author: PARK, Judge.

text:
    Joe W. WAKEFIELD and Marion Hughes Wakefield, Appellants, v. CITY OF SHELBYVILLE, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 10, 1978.
    Thomas Todd Davis, W. Stephen Wilborn, Wilborn & Davis Law Offices, Shelbyville, for appellants.
    C. Lewis Mathis, Jr., Mitchell, Mathis & Riggs, Shelbyville, for appellee.
    Before HOWARD, PARK and WHITE, JJ.
   PARK, Judge.

This is an appeal from a judgment of the Shelby Circuit Court annexing the territory generally known as the Town ’N Country subdivision to the City of Shelbyville, a city of the fourth class. The appellants, Joe W. Wakefield and Marion Hughes Wakefield, are resident voters within the territory to be annexed.

The legislature has provided a special procedure for annexation by fourth class cities. Cities of the other five classes are allowed to annex unincorporated territory unless litigation is initiated to oppose annexation. See KRS 81.100 and 81.110; KRS 81.140; KRS 81.190; KRS 81.230; and KRS 81.240. However, a fourth class city must itself initiate litigation as a prerequisite to annexation. KRS 81.210.

On this appeal, the appellants make the following contentions: (1) that the city failed to give the required statutory notice of the commencement of the annexation litigation; (2) that the annexation proceeding must be dismissed because of the defective notice; (3) that the city is barred for a period of two years from initiating new proceedings to annex the territory in question because of the provisions of KRS 81.-270.

I

As a prerequisite to annexation by a fourth class city, KRS 81.210 provides that the city must first describe the boundary of the territory to be annexed by ordinance. The statute then provides that this ordinance must be published “pursuant to KRS Ch. 424.” Within thirty days of the adoption and publication of the initial ordinance, the city must file a petition in the circuit court seeking a judgment annexing the territory in question. KRS 81.210 then provides:

Notice of the filing of the petition shall be given in the same manner as notice of passage of the ordinance. The circuit court shall not have jurisdiction of the proceedings unless the required publication or advertisement of the ordinance contains notice of the proposed proceedings in the court. If no defense is made at the first term of the court after the filing of the petition and notice and the court makes no order for granting future time for making defense, the court shall render judgment annexing or striking off the proposed territory.

KRS 81.220(1) provides in part:

At the first term of the circuit court or within the time fixed by the court by its order, any one or more of the resident voters of the territory proposed to be annexed or stricken off may file a defense in the proceeding .

KRS 424.140(4) provides:

Where any statute provides that, within a specified period of time after action by any government agency, unit or body, members of the public or anyone interested in or affected by such action shall or may act, and it is provided by statute that notice of such governmental action be published, the advertisement shall state the time and place when and where action may be taken, (emphasis added).

The appellants assert that the city has failed to comply with the requirements of KRS 424.140(4). We agree.

The relevant portion of the notice published by the city provided:

All persons will take notice that pursuant to KRS 81.210 et seq. the Board of Council of Shelbyville, Kentucky, adopted the ordinance hereinafter set forth on March 17, 1977, and will file petition in the Shelby Circuit Court seeking approval of annexation of the territory described in said ordinance, as required by law, on March 22, 1977. All persons desiring to protest said annexation are hereby placed on notice that protests must be filed in the Shelby Circuit Court setting forth the reasons why the territory or any part of it should not be annexed to the City.

The notice failed to make any reference to the time within which a person could file a defense against the annexation.

The trial court concluded that there had been substantial compliance with the statutes requiring notice of the petition for annexation. We disagree. This court stated in City of St. Matthews v. Beha, Ky. App., 549 S.W.2d 842, 845 (1977):

[T]he purpose of the notice of filing the petition was to inform citizens that within a certain time they had a right to respond to the petition. The notice was a form of constructive service of process and unless the statutory form was strictly complied with, the service was bad.

The notice specified that the original annexation ordinance had been adopted pursuant to KRS 81.210. However, there was nothing in the notice to indicate that the time for response to the petition for annexation was also governed by KRS 81.210 and 81.220. In the absence of any reference to the time within which a remonstrant could respond to the petition for annexation, the notice did not substantially comply with KRS 81.210 and KRS 424.140(4).

II

The appellants assert that the judgment of the circuit court must be reversed with directions to dismiss the annexation petition. The appellants rely upon that portion of KRS 81.210 that provides that the circuit court “shall not have jurisdiction” of the annexation proceedings “unless” the required notice of the proceedings has been given. We disagree. Although the judgment of the circuit court must be set aside because of the deficiencies in the notice, the annexation proceeding itself need not be dismissed. It must be noted that KRS 81.210 provides that notice must be given of two separate events. First, the statute requires that notice be given of the ordinance proposing annexation. Second, notice must be given of the commencement of the annexation proceeding in circuit court. If the notice of the ordinance proposing annexation does not substantially comply with the statutory requirements for publication, the ordinance proposing annexation is itself invalid. Vincent v. City of Bowling Green, Ky., 349 S.W.2d 694 (1961). If the initial ordinance proposing annexation is invalid because of defects in publication of the notice, then a subsequent annexation petition filed by the city must be dismissed. See City of Olive Hill v. Howard, Ky., 273 S.W.2d 387 (1954). In this case, the notice of the enactment of the ordinance proposing annexation satisfied the statutory requirements for publication.

In O’Hara v. City of South Fort Mitchell, Ky., 290 S.W.2d 455 (1956), the court held that a judgment of annexation was subject to collateral attack because the notice of the ordinance and the notice of suit both failed to comply with the statutory requirements for publication. In the absence of substantial compliance with the requirements for publication, the circuit court was without jurisdiction to render the final judgment of annexation. Not only was the notice of the annexation action defective, but the notice of the ordinance proposing annexation was also fatally defective.

In Buchanan v. City of Dayton, Ky., 363 S.W.2d 92 (1962), the City of Dayton, a city of the fourth class, sought to annex additional territory. After the passage of the ordinance proposing annexation and commencement of the annexation litigation, the City of Dayton discovered that a portion of the territory was already within the corporation limits of the City of Fort Thomas. The City of Dayton then enacted a corrective ordinance deleting the territory in question, and it amended its annexation petition to reflect the boundary change. In upholding the validity of the annexation proceedings, the court held:

The boundary corrections had been duly enacted and advertised and were not substantial in comparison with the whole area to be annexed; in the absence of a showing of any particular prejudice it was properly within the discretion of the court to permit the necessary amendment.

Id. at 93. Implicit in this holding is a recognition that the validity of the final judgment of annexation did not depend solely upon the contents of the first notice of the annexation proceedings.

The only case cited by the parties or found by the court upholding the dismissal of the annexation proceeding solely because of a defect in the publication of the notice of the annexation suit is the decision of this court in City of. St. Matthews v. Beha, supra. In that case, the circuit court had entered a summary judgment dismissing the city’s annexation petition. On appeal, the city argued that it had substantially complied with the publication requirements for notice of the annexation suit. The opinion of the court was concerned only with whether the notice substantially complied with the publication statute. The court did not consider whether the circuit court was correct in dismissing the annexation proceeding because of the defect in the notice of the annexation suit.

In City of St. Matthews v. Beha, supra, 549 S.W.2d at 845, this court emphasized that the notice of the annexation suit was a form of constructive service of process and that the service was bad unless there was strict compliance with the statutory requirements for publication. If there is a defect in service of process, the process should be quashed. However, a defect in service of process is not generally grounds for dismissing the proceeding. Smith v. Wells, 271 Ky. 373, 112 S.W.2d 49 (1937). In the absence of a showing of prejudice to the remonstrants, a defect in the publication of the notice of the commencement of the annexation proceeding should have only one consequence, namely, that no defense to the annexation proceeding need be filed until after a proper notice is published. See City of Bardstown v. Hurst, 121 Ky. 119, 28 Ky.L.Rep. 92, 89 S.W. 147, as modified on rehearing 121 Ky. 127, 28 Ky.L.Rep. 603, 89 S.W. 724 (1905). It should have no other effect.

There is nothing in the present record that would indicate that the appellants or any other remonstrants against the annexation would be prejudiced by a delay in the proper publication of the notice of the annexation proceeding. In fact, the very opposite is demonstrated by the record. At the hearings before the circuit court and on this appeal, the appellants have questioned only the procedures followed by the city, not the merits of the annexation. In fact, in an agreed statement of the case pursuant to CR 76 (now CR 75.15), the appellants have stipulated to the correctness of the circuit court’s finding that the annexation will result in substantial benefits to the city and to the territory being annexed. In a memorandum opinion, the trial judge found that the action had received considerable publicity. The trial judge also noted that the city had expended considerable sums installing sewer lines within the area to be annexed.

Although the judgment of annexation must be reversed, we conclude that the annexation proceeding itself should not be dismissed. The city should be permitted to obtain the proper service of process by publishing a notice. of the annexation suit which complies with the provisions of KRS 81.210 and KRS 424.140(4).

Ill

Because we hold that the annexation suit should not be dismissed, we do not reach the appellants’ third contention that the city is barred under KRS 81.270 from instituting further annexation proceedings for a period of two years.

The judgment of the circuit court is reversed. The circuit court shall set aside the judgment of annexation without prejudice to further proceedings in conformity with KRS 81.210 et seq. The notice shall provide that a defense to the annexation proceeding may be made within thirty days after the date of the notice unless the circuit court enters an order granting future time for making a defense. See KRS 81.210 as amended by 1976 Ky. Acts (Ex.Sess.), ch. 14, § 73.

All concur.


source: Caselaw Access Project

author: RENDLEN, Judge. BARDGETT, Judge, SEILER, Judge,

license: Public Domain

text:
    Application of Annetta Louise MAPLES.
    No. 60187.
    Supreme Court of Missouri, En Banc.
    April 10, 1978.

      John F. Michaels, Kansas City, for appellant.
    James O. Swaney, Jr., Kansas City, for respondent.
   RENDLEN, Judge.

Annetta Louise Maples applied to the Circuit Court of Jackson County for an order to open the records of her 1949 adoption under authority of § 453.120, RSMo 1969. That section provides:

“The files and records of the court in adoption proceedings shall not be open to inspection, or copy, by any person or persons, except upon an order of the court expressly permitting the same and pursuant to written application.”

She was less than one year of age when placed with her adoptive parents and not yet two when a decree was entered finalizing her adoption as the lawful child of the new parents. During her youth appellant learned of the adoption and troubled by this knowledge she eventually, when twenty-eight years of age and financially independent, moved to open the records. Appellant concedes she had not sought such information from her adoptive parents nor had she asked them to see the “adoption papers because they would be hurt.” However, risking that hurt and the possibility of disturbing their relationship, she commenced a search for her natural parents in 1973 requesting information from the Jackson County Family Children’s Services Social Agency concerning her “birth specifics.” In response the supervisor of the adoption services of the Jackson County Juvenile Court provided much background information as well as particulars concerning the health and physical condition of her natural parents and later a certified copy of the decree of adoption. Not content with this, Miss Maples applied for an order to inspect the entire record under § 453.120 and at the conclusion of the hearing that followed, the court denied her application. The cause was heard ex parte as no provision appears in the statute requiring an adversary proceeding; yet in an appropriate case, as hereinafter discussed, persons concerning whom information is sought from the records should be afforded an opportunity to participate in the proceedings.

An appeal was lodged with the Kansas City district of the Court of Appeals and transferred to this court prior to opinion under Art. V, § 11 of the Missouri Constitution of 1945 as amended. A copy of the notice of appeal was delivered to the Department of Juvenile Services of the Jackson County Circuit Court and that office determined to appear as Respondent, effectively (though not formally) representing the interests of the state, the natural parents and others whose interests might be affected.

Appellant contends: (1) Section 453.120 is unconstitutional in that it impermissibly abridges her (a) First Amendment right “to receive” information, (b) Fourteenth Amendment right to “liberty” and “privacy” and (c) Fourteenth Amendment right to “equal protection of the law.” (2) The trial court, construing the statute too narrowly, improperly denied itself authority to exercise discretion when determining the cause on its merits.

Conceding in oral argument that her challenge to the statute’s constitutionality rests principally on the trial court’s narrow construction of the section, appellant nevertheless insists that though a broader statutory interpretation might be adopted, she does not waive the constitutional issue. Respondent, on the other hand, maintains that because the application contains no reference to the constitutional issues and because they were not argued to the trial court, they are not cognizable on appeal. This argument overlooks the fact that with her application appellant filed an “affidavit” and “memorandum of points and authorities” which by reference were expressly incorporated as a part of the pleading; these sufficiently raised the constitutional issues at the trial level and respondent’s contention is without merit.

I — THE CONSTITUTIONAL ISSUES

Appellant first contends the statute is violative of her First - Amendment right to receive information. Generally it can be said the First Amendment protects the right to receive information and ideas, and as held in Martin v. Struthers, 319 U.S. 141, l.c. 147, 63 S.Ct. 862, 865, 87 L.Ed. 1313 (1943) the state may not indulge “the naked restriction of the dissemination of ideas.” There the court invalidated a city ordinance limiting distribution of handbills and advertising matters and held it was not justified by the minor nuisance caused the community in clearing litter from its streets. The court however added, “[y]et the peace, good order, and comfort of the community may imperatively require regulation of the time, place and manner of distribution.” l.c. 143, 63 S.Ct. 863. Appellant also cites Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) which struck a Georgia anti-obscenity statute and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) declaring unconstitutional a Connecticut statute forbidding the use of contraceptive devices and reversing the conviction of a licensed physician who advised his patient, a married woman, on the best contraceptive for her use. In these cases the state forbade the free flow of ideas from one person to another. Such is not our case. The information sought here is the product of the judicial process, gathered under the scheme of the adoption laws. Control of these records to promote this highly desirable system stands in contrast to the prevention of the transfer of handbills, films or medical advice from one person to another in the manner of the statutes in the cited cases. It was the state’s interference with the interchange of ideas and materials between persons that the Court invalidated in Stanley and Griswold as violative of the individual’s First Amendment rights. In the case at bar, the state’s protection of the adoption process by control of its judicial records does not rise to the level of an unconstitutional infringement of appellant’s First Amendment right to receive information but rather is the exercise of a valid state interest, balancing conflicting rights of privacy and protecting the integrity of the adoption process which could suffer if the confidentiality of the records were diminished.

Applicant next argues her right to “liberty” and “privacy” as protected by the First and Fourteenth Amendments to the United States Constitution is abridged by the statute’s interference with her “family relationships.” She relies on Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) wherein a Nebraska statute prohibiting the teaching of any modern foreign language to children prior to the ninth grade was declared unconstitutional. Also cited is Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) in which the Court held the Texas criminal law proscribing the procuring of abortion except on medical advice for the purpose of saving a mother’s life was violative of the due process clause of the Fourteenth Amendment. The Court there found the Fourteenth Amendment protects the right of privacy, including a woman’s qualified right to terminate her pregnancy, and the state could not override such right in the manner of the Texas statute; the Court added however, that the state had a legitimate interest in protecting both the pregnant woman’s health and the potentiality of human life, each of which grew and reached a compelling point at some stages during the pregnancy. Appellant’s reliance on these cases is misplaced. In Meyer, it was the flow of information from teacher to student which the state improperly abridged under the Nebraska statute. Similarly, through the Texas Criminal Statute the state invaded the private life of the pregnant mother, interrupting the free flow of medical advice from her doctor and restricting her actions under that advice. Here, something quite different occurs; the natural parents’ right of privacy is shielded by the statute but appellant insists the state strip the anonymity they believed was theirs and divulge the information received under a conditional cloak of confidentiality. It is important to note, that we quite properly are not told and need not know if the natural parents consented to the adoption or the parental rights were severed by reason of abandonment or neglect. But for whatever reason, the state at the behest of those concerned undertook through the adoption process to sever the parental relationship, award custody and establish a new relationship of parent and child. Much of the information coming into the court’s records during that process is for good reason treated as a confidence, offering a fresh start to the parties so that natural parents making this agonizing decision are assured the parent-child relationship will be completely severed, both legally and socially and may put behind the mistakes and misfortunes precipitating this fateful act. They are assisted in this traumatic experience by the knowledge that the records may be compromised only on order of court and that neither the child nor the adoptive parents may question why they consented to the adoption or the circumstances of the abandonment or neglect. If it were otherwise, the adopted child might reenter their lives with disastrous results. There must be finality for the natural parents and a new beginning; if there is a right of privacy not to be lightly infringed, it would seem to be theirs. Graphic examples of the natural «parents’ need to privacy come readily to mind. Assume an illegitimate birth followed by adoption and thereafter the natural mother marries and has children by that marriage. Should the adopted child be permitted, through state action, to present himself at the home of her new family and lay bare the tragic secrets of the past? We think not. Or consider the situation in which a married woman, whose husband is absent, (perhaps overseas in the Armed Services) and through an adulterous relationship bears a child whom she promptly places for adoption. Must not the law permit this sorry person privacy without fear of the natural child’s appearance at her family home with its potentially disastrous effect? Only an affirmative answer seems possible and the privacy must extend to the members of the family, if the natural parents are dead, who in the sound discretion of the court would be adversely affected by disclosure.

The primary concern of the state must be to protect and foster an effective scheme for adoption, thus serving the best interest of the child. This concern is well expressed in the following statement from the Family Law Quarterly, Vol. XI, Number 2, Summer 1977, pp. 196-197.

“The primary interest of the public is to preserve the integrity of the adoptive process. That is, the continued existence of adoption as a humane solution to the serious social problem of children who are or may become unwanted, abused or neglected. In order to maintain it, the public has an interest in assuring that changes in law, policy or practice will not be made which negatively affect the supply of capable adoptive parents or the willingness of biological parents to make decisions which are best for them and their children. We should not increase the risk of neglect to any child, nor should we force parents to resort to the black market in order to surrender children they can’t care for.
“The public’s interest is relevant as much to the appropriate pace of change as it is to the nature of the change. For example, even if there was general agreement that adoptees should have access to otherwise sealed records, we must still determine whether overly rapid movement in that direction would undermine the goals of adoption itself. In addition, the public interest requires that more research be done to determine the effect of policy change on the attitudes of adoptive parents and biological parents.
“No one has yet shown that decades of policy protecting the anonymity of the biological parents and the security from intrusion of the parent-child relationship after adoption have been misguided. Quite the contrary. The overwhelming success of adoption as an institution which has provided millions of children with families, and vice versa, cannot be easily attacked.
“The public has a strong interest, too, in preserving the confidential non-public nature of the process. Public attitudes toward illegitimacy and parents who neglect or abuse children have not changed sufficiently to warrant careless disclosure of the circumstances leading to adoption.
“But the public also has an interest in the mental health of children who have been adopted — in order that they not become burdens to society. Some provision for the relatively small group of adoptees whose psychological needs are compelling would appear necessary.”

In the case at bar, the adoptee has prospered socially, intellectually and financially as the child of her adopting parents and has recently married. No compelling psychological need appears suggesting a problem of “mental health” resulting from the adoption or the confidentiality of the records that would render her a “burden to society.” In addition, it should be stated that adoptive parents need and deserve the child’s loyalty as they grow older and particularly in their later years. The statute promotes a posture from which the child’s attention and emotional attachments are directed toward the relationship with the new parents and so it should be. Appellant’s contention is denied.

The final constitutional challenge concerns an alleged violation of appellant’s right to “equal protection of the law” under the Fourteenth Amendment. She insists “strict scrutiny” of this statute is required when determining its constitutionality for the reason it classifies and invidiously discriminates against her as an adoptee which she claims is a “suspect criteria” i. e., “status at birth.” Appellant erroneously equates her “adoption” at age one year and eleven months with a “status at birth” (e. g., legitimacy, sex and race) and in addition it is not clear how she relates this concept to an alleged impermissible control of adoption records. She relies on Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972) wherein the Supreme Court invalidated a Louisiana Workmen’s Compensation statute denying illegitimates compensation benefits not denied those legitimately born; and Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) in which the Supreme Court struck down, as violative of the Fifth Amendment’s due process clause, a federal statute discriminating on the basis of sex.

While the cited cases seem inappo-site and the “status at birth” argument unduly attenuated, appellant does focus on the “equal protection” issue by posing this question: “Why should I, as an adopted child, not be permitted to ask who my natural parents might be, just as a nonadopted child might so ask?” In this sense there is a difference, as the statute concerns only the adopted child, but this and other differences between the adopted and the nonadopted child which we shall hereinafter discuss, do not constitute “invidious discrimination” and denial of equal protection in the constitutional sense.

Applicant as a child has been neither abandoned nor neglected by the state. She and others like her have been given special advantage extended only children placed for adoption. At birth she had no status under this law different from other children. It was her natural parents’ duty to provide for her care and support and when they failed or refused in those responsibilities the state, through the adoptive process, provided new parents. The decree makes the child for every purpose that of the adoptive parents as completely as though born to them in lawful wedlock. All legal relationships and all rights and duties between such child and the natural parents cease, Wailes v. Curators of Central College, 363 Mo. 932, 254 S.W.2d 645 (1953), except when a natural parent is a petitioner in a step-parent adoption proceeding. The child inherits from the adoptive parents and, if a minor, is entitled to their support and care, while they in turn are capable of inheriting from him and are entitled to his services and to his custody and control. § 453.090, RSMol969. Such is not discriminatory treatment under the law, instead the state provides a system for the protection of neglected or abandoned children, as well as those given voluntarily for adoption. In developing the system, the legislature perceived a need for confidentiality of the records and the adopted child is not singled out and he alone prevented from perusing the records, instead the prohibition applies equally to the parents (adoptive or natural) or a curious interloper seeking to invade the sanctuary provided by the statute. None should be permitted to exploit the record of tragic events which necessarily find their way into many adoption proceedings. The interest of the state in protecting all concerned and in maintenance of a viable system of adoption is the manifest purpose of the statute. This system presents no invidious discrimination or denial of constitutionally protected rights and appellant’s contention is denied.

II — THE STATUTORY ISSUE

Appellant’s final contention is that the trial court, by narrowly construing the statute, unduly restricted its authority thereby stultifying the exercise of its discretion. This contention is premised on her interpretation of the trial court’s remark that it could not in any adoption case “release the information requested”, found in the court’s letter to counsel of September 27, 1976, which is in pertinent part:

“The same reasons for maintaining confidentiality in this case exist in every case in this jurisdiction. The Court was a party to a contract at the time of Termination of Parental Rights and Adoption, and to breach its part of that contract would purely and simply be avoiding its responsibility to a party who cannot now be given a voice in the present proceeding.
“The Court regrets that it cannot release the information requested.
“Petitioner’s Application is denied.” (Emphasis ours.)

No other findings of fact or conclusions of law appear, and from that letter applicant justifiably concluded the court construed the statute as a blanket prohibition against disclosure of the records under any circumstance. The statute (§ 453.120) on the other hand presupposes in a proper case that information should be released from the adoption records. To interpret the section as the trial court has done, distorts its meaning and denies the exercise of judicial discretion authorized therein.

The court on good cause shown may release such portions of an adoption proceeding record as it deems necessary to satisfy the needs of the applicant when measured against the rights of the natural parents, the adoptive parents and the societal need to protect and maintain a viable system for adoption. The closing of such records by statute, manifests a legislative intent that any opening or disclosure be with caution. The burden is applicant’s to show good cause, and only a proper showing and within the guidelines hereinafter discussed may information be made available therefrom. The disclosure of some information does not require the record be thrown open, instead, only so much information as the court adjudges necessary for the good cause shown need be disclosed. Information as to the identity and whereabouts of the natural parents, the adoptive parents or the adopted child may be released only under compelling circumstances and further the court is encouraged to obtain the consent of such persons if possible. The court through its juvenile officer or other functionary under its control may, when the factual situation justifies, institute a confidential inquiry of those concerning whom the information is sought and if waiver of the confidentiality of the records as to their “identity or whereabouts” is not obtained, such fact should be shown great deference by the court. It is difficult to perceive a case in which circumstances would warrant disclosure of that information unless such waiver is had. The persons whose waiver is sought should, if possible, be fully advised by the court of the pending action and afforded the opportunity to be represented in that proceeding, yet maintain their anonymity. The court in an appropriate case should appoint a guardian ad litem.

Clearly the court misinterpreted the statute, effectively negating the exercise of its discretion. However, plaintiff has been furnished much information concerning her natural parents including medical data and a copy of the adoption decree. On the record here, which shows little more than a thinly supported claim of a “psychological need to know”, the identity and whereabouts of the natural parents should not be disclosed unless their consent is obtained through the process hereinabove discussed. The cause is remanded for further proceedings not inconsistent with this opinion.

HENLEY, FINCH and DONNELLY, JJ., and HOUSER, Special Judge, concur.

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

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

MORGAN, C. J., not sitting.

BARDGETT, Judge,

concurring in result.

I concur in the disposition made of the constitutional issues by the principal opinion and agree that the cause should be reversed and remanded on the basis of the statute which authorizes the court to release information contained in the records. However, I do not believe an adopted adult seeking the identity of his natural parent or the natural parent seeking the identity of her natural child should have the heavy burden indicated by the principal opinion merely to get the juvenile court to inquire of the other whether they are agreeable to the information requested. The inquiry ought also go to the adoptive parents; but, after the child is emancipated, the desires of the adoptive parent to continued confidentiality would not necessarily be as weighty as the agreement of the adopted person and the natural parent that they know the identity of each other. That step, in the instant case, has not yet been taken and, in my opinion, it should be attempted before further hearings take place.

Generally, I am in agreement with the broader approach taken by Judge Seiler in his opinion concurring in result but do not, at this time, desire to indicate agreement or disagreement with the “sliding scale” announced therein because I do not clearly understand it.

I concur in result.

SEILER, Judge,

concurring in result.

I fully concur in the proposed disposition of remanding this cause for the hearing of additional evidence. However, in the exercise of the trial court’s discretion I would be less rigid and permit more flexibility as follows:

I note briefly the current fascination with the profound achievement of author Alex Haley in his recorded search for geneological roots. These sensations of the consciousness of personal history are ample testimonials to the unique anxiety of Americans in discovering our origins; for we are, with rare exception, a nation of uprooted immigrants whose family crests are little more than the remnants of graffiti on the steerage deck walls of a generation of vessels.

All of us need to know our past, not only for a sense of lineage and heritage, but for a fundamental and crucial sense of our very selves: our identity is incomplete and our sense of self retarded without a real personal historical connection.

Is there any reasonable justification for us to prevent, in perpetuity, the geneological self-discovery of those among us who were adopted?

“It is too often forgotten that an adopted child eventually grows up . . . [We need not assume] that what was in an adop-tee’s best interest as a child is also in his best interest as an adult. While confidentiality is [undoubtedly] in the best interest of the child adoptee, it is questionable whether insistence upon confidentiality remains in his best interest after he has reached adulthood . . . Adoptees often suffer from what has been termed ‘geneological bewilderment.’ As a consequence, they become preoccupied with existential concerns and a feeling of isolation and alienation due to the break in the continuity of life through the generations that their adoption represents.” Note, Sealed Records in Adoption, 21 Cath.Law. 211, 217-18 (1975).

For many adoptees, the skeletal trace of background information would be of sufficient scope. Yet others will want and need to explore further, not satisfied by the cold responses of a social agency case worker, and inquire as to the identity of their mother, their father, and the existence, if any, of brothers and sisters. See Note, Discovery Rights of the Adoptee — Privacy Rights of the Natural Parent: A Constitutional Dilemma, 4 San Fernando Valley L.Rev. 65, 68 (1975).

“It is generally assumed that a biological parent who relinquishes a child for adoption wants to forget the entire experience and start a new life. Research indicates, however, that this is often not true. Many biological mothers, for example, periodically inquire about their children’s welfare at the agencies that handled the adoption. In a recent study of the effects of sealed-record adoptions, many biological mothers expressed a desire to share with their children current information about themselves and to receive reports concerning their children’s welfare.” Note, Sealed Records in Adoption, 21 Cath.Law. 211, 226 (1975).

We are presented in these cases with competing interests: those of the adoptee, the natural parents, and the adopted parents. The statute requires a showing of “good cause” as a predicate to the opening of records, and “good cause” can in no sense be understood to be automatic.

I would require the court on good cause shown to release such portions of an adoption proceeding record as it deems necessary to satisfy the needs and interests of the applicant when measured against the interests of the natural and adopted parents. The closing of such records by statute manifests a legislative intent that any opening or disclosure be with caution. The court through its juvenile officer or other functionary under its control would institute a confidential inquiry of those concerning whom the information is sought and so seek a waiver of the confidentiality of the records as to their identity and whereabouts.

The applicable standard would be the following: Such interests as are presented by the natural parents will predominate and be most pronounced in comparison to the interests of the adoptee at the time of the adoption. Thereafter the interest of the adoptee advances, however, in contradistinction to those of the natural and adopted parents, which recede. The adoptee’s interests become of greater import as he or she grows, to the point where, as an adult, they predominate over those interests which once had a superior claim.

This sliding scale would provide the framework for a determinative calculation in the quest of adoptees for their sealed adoption records. No request should be granted automatically; each should compel a careful balancing of what may be extremely sensitive personal interests. There may be cases, for example, wherein the superior interests under the aforementioned sliding scale would nonetheless not prevail for reasons of the strength of a compelling personal objection.

Yet this standard would respect the integrity and maturity of adoptees and not treat them perpetually as children who must be shielded from the truth.

Because this cause is to be remanded for an evidentiary hearing, I concur in the result reached in the majority opinion.

      . The application was styled “In Re: Adoption of Annetta Louise Maples” but more appropriately the captions of such cases should be “In the Matter of the Application of_ (name of applicant.)”

      . Appellant relies on the plurality opinion of Frontiero v. Richardson, which stated that sex is a suspect class. The Supreme Court on three occasions since Frontiero has considered the issue of whether sex is a suspect class. These cases, Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974); Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); and Craig v. Boren, 429 U.S. 190, 97 S.Ct., 1161, 51 L.Ed.2d 574 (1976), cast substantial doubt on the precedential value of the plurality opinion in Frontiero concerning the referenced issue. (See also, Note, 42 Mo.L.Rev. 470 (1977)).

      . A. Haley, Roots (1976).

      . Our neighboring state of Kansas permits adopted persons of legal age to see the original birth certificate on request or by order of court. K.S.A. 65-2423. This has been the law in Kansas since 1951. I do not believe this statute would have endured this long if its effect were to discourage adoptions.


text:
    Application of Paul Robert GILBERT.
    No. 60188.
    Supreme Court of Missouri, En Banc.
    April 10, 1978.

      Paul R. Gilbert, pro se.
    James O. Swaney, Jr., Kansas City, for respondent.
   RENDLEN, Judge.

This appeal arose from Paul Gilbert’s pro se application in the circuit court of Jackson County to open the adoption records of appellant under authority of § 453.120, RSMo 1969, raising many of the same issues determined in the companion case of In the Matter of the Application of Annetta Louise Maples, No. 60187, 563 S.W.2d 760 (Mo.banc 1978), decided this date, here, as in Maples, the application was denied by the circuit court and an appeal taken to the Missouri Court of Appeals, Kansas City District, from which the cause was transferred prior to opinion under Art. V, § 11 of the Missouri Constitution, 1945, as amended in 1976. The dispositive facts are similar to those of Maples, with certain differences which will be noted as they appear.

Appellant, an adult, now forty-eight years of age was adopted during his first year and raised by his adoptive parents as though he was “their child since the date of adoption.” At the time of filing his application in April, 1975, Gilbert’s adoptive mother was deceased and his eighty year old father in ill health. Nothing in the transcript, briefs or oral arguments indicates his adoptive parents had consented or approved of the search for his natural parents, yet appellant stated, “[T]he adoptive parents really have no interest in preventing the Petitioner to obtain the information he now desires.” Concerning the proceeding’s effect on his natural parents, appellant states in his petition, “I assume that if my real parents are alive, that the anonymity once desired is long exhausted.” This theme is repeated in the memorandum filed with the petition as follows: “Furthermore, the biological parents may now be deceased and have no interest at all in the continuation of this secretive information,” with this added observation, “On the other hand the biological parents [sic] assurance for anonymity should not be preserved at the expense of the adoptee, for it is unjust that a child should suffer for the transgressions of his parents.” These statements indicate a casual indifference toward rights of the natural parents and implies a knowledge of improper conduct on their part, of which neither petitioner nor this court have information and quite properly should not. In oral argument, appellant stated, “I’m not trying to find them to harm them [the natural parents], I’m trying to find them out of interest, curiosity and perhaps even love.”

Without a hearing the trial court, accepting the facts alleged as true, determined that from the petition’s allegation “insufficient cause has been shown to allow the inspection as requested, such information being confidential, and that no constitutional rights of petitioner are violated by denial of the request.”

Appellant contends as error: (1) Section 453.120, RSMo 1969, impermissibly abridges his constitutional rights to receive information, his right to privacy and his rights under the equal protection clause of the Fourteenth Amendment and is thus invalid; (2) The trial court erred in denying his petition because appellant had shown good cause for inspection of the records.

The constitutional issues are essentially the same as those raised in Maples, supra, and for the reasons set forth there, appellant’s first contention as to constitutional invalidity of the statute is denied.

Appellant’s other allegation of error is that he has shown good cause for inspection of the records and the trial court erred by denying the same. As stated in Maples, 563 S.W.2d at p. 760, “The court on good cause shown may release such portions of an adoption proceeding record as it deems necessary to satisfy the needs of the applicant when measured against the rights of the natural parents, the adoptive parents and the societal need to protect and maintain a viable system for adoption.” Though the court apparently adopted the proper standard of “good cause” when judicially determining plaintiff’s petition failed to state a claim for relief, under the guidelines set forth in Maples, the court should on remand, because of the factual situation presented in this case, undertake to learn if the natural parents will waive the confidentiality of the records and consider that fact in making its final determination of the cause.

Appellant’s application alleged he is a member of the Church of Jesus Christ of Latter Day Saints and “[a] fundamental belief of that church is that in order to be saved and exalted after death every person must trace their ancestry and perform certain ordinances for their blood relatives . . I desire to perform my genealogy and trace my ancestry and I cannot so do without the names of my real mother and father.” Respondent’s brief challenges the validity of the allegations concerning the church’s “fundamental belief,” and offers contrary documentary evidence quoting from a July 12, 1973, letter of the Mormon Genealogical Society Executive Assistant in which the precise issue was addressed. It was stated there “[T]hat the Church accepts the mandate of the law and recognizes that a proper legal adoption constitutes a complete substitution of parents, and thereby the obligation of the adopted children is reverted to the adoptive parents. Because of this, the Church would not make any official stand to take an active part in opening the files that are sealed by legal process as a result of adoption.” This letter followed an earlier epistle from the “Office of the First Presidency” to the presidents of temples dated January 20, 1961, stating, “. . . the conclusion has been reached that in the future there should be no difference between the sealing of adopted children to parents and the sealing of children to their own parents. In other words, when a child is legally adopted by a couple it should be sealed to its adopted parents the same as if it were born to them; it thus becomes their child, lawfully sealed to them for time and eternity, and no mention should be made on the record of the sealing indicating that it is an adopted child.”

While we cannot consider the above recitals from respondent’s brief as evidence, we recognize such evidence could not have been a part of the record in this ex parte proceeding because no opportunity was provided respondent or others to appear or present evidence rebutting appellant’s allegations. Similarly, because the petition was denied without hearing, no evidence was offered by appellant. On remand, an opportunity should be afforded the parties to offer evidence concerning the fundamental beliefs of the church, but in receiving such evidence, the court must be mindful that evidence of one’s religious beliefs may not require opening the record if it results in preferential treatment for one professing such belief, because the granting of privilege to one religious denomination not enjoyed equally by others could in itself be constitutionally suspect. Nevertheless the fact an individual may be inspired by sincere religious beliefs would bear on the question of the good faith of appellant and in that sense be relevant to the ultimate issue for determination. Conversely, if an applicant misrepresents the tenets or beliefs of his church when advancing the reasons for his application, such would be a factor in measuring the applicant’s credibility.

Finally, appellant contends the statute is retrospective in character and as such violates minimal standards of due process, arguing that at the time he was adopted, the statute closing the adoption records had not been enacted and by its enactment his right to freely peruse the records has been impermissibly terminated. The issue was not raised in the trial court and first appears in appellant’s reply brief. Assignments of error set forth for the first time in the reply brief do not present issues for appellate review, accordingly the contention is denied. State v. Virgilito, 377 S.W.2d 361 (Mo.1964); Griggs v. Miller, 374 S.W.2d 119 (Mo.1963); In re Bierman’s Estate, 396 S.W.2d 545 (Mo.1965). However, since the cause is to be remanded for further proceedings and the issue may well be raised and confront the trial court in this case, we depart from the usual practice and state our present view. Because the statute deals only with the administration of adoption records, it does not change a vested interest, contractual or otherwise, but relates only to a mode of procedure. There is no change in the adoptive status under the decree, merely establishment of control of judicial records intended to improve the system and the decree of adoption confers no vested right upon the child to explore the judicial records of that proceeding. Thus the legislature may by statute provide new procedures governing actions to open adoption records which are commenced subsequent to such enactment. For an application of these general principles see State ex rel. Ross v. General American Life Ins. Co., 336 Mo. 829, 85 S.W.2d 68, 73-74[2] [3] (Mo. banc 1935).

The cause is remanded for further proceedings not inconsistent herewith.

HENLEY, FINCH and DONNELLY, JJ., and HOUSER, Special Judge, concur.

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

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

MORGAN, C. J., not sitting.

BARDGETT, Judge,

concurring in result.

For the reasons stated in my concurring opinion in No. 60187, In the Matter of the Application of Annetta Louise Maples, 563 S.W.2d 760, decided this day, I concur in result in the instant ease.

SEILER, Judge,

concurring in result.

For the reason stated in my concurring opinion in No. 60187, In the Matter of the Application of Annetta Louise Maples, 563 S.W.2d 760, decided this day, I also concur in result in the instant case.


author: RENDLEN, Judge. BARDGETT, Judge,

text:
    Jacob ADAMS and Glen Akers et al., Appellants, v. The CITY OF ST. LOUIS and John K. Travers, Respondents.
    No. 59745.
    Supreme Court of Missouri, En Banc.
    April 10, 1978.

      Morris J. Levin, Gerald Kretmar, St. Louis, for appellants.
    James J. Wilson, Associate City Counsel- or, St. Louis, for respondents.
   RENDLEN, Judge.

This appeal, involving construction of the revenue laws of the State and the City of St. Louis comes here under Art. V, § 3, Mo.Const. (1945) as amended. See Petrolene v. City of Arnold, 515 S.W.2d 551, 552[1] (Mo.1974). Plaintiffs, who are employees or former employees of General Motors Corporation (GM) and members of the United Auto Workers (UAW), brought their action against the City of St. Louis (City) and its Collector of Revenue to recover earnings taxes paid under protest upon Supplemental Unemployment Benefits (SUB) received by them and to enjoin future collections and prevent prosecution of those failing to pay such tax.

SUB payments had been made to plaintiffs under the terms of a collective bargaining agreement between UAW and General Motors, the tax consequence of which turns on whether payments are “compensation earned,” hence subject to the St. Louis Earnings Tax Ordinance, § 145.020, Revised Code, City of St. Louis. While the trial court denied relief and ordered plaintiff’s petition “dismissed with prejudice” no substantial dispute exists concerning the essential facts, instead the issue becomes one of construction and application of the law.

The prime grant of taxing power to the state and its political subdivisions is contained in Art. X, § 1, of the Missouri Constitution, 1945, which declares:

“The taxing power may be exercised by the general assembly for state purposes, and by counties and other political subdivisions under power granted to them by the general assembly for county, municipal and other corporate purposes.”

Requisite enabling legislation for the City’s earnings tax is found in § 92.110, RSMo 1969, providing in pertinent part:

“Tax may be levied on earnings and profits (St. Louis) Any constitutional charter city in this state which now has or may hereafter acquire a population in excess of seven hundred thousand inhabitants, ... is hereby authorized to levy and collect, by ordinance, . an earnings tax on the salaries, wages, commissions and other compensation earned by its residents; on the salaries, wages, commissions and other compensation earned by nonresidents of the city for work done or services performed or rendered in the city; . . . .” [Emphasis added.]

Under authority of the statute, the City of St. Louis adopted the following ordinance imposing a 1% tax on salaries, wages, commissions and other earnings:

“Section 145.020 (Revised Code of The City of St. Louis) — A tax for general revenue purposes of 1% is hereby imposed on (1) salaries, wages, commissions and other compensation earned after July 31, 1959, by resident individuals of the Gity, . and on (2) salaries, wages, commissions and other compensation earned after July 31, 1959, by nonresident individuals of the City, for work done or services performed or rendered in the City; . . . .” [Emphasis added.]

The enabling statute and the taxing ordinance refer only to income received as compensation for services including salaries, wages, commissions and other compensation earned. In so doing, imposition of the tax is limited to earnings of the types designated because an ordinance or statute enumerating the subjects on which it operates is generally construed “as excluding from its effects all those not expressly mentioned.” Parvey v. Humane Society of Missouri, 343 S.W.2d 678 (Mo.App.1961). In their brief defendants concede “[t]here is no question that the City of St. Louis cannot impose a tax upon income [emphasis added] as the enabling legislation . . . [does not] . authorize the imposition of such a tax.” An earnings tax of the type under consideration has been described as “. . .a species of income or excise tax. However, it is limited to earnings from work and services, [emphasis ours] and does not include other kinds of income such as interest on investments, rents, dividends, capital gains and the like.” State ex rel. Agard v. Riederer, 448 S.W.2d 577 (Mo.banc 1969). See also Carter Carburetor Corporation v. City of St. Louis, 356 Mo. 646, 203 S.W.2d 438 (banc 1947) and Walters v. City of St. Louis, 364 Mo. 56, 259 S.W.2d 377 (banc 1953). The issue is thus narrowed from the broad notion, “income” to the more limited concept, “earnings.”

Defendant’s principal argument is that benefits paid employees under the SUB plan are deferred compensation, earned by an employee “through acquisition of credit units while working but which is paid to him when he is unemployed,” and thus are earnings subject to the tax. In response, plaintiffs contend SUB benefits are not earnings, deferred or otherwise, and are not within the circumscribed taxing authority of the City. An understanding of the plan is essential to a resolution of these issues.

The SUB plan grew from UAW’s desire for a guaranteed annual wage during its 1955 contract negotiations with the nation’s principal automobile manufacturers. From that collective bargaining process emerged, not the sought-after guaranteed annual wage but an agreement by which GM would pay at least five cents per employee-hour into an independent trust fund designed to supplement the members’ unemployment payments during lay-off periods. The fund impinged on the wage offer and constituted part of an economic package, the cost of which affected resources available for other features such as wages, premiums, overtime, vacations, holidays, pension and insurance.

General Motors contributes to the fund, the employees do not and payments made cannot revert to the employer. When the fund attained a level at or above a maximum determined by the contract (a situation occurring in the late 1950’s), GM was permitted to suspend payments; however, in such situations (under a 1961 amendment) the five cents per hour payments were allocated to an alternative use. On at least one occasion, excess funds accumulated and were paid directly to employees as a year end bonus but this scheme for distribution of surplus was abandoned in 1967. Since that time the maximum level has never been reached and accordingly all employer payments have gone directly to the fund.

When the SUB plan was devised, it was not readily ascertainable whether its operation would render recipients ineligible for state unemployment benefits. To prevent that possibility a proviso was added that at least “⅜ of the states in which GM operated” must accept the “notion of supplementation,” otherwise the payments would be diverted from the fund to other fringe benefits agreed by the UAW and GM, or if no agreement could be reached, to increase the hourly wage by that amount. Of significance is the provision that no benefit payments may be made if the fund falls below a prescribed level which produces a “first-come, first-served” quality with a potential for defeating claims asserted after the fund sinks below the agreed minimum.

Eligibility for SUB payments is conditioned on laid-off employees qualifying for state unemployment benefits, registering with the state unemployment office, (this includes being available for suitable work by an employer other than GM) and employees must have been laid off for lack of work. Payments do not diminish state unemployment benefits and the length of time an employee receives payment is determined from his credit units earned. No credit units may be earned until an employee has been employed for one year though they accrue thereafter at the rate of ½ unit for each thirty-two hour (or more) work week. On the other hand, the amount or magnitude of such payments is determined by the employee’s prior earning rate.

The plan is a privately funded device providing eligible employees with a formulated percentage of their after tax wages when benefits are combined with state unemployment payments.

While it might well be argued that payments by GM into the fund constitute earnings (a point we do not decide), payments from the fund to laid-off employees are not for services rendered but instead are manifestations of the plan. Readily identifiable features distinguishing SUB payments from deferred earnings include the following: Benefit payments are made not by the employer but by an independent managing trustee free of control of General Motors; benefits are not for past services but for present unemployment; plaintiffs are not employees of the trust fund and it cannot be said that benefit payments result from any service rendered to the fund; employees have no fixed right to payments and in this respect such payments might be compared to insurance benefits paid on the ■occurrence of an event uncertain, reimbursing for a loss contemplated by a contract of insurance. By this we do not suggest the contingent right to claims is not of value, instead it appears that the predominantly contingent quality mandates that benefit payments are not earnings in the sense contemplated by the ordinance. In addition, some employees might never qualify for benefits though their “earnings” enter the fund. In contrast, some may receive benefits from time to time but in amounts less than contributions made to the fund for them.

Supportive of defendant’s contention is the fact that employees earn the five cents per hour which GM diverts from direct wage payments into the fund and if the SUB plan ends, such monies will be added to wage payments or for such other purpose as the parties may agree. Further, it is by hours worked that employees acquire a contingent interest in possible future benefit payments. But after that point the quality of “earnings” in the usual sense is lost as employees’ rights to benefit payments are contingent upon inter alia, the state’s acceptance of the principal of “supplementation,” adequacy of the fund, the employee’s accrual of credit units, lay-off for lack of work, eligibility for state unemployment benefits and a variety of fortuitous factors, wholly beyond the employee’s control.

Because the ordinance is a taxing measure, a strict interpretation of its terms is required. It is to be construed against the taxing authority and in favor of the taxpayer. Wiethop Truck Sales, Inc. v. Spradling, 538 S.W.2d 585, l.c. 587 (Mo.1976); Missouri Pacific Railroad Co. v. Campbell, 502 S.W.2d 354, 358 (Mo.1973).

The term “earnings” has been defined as “ ‘the gains of the person derived from his services or labor without the aid of capital.’ ” United Benefit Life Insurance Company of Omaha v. Zwan, 143 S.W.2d 977, 980 (Tex.Civ.App.1940). As stated in the early case of Jenks v. Dyer, 102 Mass. 235 (1869), at page 236, “the return due for . services may properly be called earnings.” Similarly, Webster’s New World Dictionary, Second College Edition 1974, defines “earnings” as “money, etc., earned by labor or service.” This court, in Newman v. Rice-Stix Dry Goods Co., 335 Mo. 572, 73 S.W.2d 264, 270 (1934), interpreting the Missouri Workmen’s Compensation Act, §§ 3305 and 3320, RSMo 1929, which provided that compensation was to be computed on the basis of “earnings which the injured person received as salary, wages, or earnings,” stated: “[ejvidently the term ‘earnings’ following ‘salary, wages’ is used as meaning earnings of the same nature as those particularly specified, viz., salary or wages; that is, remuneration to the employee for his services.” A similar language arrangement appears in the taxing ordinance at bar, to wit: that “salaries, wages, commissions and other compensation earned” are subject to the tax imposed. The ruling in Newman reinforces our view that the term “earnings” in the St. Louis ordinance is used in the limited sense of “compensation for services rendered” and that monies received as SUB benefits are dependent on so many factors other than services rendered by the employee that the process’ final product is an amalgam which cannot be considered earnings in the strict sense. While SUB benefit payments have some characteristics of income, its array of qualities, atypical of “earnings”, lead to the conclusion they are not “earnings” as that term is used in the ordinance.

Finally, our attention is directed to the actions of several administrative bodies which have considered SUB payments and made rulings thereon under other taxing laws. We have also been referred to tax rulings concerning benefit schemes other than the SUB plan, which it is argued are analogous and useful when considering the issue at bar. In this connection such rulings, though not controlling, “are entitled to respectful consideration. . . . ” Northeast Osteopathic Hospital v. Keitel, 355 Mo. 740, 197 S.W.2d 970, 974 (1946). Some examples are: (1) SUB payments have not been treated as wages by the Missouri Division of Employment Security in determining eligibility for unemployment benefits, (2) Nor have they been considered wages by the Internal Revenue Service in administering the (a) Federal Unemployment Tax Act, (b) the Federal Insurance Contributions Act, or (c) for the Collection of Income Tax at Source on Wages. See Rev.Rul. 56-249. (3) Benefits received by an employee under a health or accident insurance policy provided by his employer are not included in gross income for Federal Income Tax purposes if paid: (a) to reimburse the employee for expenses of medical care, (b) for the permanent loss or loss of use of a part of the body, and (c) certain disability payments to those who retire before sixty-five because of disability, (4) Workmen’s Compensation benefits are excluded from gross income, and (5) Gross income has been determined not to encompass unemployment benefits paid by a state agency, (6) The Missouri legislature has exempted from state income taxes unemployment benefits paid to workers under the provisions of the Missouri Employment Security Law. See § 143.121, RSMo Supp. 1977, which defines (subject to minor modifications not here pertinent) the Missouri adjusted gross income the same as the federal adjusted gross income. On the other hand, SUB plan payments have been considered taxable as income, for federal income tax purposes under Rev.Rul. 56-249. This, however, has little persuasive value here for the reasons of the distinction, previously discussed, between the terms income and earnings.

We hold that City earnings taxes paid under protest by plaintiffs on supplemental benefits received in 1974 are not subject to the provisions of § 145.020(1) and (2), Chapter 145 of the Revised Code of the City of St. Louis and that amounts so paid by plaintiffs must be refunded to them. That defendants are enjoined from making or imposing any levy or assessment of earnings tax under said ordinance on Supplemental Unemployment Benefits paid under the plan to employees of GM or from prosecuting or attempting to prosecute plaintiffs or others who receive such benefits for failure to pay such earnings tax thereon. The cause is remanded to the trial court that judgment may be entered consistent with the terms of this opinion.

MORGAN, C. J., and HENLEY, FINCH, DONNELLY and SEILER, JJ., concur.

BARDGETT, J., dissents in separate dissenting opinion filed.

BARDGETT, Judge,

dissenting.

I respectfully dissent. On the facts stated in the principal opinion, I conclude that the sums of money in issue are “earnings” as that term is used in sec. 92.110, RSMo 1969, and are “wages” or “other compensation earned” as those words are used in sec. 145.020, Rev.Code of the City of St. Louis. These are not fringe benefits that come to the employee in some form other than hard cash but payments of cash to the employees of General Motors from a fund to which General Motors made payments on the basis of work done by the employees. The employees then have the right to draw on the fund for money should certain contingencies arise. I would hold these payments are “compensation earned” and taxable under the ordinances when received by the employees.

      . Int.Rev.Code of 1954, § 3301 et seq.

      . Int.Rev.Code of 1954, § 3101 et seq.

      . Int.Rev.Code of 1954, § 3401 et seq.

      . Int.Rev.Code of 1954, § 105.

      . Int.Rev.Code of 1954, § 104(a)(1).

      . Rev.Rul. 70-280.

      . Chapter 288, RSMo 1969.


author: HOGAN, Judge.

text:
    CAMPBELL 66 EXPRESS, INC., Plaintiff-Appellant, v. THERMO KING OF SPRINGFIELD, INC., Thermo King, Inc., and American Trailers, Inc., Defendants-Respondents.
    No. 10288.
    Missouri Court of Appeals, Springfield District.
    March 10, 1978.

      Donald R. Duncan, Turner, Reid & Duncan, Springfield, for plaintiff-appellant.
    Raymond E. Whiteaker, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for defendant-respondent Thermo King of Springfield, Inc.
    Frank M. Evans, III, David W. Hall, Jr., Miller, Fairman, Sanford & Carr, Springfield, for defendant-respondent Thermo King, Inc.
    James W. Newberry, Schroff, Keeter, Glass & Newberry, P. C., Springfield, for defendant-respondent American Trailers, Inc.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   HOGAN, Judge.

This is an action for a declaratory judgment. The trial court has sustained motions to dismiss for failure to state a claim upon which relief can be granted. Plaintiff appeals.

Summarized narratively, and as material here, the plaintiff’s petition shows that it holds a certificate of convenience and necessity to operate as a common carrier, presumably by motor vehicle; defendant Ther-mo King of Springfield, Inc., is a Missouri corporation doing business in Springfield, in Greene County, Missouri. Defendant Ther-mo King, Inc., is a corporation which has a registered office and agent for service in Minneapolis, Minnesota; defendant American Trailers, Inc., has an office located in Oklahoma City, Oklahoma. Plaintiff alleges that defendants Thermo King, Inc., and American Trailers, Inc., are amenable to outstate service of process.

In April 1969, defendant American Trailers, Inc., agreed to manufacture and sell the plaintiff a semi-trailer equipped with a refrigeration unit. American Trailers, Inc., did manufacture the unit pursuant to its contract, and in performance of its contract arranged or provided for the installation of a refrigeration unit manufactured by defendant Thermo King, Inc. The unit was supplied by defendant Thermo King, Inc., and installed by defendant Thermo King of Springfield, Inc. As so manufactured, the semi-trailer was delivered to the plaintiff in Springfield.

Between December 4 and December 7, 1970, plaintiff transported a shipment of batteries and battery fluid from Joplin, Missouri, to the National Aeronautics and Space Administration at Kennedy Space Center in Florida, as plaintiff alleges “under contract between NASA and Grumman Aerospace Corporation.” In transit, the refrigeration unit “failed because of defects in its design, defects in its manufacture, and defects in its installation.” Because the refrigeration unit failed, the shipment was refused by NASA and Grumman.

Plaintiff further alleged: that when the refrigeration unit was manufactured by defendant Thermo King, Inc., when it was supplied for installation to defendant Ther-mo King of Springfield, Inc., and when it was installed pursuant to plaintiff’s contract with defendant American Trailers, Inc., it was “in a defective condition”; the semi-trailer was put to a use which could reasonably be anticipated, and, at the time the loss or damage occurred, the refrigeration unit was in substantially the same “defective condition” as when it was supplied, installed and sold. Like averments raised the issue of the refrigeration unit’s fitness for the purpose for which it was sold.

Plaintiff then averred that because of the failure of the refrigeration unit as alleged, plaintiff had “been subjected to” a claim in the amount of $200,223 for damage to the cargo it transported in December 1970; that demand had been made upon the defendants each and severally to assume responsibility for the claim asserted against the plaintiff “and for indemnity,” but the defendants had “refused to accept such responsibility.” Plaintiff alleged the prerequisites for a declaratory judgment.

Plaintiff then alleged, in substance, that Grumman Aerospace Corporation, “acting in behalf of NASA,” made a claim against plaintiff’s insurer, which the insurer denied. Copies of correspondence are attached and pleaded as exhibits. Prayer of the petition, essentially, was that plaintiff be exonerated and that the defendants each and severally be held liable in the amount of $200,223. Each defendant filed a motion to dismiss, raising several grounds therefor, including the bar of limitation.

In this court, the appeal has been briefed by the plaintiff and each party defendant. We have read the briefs and they have been helpful, but we shall not set forth and discuss the various arguments advanced. The rule we follow on this appeal, as in other court-tried matters, is that the trial court’s judgment or ruling on the motions will be sustained if the result is correct, even though the trial court has assigned an incomplete or erroneous reason for its decision. Spiking Sch. Dist. No. 71, DeKalb County v. Purported “Enlarged Sch. Dist. R-II, DeKalb County,” 362 Mo. 848, 859, 245 S.W.2d 13, 16-17[2] (banc 1952); see also Edgar v. Fitzpatrick, 377 S.W.2d 314, 318[12] (Mo. banc 1964). And, it must be borne in mind that while a motion to dismiss for failure to state a claim upon which relief can be granted, as authorized by Rule 55.27(a)(6), V.A.M.R., serves essentially the same function as a general demurrer, Baysinger v. Hanser, 355 Mo. 1042, 1043-1044, 199 S.W.2d 644, 645-646[1] (1947), and although the general test of the sufficiency of a petition against such a motion is whether the averments, accorded every fair and reasonable intendment, invoke principles of substantive law which may entitle plaintiff to relief, Boyer v. Guidicy Marble, Terrazzo & Tile Co., 246 S.W.2d 742, 744[1] (Mo.1952), still declaratory judgments are sui generis, and it is generally agreed that the trial court has a considerable measure of discretion in determining whether or not a declaratory judgment action should be entertained. State Farm Fire & Cas. Co. v. Powell, 529 S.W.2d 666, 668[3] (Mo.App.1975); O’Meara v. New York Life Ins. Co., 237 Mo.App. 409, 419, 169 S.W.2d 116, 122[4] (1943); 22 Am. Jur.2d, Declaratory Judgments, § 9, p. 845 (1965).

In our view, there are several proper grounds for denying declaratory relief here. To the extent that the plaintiff’s liability, whatever it may be, depends upon fault on its part, it is well established that it is not one of the purposes of the Declaratory Judgment Act to enable a prospective negligence action defendant to obtain a declaration of non-liability, although such an action may be entertained in the discretion of the court. See, generally, Cunningham Brothers, Inc. v. Bail, 407 F.2d 1165 (7th Cir. 1969) cert. denied 395 U.S. 959, 89 S.Ct. 2100, 23 L.Ed.2d 745 (1969).

There is another, and in our view, more compelling reason for denying declaratory relief in this case. The petition alleges that at the time the cargo was damaged plaintiff was acting in performance of its business as a common carrier. Further, it fairly appears from the exhibits attached to the petition — which are part of the petition for all purposes, Rule 55.12, V.A.M.R.; City of Joplin v. Village of Shoal Creek Drive, 434 S.W.2d 25, 31[15] (Mo.App.1968) — that when the loss or damage was sustained, plaintiff was engaged in the interstate transport of some kind of cargo manufactured or intended for use in the Apollo Space Program. We cannot know the precise nature of plaintiff’s obligation — it probably depends upon the terms of some special tariff dealing with the particular cargo — but it is readily apparent that plaintiff’s liability arises out of its failure to properly perform, or for negligent performance of an interstate contract of carriage. The so-called Carmack or Carmack-Cum-mins Amendment, 49 U.S.C. § 20(11), is made applicable to the plaintiff by 49 U.S.C. § 319, and in consequence the action is governed wholly and solely by federal statute and regulation. Missouri Pac. R. Co. v. H. Rouw Company, 258 F.2d 445, 446 (5th Cir. 1958); William A. Smith Contracting Co. v. Missouri Pac. R. Co., 481 S.W.2d 580, 583[2] (Mo.App.1972). Moreover, as we read the precedents, the cause is within the original jurisdiction of the federal district courts. American Synthetic Rubber Corp. v. Louisville & N. R. Co., 422 F.2d 462, 464-466 (6th Cir. 1970).

We do not say, nor hold, that the action could not have been entertained by the trial court, but as we have tried to make clear, the plaintiff’s ultimate liability almost surely depends upon documents filed with various federal agencies, and possibly upon specifications contained in a national defense contract. Certainly these documents would be more readily available, and the court’s interpretation of them would be more authoritative in a federal forum. It is clear since State ex rel. Chicago, R. I. & P. R. Co. v. Riederer, 454 S.W.2d 36, 39[1] (Mo. banc 1970), that the doctrine of forum non conveniens may be applied to federally created remedies by our trial courts. Here, two of the factors there enumerated — the public factor of the convenience to and burden upon the court, and the availability of another court with jurisdiction of the cause to afford plaintiff a forum for his remedy— could properly be considered in denying relief which is, in any case, discretionary. We hold the dismissal was proper and was not an abuse of discretion.

Accordingly, the judgment is affirmed.

All of the Judges concur.


text:
    STATE ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. P. R. LYNCH, Leoti A. Lynch, and Alfred N. Lynch, Defendants-Appellants.
    No. 10240.
    Missouri Court of Appeals, Springfield District.
    March 13, 1978.

      Arthur B. Cohn, Jr., Waynesville, for defendants-appellants.
    Bruce A. Ring, Jefferson City, Earl H. Schrader, Jr., Darold W. Jenkins, Independence, for plaintiff-respondent.
    Before STONE, P. J., and HOGAN and Flanigan, jj.
   HOGAN, Judge.

This is a scire facias proceeding pursuant to Rule 74.36, V.A.M.R. The judgment, in the amount of $93,140, was entered in the Circuit Court of Phelps County on March 18, 1969. The trial court has entered an order of revivor and the judgment debtors (Lynch) have appealed.

Very seldom in our appellate experience have we been presented with so fragmentary a record. All the nine-page record contains, in the final analysis, is the prae-cipe, some docket entries, extended conversation between counsel and the trial court, and an undated entry purporting to be the order of revivor. Upon this record, counsel for the appellants asks us to hold the original judgment void. The original judgment, apparently entered pursuant to § 523.045, RSMo. (1969), V.A.M.S., is not in evidence. We may add that in the exercise of discretion pursuant to Rule 81.12(c), V.A.M.R., we have attempted to supplement the record sufficiently to orderly dispose of the appeal on its merits, with insignificant success.

We have held repeatedly — in fact to the point of distraction — that while we acknowledge our duty to dispose finally of an appeal on its merits, if possible, the performance of that duty necessitates and presupposes the existence of a record upon which this court can perform its duty with some degree of confidence in the reasonableness, fairness and accuracy of its final conclusion. See, e. g., State ex rel. Mayfield v. City of Joplin, 485 S.W.2d 473, 475 (Mo.App.1972). As we noted there, 485 S.W.2d at 476, the respondent does not have the burden of sustaining the judgment entered; it comes here clothed with the presumption that the judgment is correct, and the burden is on the appellants to demonstrate error. It is an appellant’s duty to furnish an adequate record on appeal. Edwards v. Hrebec, 414 S.W.2d 361, 366[8] and authorities collated, n.7 (Mo.App.1967). This has simply not been done.

Inasmuch as no error is demonstrated on this appeal, the order of revivor is affirmed; the cause is remanded to the Circuit Court of Phelps County with direction to let execution issue forthwith.

All concur.


author: BILLINGS, Chief Judge.

text:
    In re the MARRIAGE OF Belford Joe HARMS, Petitioner-Appellant, and Nina Mary Harms, Respondent.
    No. 10924.
    Missouri Court of Appeals, Springfield District.
    March 14, 1978.
    L. Joe Scott, Poplar Bluff, for petitioner-appellant.
    Ralph R. Bloodworth, Jr., Bloodworth & Bloodworth, Poplar Bluff, for respondent.
   BILLINGS, Chief Judge.

The notice of appeal and jurisdictional statement filed in this case show on their face that we lack jurisdiction and the purported appeal must be dismissed.

The notice of appeal recites that the heirs of petitioner Belford Joe Harms seek to prosecute the appeal and is signed by an attorney as “attorney for petitioner.”

The jurisdictional statement shows that after Belford Joe Harms initiated dissolution of marriage proceedings against his wife, Nina Mary Harms, the court heard evidence of the parties on three occasions. Thereafter, a proposed decree was reviewed by the court and the court “made a specific correction with regard to paragraph number four and requested the attorney for the petitioner to prepare decree for formal signature.”

Petitioner Belford Joe Harms died December 5, 1977, and the decree of dissolution was entered December 9, 1977. On December 15, 1977, Nina Mary Harms filed a motion to set aside the decree, contending the death of petitioner Belford Joe Harms dissolved the marriage and the court did not have jurisdiction to enter the decree. The trial court sustained the motion and this appeal followed.

There are two legal methods of dissolving a marriage contract. One is by death, and the other is by a court of competent jurisdiction. If death first dissolved the contract, then there is nothing left upon which the court’s jurisdiction may operate. Young v. Young, 165 Mo. 624, 65 S.W. 1016 (1901); Heil v. Rogers, 329 S.W.2d 388 (Mo.App.1959).

In Young the trial court had orally announced he would grant the husband a divorce, award custody of children to the mother, but reserved his decision on the amount of support for the children and attorney’s fees. Before entry of record was made, the husband died. Husband’s attorneys contended a decree of divorce could be entered nunc pro tunc as of the date of the court’s announcement. The supreme court held the death of the husband before the entry of the decree abated the action and that the trial court was without jurisdiction to enter a decree dissolving the marriage. “In that race for the dissolution of the marriage bonds the ‘grim reaper’ distanced the ‘divorce mill.’ ” Young v. Young, 65 S.W. at 1017-1018.

A similar result was reached in Heil v. Rogers, 329 S.W.2d 388 (Mo.App.1959), where the husband died while the matter was under advisement. The trial court indicated a divorce decree would be entered nunc pro tunc as of the date of completion of the trial. Prohibition followed and the provisional rule was made absolute with an order to dismiss the divorce suit.

The trial court properly set aside the decree entered December 9, 1977, having lost jurisdiction on December 5, 1977, when petitioner Belford Joe Harms died.

The appeal is dismissed and the trial court ordered to dismiss the case styled Belford Joe Harms v. Nina Mary Harms, No. D-3918-76, Circuit Court of Butler County, Missouri.

All concur.


author: TITUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Kenneth Glenn LIGHT, Defendant-Appellant.
    No. 10695.
    Missouri Court of Appeals, Springfield District.
    March 14, 1978.
    John D. Ashcroft, Atty. Gen., Stanley H. Robinson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Jay V. White, Rolla, for defendant-appellant.
   TITUS, Judge.

A jury found defendant guilty of second degree burglary and stealing. In accordance with the verdict defendant was sentenced to consecutive two-year prison terms for each crime.

On appeal, defendant’s lone point relied on asserts that the conviction cannot stand because he “was convicted on the uncorroborated evidence of an accomplice . Richard Sederburg [whose] testimony was so lacking of probative force as not to amount to substantial or credible evidence . . ."

Aside from the testimony of Sederburg, the accomplice, the state’s evidence showed the following. On October 1, 1975, near 1:30 p. m., Sederburg, accompanied by a long-haired male, rented a U-Haul trailer in Rolla which was thereafter attached to a pickup truck. Around 2 p. m. the Phelps County Sheriff and a deputy saw the pickup and trailer traveling on a road about a mile and a half from the rural home of William Clinton. The officers recognized Sederburg as the driver of the pickup but could not identify his long-haired passenger. Sederburg returned the trailer to the rental agency at 3 p. m.

William Clinton departed his bucolic residence after eating lunch on October 1. When he returned at 7 p. m. he found the rear door to the house had been forced open. He also discovered that two television sets, two hi-fi speakers, $40 in cash and a completed jigsaw puzzle, which had been atop one of the televisions, were missing. One of the televisions had been in a wall cabinet and was of such size and weight that Clinton did not think it was possible for one person to have safely removed it. The telephone had been ripped from the wall requiring Clinton to go to a neighbor’s home to call the authorities and report his findings.

Subsequent to the foregoing and after ascertaining where Sederburg had rented the trailer, personnel in the sheriff’s office found a broken twig and pieces of the stolen jigsaw puzzle in the trailer rented by Sederburg. By searching in the area where the trailer had been seen in the country on October 1, the officers discovered other parts of the purloined puzzle among tire tracks and broken oak shrub. A piece of broken vegetation found growing at that location fit the broken twig recovered from the trailer.

As a state’s witness Sederburg testified that, accompanied by defendant, he rented the U-Haul trailer in Rolla on October 1, 1975, with the intent of using it to conceal property which he and defendant hoped to obtain in a burglary. Pulling the rented trailer and in company with defendant, Sederburg drove into the country and broke into a house by forcing open a rear door. After gaining entry, defendant and Seder-burg “carried out two T.V.’s and some speakers.” They also removed a jigsaw puzzle which “was on top of the T.V. . . . like a place mat.” Soon after driving from the residence with the stolen loot in tow, Sederburg met and passed the sheriff driving in the opposite direction. This encounter “shocked” the burglars and as “soon as the Sheriff went by we kinda speeded up . went over the hill, got out of the truck [and] ran off into the woods.” According to Sederburg, defendant kept running and never returned to the truck and trailer. As soon as Sederburg felt assured that the sheriff had not followed, he returned to the vehicles, unloaded the trailer and returned it to Rolla where it had been rented. This done, Sederburg returned to the unloading site, recovered the stolen property, save the puzzle which he had previously “scraped . . . out on the road,” loaded it in his truck and departed. Sederburg subsequently sold the stolen items and acknowledged that he had been told that if he testified he would get a “Lighter” sentence for his part in the burglary and stealing.

Defendant offered no evidence.

A correct statement of the rule upon which defendant predicates his point relied on is that a defendant may be convicted on the uncorroborated testimony of an accomplice [State v. Lang, 515 S.W.2d 507, 509[1] (Mo.1974); State v. Haynes, 510 S.W.2d 423, 425[3] (Mo.1974); State v. Tressler, 503 S.W.2d 13, 17[3] (Mo.1973), cert. den. 416 U.S. 973, 94 S.Ct. 2000, 40 L.Ed.2d 563 (1974); State v. Strong, 484 S.W.2d 657, 661[12] (Mo.1972); State v. Rantz, 546 S.W.2d 200, 201[2] (Mo.App.1977); State v. Doepke, 536 S.W.2d 950[1] (Mo.App.1976); State v. Matzker, 500 S.W.2d 54, 57[14] (Mo. App.1973)] unless such testimony is so lacking in probative force as to preclude it from constituting substantial evidence. State v. Morgan, 453 S.W.2d 932, 934[3] (Mo.1970); State v. Powell, 433 S.W.2d 33, 34[2] (Mo.1968); State v. Summers, 506 S.W.2d 67, 70—71[5] (Mo.App.1974); Dees v. State, 492 S.W.2d 849, 856[10] (Mo.App.1973).

Except for identifying defendant as his accomplice, all principal portions of Sederburg’s testimony were fully corroborated by other witnesses. His testimony was not self-destructive so as to take from it all probative force. Neither was it suspect or incredible. State v. Harris, 295 S.W.2d 94, 95[2] (Mo.1956); State v. Evans, 545 S.W.2d 694, 695-696[4] (Mo.App.1976). Furthermore, determination of Sederburg’s credibility as a witness was for determination by the jury. State v. Martin, 530 S.W.2d 447, 451[11] (Mo.App.1975).

The judgment is affirmed.

All concur.


author: PER CURIAM:

text:
    STATE of Missouri, Plaintiff-Respondent, v. Danny C. COOPER, Defendant-Appellant.
    No. 10708.
    Missouri Court of Appeals, Springfield District.
    March 14, 1978.

      John D. Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Robert W. Richart, Joplin, for defendant-appellant.
   PER CURIAM:

A Jasper County jury found defendant guilty of carrying a concealed weapon in violation of the first clause of § 564.610 but could not agree upon punishment. Per Rule 27.03, the court fixed punishment at three years’ imprisonment and defendant appealed.

First, we have a problem which must be resolved sua sponte. State v. McIntyre, 542 S.W.2d 793, 794 (Mo.App.1976). The verdict was returned April 26, 1977. Defendant did not ask for or receive an extension of time to file a motion for a new trial. Hence, the motion should have been filed within ten days after verdict or no later than May 6, 1977. Rule 27.20(a). However, the motion was not filed until May 12, 1977, or on the 16th day after verdict. Consequently, nothing embraced by the tardy motion was preserved for appellate review. State v. Brown, 543 S.W.2d 796[1] (Mo.App.1976); State v. Harris, 541 S.W.2d 686, 687[1] (Mo.App.1976); State v. Nelson, 526 S.W.2d 56, 57[1, 2] (Mo.App.1975). Nonetheless, if the evidence adduced was insufficient to sustain the conviction, plain error affecting substantial rights is involved and we will review the matter to see if such error is present vel non. Rule 27.20(c); State v. Asberry, 559 S.W.2d 764, 768[5] (Mo.App.1977); State v. Potter, 530 S.W.2d 268, 269[1] (Mo.App.1975).

In part, § 564.610 provides: “If any person shall carry concealed upon or about his person a dangerous or deadly weapon of any kind or description . . . , he shall, upon conviction, be punished . . . , but nothing contained in this section shall apply ... to persons traveling in a continuous journey peaceably through this state.” Of course, the burden was on the state to prove each element of the offense charged and when, as here, defendant raised the special negative defense that he was within one of the exempted classes designated in the statute, supra, the state had the further burden of proving that defendant was not engaged in the excepted activity. State v. Lewis, 491 S.W.2d 326, 327 (Mo.1973); State v. Achter, 514 S.W.2d 825, 830 (Mo.App.1974); MAI-CR 2.04, Notes on Use, p. 2-9 (10-8-73).

The State’s Case-In-Chief: On the night in question an automobile driven and solely occupied by defendant figured in a two-car accident in Joplin, Missouri. The collision occurred at the intersection of north-south Wall Avenue, a one-way street for northbound traffic, and 20th Street, an east-west thoroughfare providing for two-direction traffic. Defendant, first thought to be dead, had been thrown from the vehicle he had been driving and was found lying prone in the street with his stomach atop a revolver and five loose rounds of ammunition. He was wearing an empty gun shoulder holster concealed beneath a jacket. Defendant was taken from the scene to a hospital via ambulance.

Defendant’s Case: The 31-year-old defendant resided in Riverton, Kansas. Prior to the accident date he had borrowed $1,000 from his mother for use in a possible Arkansas real estate venture. On the morning of the occurrence, defendant departed his Kansas abode for an intended round trip to Alma and Ft. Smith, Arkansas. To protect the borrowed cash, defendant armed himself with a revolver which was carried concealed beneath his jacket in a shoulder holster. En route to Arkansas, defendant drove to Joplin and thence south to Redings Mill, Missouri, where he was joined by a lady companion who accompanied him on the trip and provided two six-packs of beer as refreshments for the sojourn. Upon leaving Redings Mill, defendant took the Pump House Road to U.S. Highway 71 which he followed into Arkansas. On the return trip from Arkansas to Kansas through Missouri, defendant delivered his passenger to her home and drove northward on Main Street in Joplin intending to turn west on 20th Street to reach his Kansas residence. However, he inadvertently drove beyond 20th Street before realizing his error and at 19th Street (one block north of 20th Street), defendant turned west, traveled to Wall Avenue (two blocks west of Main Street) and thence south one block to 20th Street where the accident occurred.

The State’s Rebuttal Evidence: Two Joplin policemen had questioned defendant in the hospital emergency room shortly after the casualty. One recounted that defendant said he thought he had been traveling south on Joplin Street (one block west of Main Street) from 7th Street before the collision occurred. The other said he had conversed with defendant “[t]o an extent” but was not asked what had been said. With a sense of divination uniquely possessed by occasionally blessed members of the constabulary, the second officer was permitted to opine that defendant, though obviously injured, appeared to be intoxicated. Defendant admittedly had never been charged with operating the motor vehicle with ten-hundredths of one percent or more alcohol in his blood (§ 564.439) or with driving while intoxicated (§ 564.440) or with having a dangerous weapon “in his possession when intoxicated.” See note 2.

By taking judicial notice of highway routes between municipal corporations in this state and places and distances between locations in this and adjoining states [State v. Tyler, 187 Kan. 58, 353 P.2d 801, 803[1] (1960); United States v. Hortze, 179 F.Supp. 913, 915[2] (S.D.Cal.1959); State v. Saunders, 245 N.C. 338, 95 S.E.2d 876, 879 (1957); Fields v. State, 85 Okl.Cr. 439, 188 P.2d 231, 238[17] (1947); People v. Henry, 131 Cal.App. 82, 21 P.2d 672, 675[2] (1933); Harper Furniture Co. v. Southern Express Co., 144 N.C. 639, 57 S.E. 458, 459 (1907)] we know that the principal and most practicable highway route to follow in traveling from Riverton, Kansas, to Alma and Ft. Smith, Arkansas, is via Joplin, Missouri, to gain access to U.S. Highway 71 which travels from Joplin to the Arkansas cities; that Redings Mill, Missouri, lies directly south of Joplin via Joplin’s Main Street; and that U.S. Highway 71 may be reached by driving from Joplin to Redings Mill and thence to the highway with only minor deviations from other possible routes.

First Question : Was defendant engaged in a “continuous journey” through Missouri at the time of the occurrence which led to the discovery of his being armed? Our answer is “Yes.” While there is a dearth of Missouri authority on the subject, we have received guidance from the courts of Texas in their interpretation of a statute which permitted traveling persons to carry concealed weapons “as long as they continue their journey.” See, Navarro v. State, 50 Tex.Cr.R. 326, 96 S.W. 932 (1906). For example: A traveler is not required to take the shortest or most practical route to be qualified for the exemption. Davis v. State, 135 Tex.Cr.R. 659, 122 S.W.2d 635, 636[2] (1938). Accord, Granger v. State, 50 Tex.Cr.R. 488, 98 S.W. 836, 837 (1906). Likewise, neither will a temporary cessation of or turning aside from the journey to obtain provisions [Price v. State, 34 Tex.Cr.R. 102, 29 S.W. 473 (1895)], to conduct some legitimate business incident to the journey [Campbell v. State, 58 Tex. Cr.R. 349, 125 S.W. 893, 894[3] (1910)], to eat a meal [Kemp v. State, 116 Tex.Cr.R. 90, 31 S.W.2d 652, 653[4, 5] (1930)], to purchase medicine and secure the services of a doctor for a sick child [Irvin v. State, 51 Tex.Cr.R. 52, 100 S.W. 779, 780[4, 5] (1907)], or to return to the starting point to obtain a forgotten item [Goodwin v. State, 55 Tex. Cr.R. 179,115 S.W. 1184 (1909)] deprive one of the status of a traveler in a continuous journey, provided the journey is in good faith pursued. Grant v. State, 112 Tex.Cr.R. 20, 13 S.W.2d 889, 890[1] (1928), upon rehearing granted (1929). We do not agree, as suggested in the state’s brief, that a slight departure from an exact direct course in a trip to obtain the association of a traveling companion serves to disengage one from a continuous journey. Also, as motorists who on occasion have temporarily and inadvertently become travelers along unintended paths, we do not interpret the mishap of missing a turn as constituting such a deviation as to effectively extract a driver from the status of a continuing voyager.

Second Question : Albeit we have concluded that defendant was engaged in a “continuous journey,” we must additionally determine whether he was also traveling “peaceably.” We believe he was. “Peaceably” is defined as “in a peaceable manner,” i. e., “not quarrelsome” (Webster’s New World Dictionary of the American Language, College Ed., p. 1075) or “in a peaceable and friendly manner; without contention or strife.” Webster’s Third New International Dictionary of the English Language, Unabridged, p. 1660. It has also been said that “[o]ne is peaceable who is not quarrelsome” [Richardson v. State, 94 Tex. Cr.R. 616, 253 S.W. 273, 277[8] (1923)] and that the “carrying of arms in a quiet, peaceable, and orderly manner, concealed on or about the person carrying them, is not a breach of the peace nor does it tend to a breach of the peace.” 12 Am.Jur.2d, Breach of Peace, Etc., § 8, at p. 670; Judy v. Lashley, 50 W.Va. 628, 41 S.E. 197, 200[3] (1902); Roberson v. State, 43 Fla. 156, 29 So. 535, 538 (1901). As observed in Note 2, supra, § 564.610 condemns the possession of weapons by intoxicated persons provided they are not traveling in a continuous journey peaceably through the state. In other words, and assuming defendant’s intoxication for argument’s sake, the fact of intoxication, if so, would be of no moment in a prosecution under § 564.610 unless the intoxication was accompanied by unpeaceable conduct. There was no showing that defendant was not peaceable in his continuous journey through this state.

For the reasons stated the judgment is reversed and defendant is ordered discharged.

All concur.

      . References to statutes and rules are to RSMo 1969, V.A.M.S., and to Missouri Supreme Court Rules, V.A.M.R.

      . Sec. 564.610, supra, also prohibits a person from having a dangerous and deadly weapon “in his possession when intoxicated” but, as previously noted, the prohibition does not apply “to persons traveling in a continuous journey peaceably through this state.”

      . We may, in addition, take cognizance of such information as may be ascertained from a judicially noticed official state highway map. In re Village of Lone Jack, 419 S.W.2d 87, 91[6] (Mo.banc 1967); Belle St. Bank v. Ind. Com'n Div. of Emp. Sec., 547 S.W.2d 841, 843 n.2 (Mo.App.1977).