motion to dismiss was filed alleging that respondent had been deprived of due process and this motion was denied.

The hearing commenced January 4, 1978,- and concluded that same day. On March 30, 1978, the commission recommended that respondent be suspended from office without pay for sixty days. Respondent timely objected to the recommendation of the commission to this court.

Initially we consider respondent’s procedural contentions. Respondent contends that the notice of the investigation, which is mandatory under Rule 12.08(a), was insufficient as it did not apprise respondent of an investigation nor did the commission prove that the notice was sent by registered or certified mail.

Rule 12.08(a) provides in part: “The judge, magistrate or commission member shall be notified of the investigation, the nature of the information or complaint against him, or that the investigation is on the Commission’s own motion, and shall be afforded reasonable opportunity in the course of the investigation to present such matters as he may choose. Such notice shall be given by prepaid registered or certified mail, addressed to the judge, magistrate or commission member at his last known residence.”

Respondent does not dispute that he received a letter on January 4, 1977; however, he contends that the letter was insufficient notice in that (1) the letter did not state that an investigation was in progress and (2) there was no suggestion of impropriety. Respondent claims that because of lack of notice he did not have an opportunity during the informal investigation to present material relevant to his defense. Respondent has not aided the court with case law in support of his contention but alleges that “[proceedings under Rule 12 are quasi-penal and the Commission ought to be required to strictly comply with those requirements.”

Absent a showing of prejudice, respondent cannot complain of alleged irregularities in the informal notice. It is generally accepted that Rule 12 is modeled after the California provision for judicial disciplinary proceedings. In the Matter of Duncan, 541 S.W.2d 564, 568[4] (Mo. banc 1976); In the Matter of Fullwood, 518 S.W.2d 22, 24 (Mo. banc 1975). The Supreme Court of California construed their notice provision, rule 904(b), in a similar challenge in McCartney v. Commission on Judicial Qualifications, 12 Cal.3d 512, 116 Cal.Rptr. 260, 526 P.2d 268 (banc 1974), and held 116 Cal. Rptr. at 265, 526 P.2d at 273:

“. .In affording a judge ‘reasonable opportunity in the course of the preliminary investigation to present such matters as he may choose,’ rule 904(b) clearly affords to the judge more procedural protection than is constitutionally required. At the stage of the proceedings to which rule 904(b) applies, the Commission clearly has not yet commenced to perform any adjudicatory function, but is merely attempting to examine citizen complaints in a purely investigatory manner. Accordingly, notice to the judge under investigation as to the nature of the complaints against him is not compelled as a matter of due process. (See Hannah v. Larche (1960) 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307.) Hence, relief from the deleterious effect, if any, of the Commission’s failure to follow rule 904(b) may be secured by petitioner only upon a showing of actual prejudice.”

Respondent would urge this court to disregard the California interpretation because of the “quasi-penal” nature of the proceedings. The characterization of removal and disciplinary proceedings as “quasi-penal” ignores the function of the commission. The procedure before the commission is not to punish criminal conduct but rather to maintain standards of judicial fitness. Matter of Mikesell, 396 Mich. 517, 243 N.W.2d 86, 90[2] (1976).

The respondent was not prejudiced. The contention is overruled. However, in future proceedings, the commission, or its counsel, will be expected to afford a judge notice of the nature of the complaint or matter being investigated in order that the judge can present information to the commission prior to the formal charge. This is in order that, where the commission finds the judge’s account of a matter to be such as persuades them that no improprieties occurred, then there will be no formal charge or fewer counts in the formal charge. Rule 12.08(a).

Respondent alleges that the commission failed to comply with the discovery requirements in Rule 12.14 because of the failure of the commission to forward a transcript of an interview with an assistant attorney general and respondent. Respondent contends that because of the commission’s failure to furnish the transcript and to affirmatively disclose that all items requested had been furnished, he has possibly been deprived of evidence necessary to the presentation of his defense. This point is not reached because it is respondent’s own testimony that forms the basis for the findings and conclusions of the commission as well as this court’s findings and conclusions. It is not clear as to what, if anything, respondent did not receive from the commission.

The respondent next contends that because of the investigative, prosecutive, and adjudicative functions of the commission he was denied due process of law. Respondent concedes that Duncan, supra, holds that “the combination of the investigatory and adjudicatory functions does not violate the strictures of the due process clause.” 541 S.W.2d at 568. However, respondent seeks to distinguish Duncan because the presenter of evidence was identified as the “legal administrator and special counselor to the Commission” and in that capacity the attorney acted as a prosecutor. The point is overruled. In the Matter of Duncan, supra.

Respondent’s final procedural argument is that the charges contained in the notice of November 28, 1977, do not constitute violations of Rule 12.08(a) or art. 5, see. 27, of the Missouri constitution. Basically, respondent argues that violations of Rule 2 are not, per se, sufficient to justify disciplinary proceedings absent a violation of specific grounds enumerated in Rule 12.08(a) or art. 5, sec. 27, Mo.Const., which contemplates “gross misconduct”. This argument has recently been considered in Matter of Kohn, 568 S.W.2d 255 (Mo. banc 1978), where we held at 257:

“. . . It cannot be seriously questioned that the Code of Judicial Conduct, as well as the Canons of Judicial Ethics, serve as measures for both Commission and Court in judicial disciplinary proceedings and that evidence of judicial conduct in violation of the Canons or Code may be considered in determining whether particular acts complained of rise to the level of misconduct contemplated by Art. V, sec. 27(3).”

Respondent’s interpretation would place an unduly restrictive definition on “misconduct” encompassing only those acts which would result in impeachment or removal. The point is overruled.

Respondent alleges that the commission’s findings are not supported by the evidence except for count 1(d), and the commission exonerated respondent of that charge. However, the evidence of the operation of the library fund came primarily from respondent and his witnesses. The facts are not in dispute.

Counts 1(a) through 1(e) are merely restated in the conclusions of law with the exception of count 1(d). No specific findings appear to relate to the blanket charges that respondent has violated sections 558.-110 (oppression in office), 558.170 (individual acting as a prosecutor), 556.120 (conspiracy), nor do any of the findings appear to substantiate any inference that respondent has violated the criminal code of this state. Counts 1(a) through 1(e) also charge that respondent diverted funds as well as subverted the drivers’ license “point system”. Again, no specific findings support these conclusions of law. We, therefore, dismiss counts 1(a) through 1(e) as unsupported by the evidence.

Count II, as adopted by the Commission in its conclusions of law, states:

“The Commission concludes by the Respondent’s activities in connection with the formation of the so-called Library Fund, its maintenance and administration, in such a manner as to appear to be related to the discharge of the judicial functions of his office that he has directly violated the following: that he has given the appearance of impropriety; that he has not maintained and observed the high standards of conduct preserving the integrity and independence of the judiciary; and, that he did not comply with the law and did not conduct himself in a manner that promotes public confidence in the integrity and impartiality of the judiciary. The foregoing is in violation of Missouri Supreme Court Rule 2, Canons 1, 2A.”

Canon 1, as set forth in Rule 2, provides: “A Judge Should Uphold the Integrity and Independence of the Judiciary.”

Canon 2 of Rule 2 provides: “A Judge Should Avoid Impropriety and the Appearance of Impropriety In His Official Activities.”

Canon 2A provides: “A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

We find, by his own admissions, respondent violated the foregoing rules of court. In his brief respondent states: “There is no question that the existence of the fund might have given an appearance of impropriety and that a potential to erode public confidence in the integrity and impartiality of the judiciary existed.”

Respondent’s statement in his brief is underscored by his attorney’s response to questions propounded during oral argument before this court:

“Q. What do you suppose these people that paid the one-thousand dollars or the five-hundred dollars thought they had accomplished with those payments?
“A. Your Honor, I think they thought they bought their way out of it. If you ask me what I think they thought, that would have to be my response. That would be the only conclusion I would reach. We have stated in our brief that there was a possibility of an appearance of impropriety. There is no question in my mind about it, I don’t see how we can deny it.”

The commission’s finding in count II is amply supported by the evidence and admissions of respondent. Although respondent may have acted without an evil intent, the practical effect to the public is that of a “pay-off”, not unlike the fact situation in In re Diener et al., 268 Md. 659, 304 A.2d 587 (1973), which involved removal of municipal judges for “ticket-fixing”. In that case, even though there was no financial benefit to the judges, the court of appeals removed the judges because of “conduct prejudicial to the administration of justice.” Id. 594[5].

Although this case is distinguishable from the Diener case in some instances, it appears that respondent considered himself a “rubber-stamp” of the prosecutor. We do not feel that this is a proper perspective of judge-prosecuting attorney relationship in acceptance of plea bargaining. Respondent asserts that the “library fund” was but one additional ingredient in the plea bargaining process. We also disagree with this contention. Plea bargaining contemplates a judicial determination of the sentence.

See A.B.A. Minimum Standards for Criminal Justice, secs. 1.8 and 3.3, “Approved Draft, 1968”.

Respondent violated Rule 2, Canons 1 and 2A, in that he consented to and participated in the operation of a “library fund” which, from an objective standpoint, gave the appearance that justice was for sale in his court. Respondent has manifested his belief that the “fund” was improper and, coupled with the other circumstances in this case, as well as respondent’s cooperation with the commission, we adopt the commission’s recommendation of suspension from office without pay for sixty days. This suspension shall apply to respondent for the period designated even though respondent will become an Associate Circuit Judge on January 2, 1979.

Respondent is herewith suspended from the office of Judge of the Magistrate Court of Pulaski County for a period of sixty days without compensation, and the clerk of this court is directed to furnish and deliver certified copies of this opinion and order as provided in Rule 12.26.

All concur.

      . All references are to Missouri Constitution as amended 1970 unless otherwise noted.

      . “Please be advised that the Commission has received information relative to the existence of a library fund in Pulaski County. We have been advised that you are the only person who writes checks on this fund.
      “Our information is that a person charged with a state misdemeanor on occasions will be permitted to make a contribution to the library fund rather than pay a fine and court costs.
      “The Commission would appreciate receiving your explanation of this fund with particular details as to when the fund originated, who originated the fund, how the library fund operates, how monies from the fund are expended and for what purposes, the amount of money in the fund on January 1, 1977, and any other explanation you deem pertinent concerning this matter.
      “The Commission would appreciate having this explanation from you within 10 days from the receipt of this letter.”

      . “In response to your letter of January 4, 1977, concerning the Magistrate Court library fund, I am writing to inform you that such a fund does exist in Pulaski County.
      “It originated in August, 1974, upon suggestion of the prosecuting attorney of this county and with the consent of this court. The first contributor was a young man who drove a truck for a U. S. Mail hauler. His employer informed him that, if he was convicted of the offense with which he was charged, driving 65 mph in a 55 mph zone, he would lose his job, even though there were no points on his license and this ticket would not have added any. By agreement of the defendant, his attorney, the prosecuting attorney, and this court, the prosecuting attorney nolle prossed the ticket, and the defendant contributed $27.00 to the library fund.
      “Every contribution since that time has been made under the same or similar circumstances and with the consent of all parties involved in the action.
      “The first expenditure was a down payment on a site of Vernon’s Annotated Missouri Statutes for use in the court. Since then, expenditures have been made for a counselor’s table, books, etc. Each item has been kept and is being used in the courtroom. If you have any questions concerning expenditures, my bookkeeping may not be perfect, but you may audit or examine the checking account and determine how the monies were expended. I am the only one who deposits money or writes checks on the fund. “As of January 1, 1977, the amount in the fund was $2029.24.
      “If you have any further questions or wish to examine any of our records, please let us know.”

      . There is no explanation as to how or why interrogatories were propounded before formal charges were made, but there is no complaint concerning this procedure.


author: FINCH, Judge.

text:
    In the Matter of the ESTATE of Irene Savage VAN CLEAVE.
    No. 60573.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1978.
    Carroll J. Donohue, Alan B. Hoffman, St. Louis, for appellants.
    John D. Ashcroft, Atty. Gen., Bruce Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
   FINCH, Judge.

J. Wallace Van Cleave and Elizabeth V. Van Cleave (petitioners) filed a petition in the probate court wherein they sought a decree that they had been equitably adopted by Irene Savage Van Cleave (decedent), and that as a result they were entitled to be treated as “legally adopted” children of decedent for purposes of determining inheritance tax under § 145.060.1(1), RSMo 1969, on property inherited from decedent. The probate court denied that petition. Petitioners appealed to the circuit court where the Department of Revenue, represented by the Attorney General, entered its appearance as respondent. The circuit court affirmed the decision of the probate court and this appeal followed. We reverse and remand with directions.

Decedent was the stepmother of petitioners, having married their father Brenton Van Cleave when they were small children. Mr. and Mrs. Van Cleave had no children of their own and at her death Mrs. Van Cleave left all of her residuary estate to petitioners. In addition, an inter vivos trust which she had created provided that upon the death of decedent and her husband the principal of the trust should be distributed to petitioners. In the administration of decedent’s estate a question arose as to the rate of inheritance tax due the State of Missouri on sums to be received under the residuary clause of the will and under the inter vivos trust. The petition herein then was filed.

In its order disposing of the petition filed by petitioners, the probate court did not decide the question of whether petitioners had or had not been equitably adopted. The probate court concluded that it need not reach or decide whether they were entitled to a decree of equitable adoption because it was the probate court’s view that they would be taxed under § 145.060.1(5) rather than § 145.060.1(1) even if they had been equitably adopted.

The probate court should have decided the question of whether petitioners were entitled to a decree of equitable adoption. Only if the court concluded that they were would it reach the second issue of whether as equitably adopted children the petitioners were entitled to have inheritance tax due from them determined under § 145.-060.1(1).

As presented to us in its present posture, this appeal seeks from us an advisory opinion as to whether petitioners, if subsequently adjudicated to have been equitably adopted, are entitled to have their tax determined at the 1% rate fixed in § 145.-060.1(1). We cannot and do not render advisory opinions. State ex inf. Danforth v. Cason, 507 S.W.2d 405 (Mo. banc 1973).

We reverse and remand to the circuit court with directions that it reverse the order of the probate court and remand the case with directions that the probate court adjudicate the question of whether petitioners are entitled to their requested decree of equitable adoption.

All concur.

      . The rate of tax under § 145.060.1(1) is 1%. Under § 145.060.1(5), contended by the respondent to be the applicable section, the rate is 5%.


text:
    STATE ex rel. Ronald D. ROWLETT, Relator, v. Honorable Montgomery L. WILSON, Judge, 4th Judicial Circuit, Respondent.
    No. 60702.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1978.

      Theodore M. Kranitz, St. Joseph, for relator.
    Michael Paul Harris, St. Joseph, for respondent.
   FINCH, Judge.

Relator seeks a writ of prohibition directing respondent judge to refrain from ordering relator to answer interrogatories propounded to him in a suit for an accounting. We quash our provisional rule in prohibition previously entered.

Mrs. Audrey Thornton sued relator, her former husband, for an accounting of farm income and pasture rental from a 640 acre farm which they had owned during their marriage. Her petition alleged that under a contract executed in connection with a suit to dissolve their marriage, each party was to pay his respective share of farm expenses and receive his share of the income for 1975 and each year thereafter until the farm was sold. This occurred in 1975 but in 1976 relator, instead of notifying her of expenses as they accrued, paid them and then demanded of $5,936.46 as her share. As a result, she could not arrange with creditors to pay her share in installments. She did not have the $5,936.46 to pay relator but informed relator she would pay her half of the expenses when the sale of the farm was completed. The petition alleges that relator’s agent and attorney agreed to this and that she relied thereon and made no further effort to pay until the farm was sold in December 1976. She then sought to pay her share of expenses with interest, but relator refused to accept and refused to account to her for her share of the income.

Relator filed an answer in which he denied that Mrs. Thornton was entitled to an accounting. He alleged that under the contract between them it was agreed that each should pay one-half of the expenses and receive one-half of the profits and that if either failed to pay his share of expenses, the other would have the option of paying all of the expenses and receiving all of the income. He alleged that when Mrs. Thornton failed to pay her share of the expenses for 1976, he exercised the option of paying all of the expenses and receiving all of the income.

After the pleadings were made up, but before the trial of any of the issues, Mrs. Thornton propounded several interrogatories to relator, all of which were addressed to the details of crops planted and harvested in 1976 and which requested information as to whom the crops were sold and at what prices. Relator filed objections to these interrogatories, asserting that if the interrogatories were answered, the action for an accounting would be moot. These objections were overruled and relator was given 20 days in which to answer. He sought prohibition in the Missouri Court of Appeals, Kansas City District. That request was denied and this petition was then filed.

The issue presented is whether respondent was acting in excess of his jurisdiction or was abusing his discretion when he ordered relator to answer interrogatories which sought details as to farm income and pasture rentals before the right to an accounting had been resolved. It is relator’s contention that in an action for an accounting, the court first must hear and determine whether plaintiff therein is entitled to an accounting before.hearing evidence on and making an actual accounting between the parties. It follows, says relator, that until the right to an accounting has been established, there should be no discovery addressed to matters which relate only to an actual accounting as between the parties.

It is well established in Missouri that a court is to address and resolve the question of whether a plaintiff is entitled to an accounting before it proceeds to hear evidence relative to the actual accounting. Adams v. Adams, 294 S.W.2d 18 (Mo.1956); Ewalt v. Hudson, 223 S.W.2d 132 (Mo.App.1949); Larson v. Cresent Planing Mill Co., 218 S.W.2d 814 (Mo.App.1949); Robert v. Davis, 235 Mo.App. 974, 142 S.W.2d 1111 (1940). As some of these cases indicate, this is a rule of practice developed by the courts to spare a defendant the trouble and expense of preparing unnecessarily for and then trying an accounting which may or may not be ordered. The accounting portion of the trial is postponed until there has been an interlocutory order which establishes plaintiff’s right to an accounting.

In this proceeding relator seeks to expand that rule so that pre-trial discovery which relates to matters involved in an accounting between the parties would be forbidden until after the trial court has adjudicated plaintiff’s right to an accounting. He recognizes that no Missouri court has passed upon this question but calls our attention to cases from other states, particularly Florida, which have so held. G. H. Crawford Co. Financial Services v. Goch, 292 So.2d 54 (Fla.App.1974); Wood v. Brackett, 266 So.2d 398 (Fla.App.1972); Stanton Inv. Co. v. Simon, 255 So.2d 557 (Fla.App.1971).

We cannot conclude that the trial court was without jurisdiction to order relator to answer the interrogatories propounded to him. The court had jurisdiction of the suit for an accounting. That jurisdiction included the right to rule on objections to interrogatories.

Nor can we conclude on the record before us that the court’s action in directing relator to answer the interrogatories amounted as a matter of law to an abuse of discretion. Our practice has been to allow the trial court wide discretion in ruling upon objections to interrogatories. State ex rel. Norfolk & Western Ry. v. Dowd, 448 S.W.2d 1 (Mo.banc 1969). The trial court is in a much better position to handle these questions which ordinarily do not lend themselves to review and control at the appellate level by means of a writ of prohibition.

While we have decided to adhere to our rule as announced in Norfolk & Western, we recognize that there is merit in the Florida rule announced in the cases which relator cites. Since an accounting suit will be tried in two stages, the first a determination of the right to an accounting and the second the actual accounting if a right thereto is found to exist, it makes sense to defer an extensive discovery as to the actual accounting until the right thereto has been established. We are confident that trial courts will not require extensive discovery concerning details of an actual accounting between parties until they have determined that an accounting will be ordered.

Relator asserts that by filing a motion to dismiss the petition for prohibition at the same time he filed a return to the petition, respondent abandoned or withdrew his return and is in default. There is no merit in this contention. Respondent could file a motion to dismiss and his return at the same time without abandoning either.

Having concluded that the trial court had jurisdiction to rule on the objections to the interrogatories and that there has been no abuse of discretion as a matter of law, we quash the provisional rule in prohibition previously issued.

All concur.