author: CATINNA, Commissioner.

text:
    James B. PHELPS, Sr., et al., Appellants, v. Howard SALLEE, Commissioner, Department of Banking & Securities, et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 31, 1975.

      Larry D. Raikes, Hodgenville, William E. Johnson, Johnson, Judy & Gaines, Frankfort, for appellants.
    Thomas C. Jacobs, Gen. Counsel, Dept, of Banking & Securities, William A. Young, Young & Williams, Frankfort, for appellees.
   CATINNA, Commissioner.

This court, having reviewed its order entered in this proceeding on September 3, 1975, has concluded that the order should be withdrawn. Therefore, the order is now withdrawn and held for naught, and this opinion is substituted.

The question presented for the court’s consideration concerns the finality of an order entered by Howard T. Sallee as Commissioner of the Department of Banking and Securities on March 11, 1975.

On August 19, 1974, the appellants filed with the Department of Banking and Securities articles of incorporation of a proposed Peoples State Bank at Hodgenville. The articles of incorporation were filed with the department as required by KRS 287.050 which reads as follows:

“(1) Before filing the articles of incorporation of any financial institution mentioned in KRS 287.040, the incorporators shall present a copy of their proposed articles to the commissioner of banking and securities who shall investigate the financial standing, moral character and capability of each of the incorporators, and determine whether there is reasonable assurance of sufficient volume of business for the proposed corporation to be successful, and whether the public convenience and advantage will be promoted by the opening of the proposed corporation.
(2) If the commissioner of banking and securities determines that it is expedient and desirable to permit the proposed corporation to engage in business, he shall approve the articles of incorporation in writing, and the articles then may be filed and recorded as provided in the general corporation law.”

On August 20, 1974, the department forwarded notices of the application to other banks in the area. The notice allowed the recipient twenty days within which to file a protest “and/or request an evidentiary hearing” on the application. Local banks filed protests with the department on September 3 and September 5,1974. However, there was no request made for an evidentia-ry hearing.

On March 11, 1975, the department, acting by and through Howard T. Sallee, entered an order which recited that notice had been given, that no request for hearing had been made, and that the banking commissioner, in compliance with KRS 287.050, had caused the required investigation to be made. The order recited that as a result of the investigation the department was satisfied that there had been a compliance with statutory requirements. This order provided in part as follows:

“Accordingly, it is hereby ORDERED that the articles of incorporation of the proposed Peoples State Bank be APPROVED.
However, the issuing of an actual certificate entitling the corporation to transact a banking business pursuant to KRS 287.060 shall be subject to:
1. The obtaining of FDIC insurance; and
2. A finding by the Commissioner of the Department of Banking and Securities that KRS 287.060(3) has been complied with.”

It might be well to note at this point that the Peoples State Bank obtained FDIC insurance. The requirements of KRS 287.-060(3) entailed further consideration of transactions which could not have been performed by any of the parties at any time prior to the entry of the order of March 11, 1975. KRS 287.060(3) provides as follows:

“Oath required of directors before transacting business.—
⅜ ⅜ ⅜ # 5⅜ ⅜
(3) After the oath has been filed, if the commissioner is satisfied that all requisite laws have been complied with, he shall issue a certificate to the institution, setting out therein that such institution has subscribed and paid in the required capital, and otherwise fully complied with all pertinent laws and regulations. The certificate will entitle the institution to at once transact the business for which it was organized.”

On March 28, 1975, the objecting banks, by motion filed with the department, asked that the order of March 11 be set aside and that they be granted a hearing on the application. The appellants, after having obtained FDIC insurance, were in a position to proceed except that the commissioner, although he had approved the articles, either neglected or refused to stamp his approval on the articles and forward them to the secretary of state for recording. KRS 287.050(2). The failure or refusal of the commissioner to forward the articles to the secretary of state or to rule on the motion for a hearing continued over a period of time, despite numerous inquiries. Finally, the appellants were informed that the commissioner did not know when he would rule on the motion.

The economics of the situation required that appellants take some immediate action which was done by the filing in the Franklin Circuit Court of a petition for an order of mandamus by which the commissioner would be required to rule on the motion of the banks to set aside the prior order approving the articles. In the alternative, the court was requested to direct the commissioner to stamp his approval on the articles of incorporation and forward them to the secretary of state for filing and recording.

On June 5, 1975, the commissioner entered an order directing that a hearing be held on the question of whether the banks had been denied procedural due process by reason of a claimed inadequacy of the notice. The appellants tendered an amended complaint in an effort to enjoin all further action by the commissioner, with the exception of the stamping of his “prior” approval on the articles of incorporation and the forwarding of them to the secretary of state for filing. The banks moved to intervene and filed an intervening complaint asking that the commissioner be required to hold an evidentiary hearing on the application.

After all pleadings were filed, the trial court overruled the motion of the appellants for an order of mandamus and dismissed their complaint and amended complaint, stating that it had determined that they were not entitled to the relief sought. It then ordered that the entire proceeding be remanded to the Department of Banking and Securities with directions that it hold a public hearing on the application.

This court is of the opinion that once the order of March 11, 1975, had been duly issued by the department it became a final order upon the issue involved, and the department was without authority to thereafter modify, change, or set aside the order.

Chapter 287 of the Kentucky Revised Statutes, particularly those sections concerning the organization of a new bank, KRS 287.040-287.080, makes no provision for nor does it require that the commissioner, in performing his statutory duties, give notice of the filing of the articles of incorporation of a proposed bank for the approval mandated by KRS 287.050. There is no statutory requirement that the commissioner conduct hearings upon the application. KRS Chapter 287 does not grant to the commissioner the authority to promulgate and enforce rules, nor does the statute provide for an appeal from any order the commissioner may enter pursuant to KRS 287.-040 and 287.060.

The question of the authority of an administrative agency to change or modify an order or ruling once it has been made depends in so many instances upon the procedural requirements outlined by the statute creating the agency that there is no foundation upon which to promulgate a general rule. This court has rarely been confronted with the question because statutory requirements have usually taken care of the quandary which may be created by a subsequent change.

In a zoning case, this court noted that the statute governing the making of adjustments in a zoning plan made no provision for a rehearing. It was stated: “The law seems to be settled that in the absence of statutory authority an administrative agency has no authority to set up a rehearing procedure * ." Hennessy v. Bischoff, Ky., 240 S.W.2d 71 (1951). While the issue before the court in the proceeding was a rehearing procedure, the rule would have equal application in those instances where the administrative agency is seeking to effect a change in a prior order that it has entered. Even this rule loses some of its effectiveness when we lift from our opinion in Union Light, Heat & Power Company v. Public Service Commission, Ky., 271 S.W.2d 361 (1954), the following remarks:

“Furthermore, we know of no rule or law that denies to a court the right to revoke an order and substitute in lieu thereof a new and different one, provided the court has not lost jurisdiction over the case involved. An administrative agency unquestionably has the authority, just as has a court, to reconsider and change its orders during the time it retains control over any question under submission to it.”

The confusing factor that intertwines the power of the court with that of an administrative agency is the fact that courts lose jurisdiction over cases after the lapse of certain periods of time or the occurrence of certain events, most of which are covered either by statute or by rules of the court. Such is not true of many administrative agencies, and it is almost impossible to ascertain with any degree of certainty the' time when an administrative order becomes so final that the agency involved no longer has jurisdiction over the question involved. We might remark that even under Union Light the commissioner could not have changed his order of March 11. His order finally approved the articles of incorporation, and there remained nothing further for the commissioner to do insofar as KRS 287.050 was concerned except the ministerial act of stamping his “prior” approval on the articles so that the secretary of state would be apprised of the fact that he had performed his duty when the articles were lodged for recording.

We have concluded that even though there is a conflict in authorities an administrative agency does not have any inherent or implied power to reopen or reconsider a final decision and that such power does not exist where it is not specifically conferred upon the agency by the express terms of the statute creating the agency. Cf. 73 A.L.R.2d 939, Anno.

We make no effort to preclude the protesting banks from contesting the validity of the action of the department in approving the articles of incorporation. However, in this situation it is our opinion that the rules which generally govern a contest of such orders would apply. These protesting parties are fully privileged to file an appeal from the order of the department. In discussing the judicial review of an administrative order, this court made the following observations in American Beauty Homes Corporation v. Louisville and Jefferson County Planning and Zoning Commission, Ky., 379 S.W.2d 450 (1964):

“Basically, judicial review of administrative action is concerned with the question of arbitrariness. On this ground the courts will assume jurisdiction even in the absence of statutory authorization of an appeal. * * *. There is an inherent right of appeal from orders of administrative agencies where constitutional rights are involved, and section (2) of the Constitution prohibits the exercise of arbitrary power.”
* ⅝: ⅝ ⅜: ⅜ ⅜
“In the interest of fairness, a party to be affected by an administrative order is entitled to procedural due process. * *. Administrative proceedings affecting a party’s rights which did not afford an opportunity to be heard could likewise be classified as arbitrary.”

The protesting banks do not deny the fact that they were afforded an opportunity to protest the approval of the articles by the department. However, they claimed that the notice received really did not afford them a sufficient warning of their right to have a hearing. This court is of the opinion that the failure to hold a hearing under the statute involved in this proceeding could not of itself constitute a denial of procedural due process. Yet, the fact that the hearing was not conducted may be considered as evidence bearing upon the question of the arbitrariness of the order of the commissioner.

The judgment is reversed for further proceedings consistent with this opinion.

All concur.


source: Caselaw Access Project

author: PALMORE, Justice.

license: Public Domain

text:
    William WHITEHEAD and Helene D. Whitehead, Appellants, v. RAMADA INNS, INC., Appellee.
    Court of Appeals of Kentucky.
    Oct. 31, 1975.
    Peter Perlman, Fowler, Rouse, Measle & Bell, Lexington, for appellants.
    James S. Carroll, Carroll & Knippenberg, Lexington, for appellee.
   PALMORE, Justice.

Helene Whitehead was injured in a fall on the premises of a motel in Lexington, Kentucky. She sued for damages for her personal injuries and her husband sued for loss of consortium. At the close of their evidence the trial court directed a verdict for the motel company. They appeal from a judgment dismissing the action.

The Whiteheads were guests of the motel. They had checked out and were in the process of leaving when the accident took place. Mrs. Whitehead was ’ walking through a hallway leading to an outside door. The outside surface was lower than the motel floor to which it was connected by this hallway, and there was a short flight of steps in the corridor, consisting of three risers and two treads. In other words, in proceeding toward the exit it was necessary for a pedestrian to take three downward steps. There were no handrails. As Mrs. Whitehead approached the steps she slipped on some foreign substance on the floor and fell down the steps. She testified that she reached for a handrail in order to support herself, but of course to no avail, as there was no handrail.

In considering the motion for a directed verdict the trial court determined that there was no basis for a submissible case of negligence on the part of the motel company unless it had breached a statutory duty in failing to provide a handrail or handrails along the side or sides of the steps, but that under the building code of the City of Lexington it did not have such a duty. The trial court also expressed doubt as to whether the absence of a handrail could have had causal significance, because the place at which Mrs. Whitehead initially lost her footing was not on the steps.

It was stipulated that the 1955 edition of the National Building Code promulgated by the National Board of Fire Underwriters had been adopted by the City of Lexington and was applicable to the motel at the time of the accident. The pertinent portions of that Code were as follows:

“200 . . . Stairway means one or more flights of stairs and the necessary landings and platforms connecting them, to form a continuous and uninterrupted passage from one story to another in a building or structure.”

“604.8 Handrails.

(a) Except for steps in aisles, stairs shall have walls or well secured balustrades or guards on both sides.

(b) Such stairs when less than 44 inches in width shall have handrails on at least one side.

(c) Such stairs when required to be 44 inches or more in width shall have handrails on both sides.

(d) When the required width of a flight of stairs is 88 inches or more, intermediate handrails continuous between landings and securely supported shall be provided so that there will not be more than 66 inches between adjacent handrails.”

Observing that the language of the Code was not free of doubt, the trial court concluded that the word “stairs” as used in Sec. 604.8 was intended to refer to a flight of stairs from one story to another — in other words, a “stairway” as defined in Sec. 200. We reach the opposite conclusion, being of the opinion that the difference in terminology connotes a difference in meaning.

Sec. 604.8 provided that “stairs” must have a handrail or handrails. Under any definition of the word a flight consisting of two treads and three risers constitutes “stairs.” Cf. Barber v. Cunningham, Ky., 335 S.W.2d 882, 883 (1960). We hold that this section of the building code applied.

With respect to causation, we do not believe that the purpose of handrails adjacent to a flight of stairs is only to prevent those falls that are caused by the presence of the stairs. The danger of injury to a person who falls at or near the head of a flight of stairs is increased by its presence. No matter where his loss of footing originates, if the fall carries him onto or into the flight of stairs he is just as much entitled to the protection of a handrail as would be the case if he had first lost his balance while on the stairs.

The judgment is reversed with directions for a new trial.

All concur.

      . Though not quoted in the opinion, identical building code provisions were construed in Bennett v. Parkway Professional Center, Inc., Ky., 507 S.W.2d 694, 695 (1974), precisely as they are construed here.


author: HOLMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Charles ARRINGTON, Appellant.
    No. 49965.
    Supreme Court of Missouri, Division One.
    July 14, 1975.
    Motion for Rehearing or for Transfer to Court En Banc Denied Sept. 8, 1975.
    John C. Danforth, Atty. Gen., Clarence Thomas, Asst. Atty. Gen., Jefferson City, for respondent.
    James C. Jones, Asst. Public Defender, 22nd Judicial Circuit, David G. Dempsey, St. Louis, for appellant.
   HOLMAN, Presiding Judge.

Defendant, Charles Arrington, was found guilty of the offense of forcible rape and his punishment was fixed by the jury at imprisonment for a term of forty years. See Section 559.260, RSMo 1969, V.A.M.S. He appealed and the conviction was affirmed by this court. State v. Arrington, 375 S.W.2d 186 (Mo.1964). However, on November 12, 1974, at the request of defendant, we set aside the affirmance because defendant, an indigent, did not have counsel on appeal. The case has been briefed and argued and we now consider it anew. We again affirm.

We adopt the statement of facts in the prior opinion as follows:

“On the night of May 5, 1962, a medical student escorted a young lady to a party given in honor of one of the nurses from the school. At the conclusion of the party, about midnight, they drove to the young lady’s home in south St. Louis, where she changed from her formal attire and she intended to then drive her escort (the car was hers) to Barnes Hospital. They traveled north on Jefferson and stopped at Chouteau because of a red traffic signal. A man approached the driver’s side with a gun (the student was driving), forced his way into the car, drove it left on Chouteau, west one block, then, by two left turns, into an alley. As the car entered the alley another man, the defendant, ran toward the car. Thereafter, the defendant and his companion searched the student and the young lady and took what money and valuables they found. The defendant and his companion then each forcibly ravished the young lady while the other forced her escort at gunpoint to lie facedown on the front seat. Both the student and the young lady positively identified defendant two days later at a police station and again at the trial. The state’s evidence showed that defendant orally and in writing admitted his guilt.” 375 S.W.2d 188.

The sole contention on this appeal is that the court erred in admitting in evidence the alleged oral and written confessions of defendant. (We will hereafter refer in the singular to the written statement.) It should be stated that at the request of defendant’s counsel a voir dire hearing was held on the question of voluntariness and that no objection was made at the trial to the admission of the statement and it was not referred to in the motion for new trial. Since, on the prior appeal, we reviewed the assignments in the motion for new trial this contention was not presented for consideration at that time.

At the outset we will assume (but do not decide) that the question of the admissibility of a confession, under certain circumstances, may be raised on appeal even though not objected to at trial.

The first reason asserted by defendant for nonadmissibility is that his arrest was illegal and the confession was a product thereof. He relies primarily on the “fruit of the poisonous tree” doctrine discussed in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, even if we assume that the instant arrest was illegal it does not follow that the confession was inadmissible. State v. Owens, 486 S.W.2d 462 (Mo.1972). In State v. Fair, 467 S.W.2d 938, 943 (Mo.1971) the court stated that: “. . .in Missouri we do not exclude a confession merely because it followed an illegal arrest but retain the test of voluntariness under the totality of the circumstances as controlling in determining the admissibility of a confession which has been preceded by an illegal arrest. In the hearing on the motion to suppress where one of the grounds alleged is illegal arrest, the court should receive evidence pertaining to the validity of the arrest and consider it along with the other evidence in arriving at its decision of volun-tariness of the confession.”

Defendant also says that: “The trial court erred in permitting the jury to consider defendant’s alleged confessions without having made a determination that the confessions were voluntary.” It is understandable that no finding of voluntariness was made because there was no objection to the confession and this trial occurred prior to the decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). We have concluded, however, that defendant is in no position to raise this contention because, at the trial, his counsel deliberately waived or by-passed his opportunity to present the claim that the confession was involuntary. See Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1964). We base this ruling on the following occurrences shown in the transcript. After the written confession had been identified by a state’s witness defendant’s counsel during cross-examination sought to use it in the following manner:

“By Mr. Marshall:
“Q I want you to read the entire statement, sir.
“MR. CAHILL: Just a minute. I am not going to introduce the statement at this time by having the officer read it. I think this is improper, to have the officer read it.
“MR. CAHILL: Well, I object to the entire statement being read by the witness from the witness stand.
“THE COURT: All right. I will sustain that objection, .
“MR. MARSHALL: Since this has been marked as an exhibit as the statement of Charles Arrington, I would like to pass this to the jury and ask them to read it.
“THE COURT: How can you do that?
“MR. MARSHALL: Well, Your Honor, I think it is the statement of Charles Arring-ton.
“THE COURT: Just a minute; it hasn’t been offered in evidence.
“MR. MARSHALL: Well, I will offer it.
“THE COURT: This is not your case, Mr. Marshall; you know we are in the State’s Case, now, and you can’t offer anything in evidence until you are in your case, you see.
“MR. MARSHALL: All right.
“Q (By Mr. Marshall) Is this statement the question-and-answer statement that Charles Arrington gave?
“A Yes, it is.
“Q I am going to ask you if this question was asked him and if this answer was given:
“ ‘Q Did a car finally come up?
“ ‘A Yes, sir.
“ ‘Q What did the car look like?
“ ‘A It was a long kind, just long car.’
“MR. CAHILL: I object, Your Honor, to the reading of excerpts from this statement and asking him specifically about excerpts from the statement.
“MR. MARSHALL: Judge, they should read the whole thing or let me read excerpts. Which do you want to do? .
“MR. MARSHALL: Your Honor, this officer has testified that the statement was taken in his presence; that it was read to the defendant; that the defendant signed it. Now, I would like either to question him as to specific questions, or put the entire statement before the jury by either reading it myself, having Mr. Cahill read it, or having the officer read it. ”

Somewhat later in the trial the statement was offered in evidence by the State and read to the jury by Mr. Cahill. During his argument to the jury defendant’s counsel stated: “You can take that statement down to the jury room, if you want to, and read it.” He was reprimanded by the court for making that statement concerning a matter that is discretionary with the court. After the jury retired he made a record complaining that “. . . the Court did not mention to the jury that they had the right to request any exhibits that they might desire. I will respectfully request the Court to so instruct the jury so that they may know that any exhibits that were marked and introduced can be examined by them in their deliberations in this case.

“THE COURT: Overrule the motion.”

It seems rather obvious from the foregoing that counsel for defendant was desirous of getting the statement and its contents before the jury. We can reasonably assume that such was for the purpose of obtaining a strategic trial advantage.

While it would have no direct effect upon the decision in this case we deem it appropriate to mention that defendant has heretofore filed a Rule 27.26, V.A.M.R. motion to vacate in which he complained of the admission of the confession in violation of his constitutional rights. A hearing was held on the motion and in overruling the motion on May 19, 1971, the trial court made a finding “that the defendant’s constitutional rights were not violated by the admission of the confession.” No appeal was perfected from that judgment.

For the reasons stated the judgment should be affirmed. It is so ordered.

SEILER and BARDGETT, JJ., concur.

DONNELLY, J., not a member of division when cause was submitted.


author: SEILER, Judge.

text:
    SOUTHWESTERN BELL TELEPHONE CO. et al., Plaintiffs-Respondents, v. Paul R. FEUERSTEIN, etc., Defendant-Respondent, and Francis Howell School District et al., Intervenors-Appellants.
    Nos. 58793, 58794.
    Supreme Court of Missouri, Division No. 1.
    July 14, 1975.
    Motion for Rehearing for Transfer to Court En Banc Denied Sept. 8, 1975.

      Lawrence J. Bannes, Asst. Gen. Counsel, Laclede Gas Co., St. Louis, for plaintiff-respondent Laclede Gas Co.
    George E. Murray, Jr., St. Charles, for plaintiff-respondent Southwestern Bell Telephone Co.
    William H. Ferrell, Francis X. Duda, Keefe, Schlafly, Griesedieck & Ferrell, St. Louis, for respondent Union Electric Co.
    Robert Hickel, Ziercher, Hocker, Tzin-berg, Human & Michenfelder, Clayton, for intervenors-appellants.
   SEILER, Judge.

This case is a consolidation of two appeals brought by school districts in St. Charles County, Missouri, contesting the order of the trial court which compelled them to return certain property taxes paid under protest by plaintiffs to the county. We have jurisdiction because our decision turns on the construction to be given Sec. 137.073, RSMo 1969, V.A.M.S., a revenue law of this state, Art. V, Sec. 3, Mo.Const.1945, V.A.M.S.

The facts are presented by the stipulations of the parties. In 1972, the total assessed valuation of real property in St. Charles County was increased from the year 1971 by 12.25%. Approximately 13% of this increase resulted from reassessment, and approximately 87% of the increase resulted from new construction in the county. Plaintiffs contended at trial that the rates of levy set by the school districts in St. Charles should be reduced pursuant to Sec. 137.073, which reads as follows:

“Whenever the assessed valuation of real or personal property within the county has been increased by ten percent or more over the prior year’s valuation, either by an order of the state tax commission or by other action, and such increase is made after the rate of levy has been determined and levied by the county court, city council, school board, township board or other bodies legally authorized to make levies, and certified to the county clerk, then such taxing authorities shall immediately revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy. Where the taxing authority is a school district it shall only be required hereby to revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy, plus such additional amounts as may be necessary approximately to offset said district’s reduction in the apportionment of state school moneys due to its increased valuation. The lower rate of levy shall then be recerti-fied to the county clerk and extended upon the tax books for the current year. The term ‘rate of levy as used herein shall include not only those rates the taxing authorities shall be authorized to levy without a vote, but also those rates which have been or may be authorized by elections for additional or special purposes. No levy for public schools or libraries shall be reduced below a point that would entitle them to participate in state funds.”

The trial court held that reductions in the rates of levy set by the school districts were required. The first question presented on appeal is whether or not the increase in assessed valuation was the result of “other action” as indicated in the statute, it being stipulated that such increase was not by order of the State Tax Commission. Appellants contend that the percentage of the 12.25% increase in valuation attributable to new construction in the county is not such “other action” as would require a reduction in the rates of levy, and that the statute contemplated only the prevention of windfalls to the taxing authority which are the result of reassessment. This precise issue, however, was decided to the contrary in Missouri Pacific Railroad Co. v. Campbell, 502 S.W.2d 354 (Mo.1973). Appellants’ additional arguments, based on rules of statutory construction, are not so compelling as to warrant a reversal of the position taken in Campbell; as said therein, there is nothing in the statute to indicate that the legislature intended to exclude those increases in valuation which result from new construction in the county. Id., 502 S.W.2d at 358.

Next, the appellant school districts contend that the increase in assessed valuation was made prior to the time when the rates of levy were determined, bringing into question that portion of Sec. 137.073 which requires a revision of the rates of levy when “. . . such increase [in assessed valuation is] made after the rate of levy has been determined and levied by the school board . . . ” Although the parties attempt to establish various pertinent dates to support their respective contentions, it is not necessary to determine the exact day on which the increase in assessed valuation was “made” in this case. The intent of Sec. 137.073 is clear: where the school boards determine a rate of levy calculated to meet their estimated revenue needs, and it is thereafter found that such rate of levy will produce more revenue than that estimated because of an increase of 10% or more in assessed valuation, the levies must be adjusted downwards to produce substantially the same amount as that originally estimated. In this case, the school districts involved would receive approximately $800,000 more in tax revenues than their estimated needs if their original rates of levy were allowed to be applied to the 1972 valuation, precisely the kind of windfall which Sec. 137.073 seeks to prevent. Appellants ought not to be heard saying that their rates of levy were determined “after” the increase in valuation was made, when their original estimated needs were not based on the increased valuation.

Appellants also argue they were “aware generally” of the increase in valuation and “since most of the increase was the result of new construction, bringing more children to them, that, in setting their rates, they considered both the anticipated increase in assessed valuation and the anticipated increase in school population.” This argument was also laid to rest in Campbell, supra, at 359:

“The districts should not be permitted to repudiate the amount of their needs as stated in their official estimates and to now state that their estimates were intentionally incorrect and based upon information not recognized by the various statutes involved. Such a procedure would not only be a violation of those statutes but would tend to emasculate the specific reduction provision of § 137.073 and place its enforcement on a tenuous and speculative basis.”

Next, appellants contend that even if a reduction in the rates of levy is required, the amount of the reduction calculated by the trial court is incorrect as to three of the school districts, because the estimated needs of these districts were based on a less than 100% collection rate while the trial court assumed a 100% collection rate. We note first that the calculations made by the trial court to accomplish the rate reductions were based on those submitted by the plaintiffs and stipulated to be “true and correct” by the appellants, and it would seem that they are precluded from disputing these figures on appeal. We note further that there is no statutory authority which allows a school district to estimate and assume a rate of collection and state their needs on that basis, and again, as stated in Campbell, supra, at 359, the school districts should not be allowed to state the amounts of their needs “upon information not recognized by the various statutes involved.” Finally, there is no evidence provided by which we can determine whether the Francis Howell school district, for example, does in fact have a collection rate of 92% as alleged, or whether the Fort Zumwalt school district in fact has a 90% collection rate as alleged.

The last question raised in this case is whether or not the appellants are entitled to interest payments on the amounts paid by them to the collector under protest pursuant to Sec. 139.031. Subsection (5) of that statute provides: “No taxpayer shall receive any interest on any money paid in by him either erroneously or under protest.” The trial court, however, ordered the protested payments be refunded to the plaintiffs . . together with earned interest on such amounts up to the time they shall be withdrawn by defendant [the collector] from the banks wherein they have been deposited. . .

Section 139.031 provides that the collector shall impound in a separate fund all taxes paid under protest until the taxpayer’s action to recover the payments is determined, or until 90 days have passed without the taxpayer having commenced such an action. The statute does not say how the impounded funds should be kept, and there is nothing to prevent the collector from depositing these funds for safekeeping in an interest bearing account. If the funds are so deposited, and are subsequently ordered refunded to the taxpayer, it is reasonable that the taxpayer be entitled to the earnings therefrom. Otherwise, the state would receive a benefit from the erroneous or illegal collection of the taxpayer’s money. We believe it was the intention of the legislature in Sec. 139.031(5) that no state funds from the treasury be used to make interest payments on impounded taxes paid in by the protesting taxpayer, and thus if the impounded funds are not placed in an interest bearing account, the taxpayer would not be entitled to any interest thereon.

In this case there is no evidence indicating whether or not the taxes paid into the fund by the plaintiffs under protest were placed by the collector in an interest bearing account, but the judgment of the trial court states that “. . . judgment shall be, and hereby is, entered in favor of the below named plaintiffs in the following principal amounts together with earned interest on such amounts up to the time they shall be withdrawn by defendant from the banks wherein they have been deposited.

As stated above, the term “earned interest” in the trial court’s judgment can apply only to interest accumulated by virtue of the impounded taxes being placed in interest bearing accounts. With this meaning assigned thereto, the judgment is affirmed.

BARDGETT, J., and HIGGINS, Special Judge, concur.

HOLMAN, P. J., not sitting.

DONNELLY, J., not a member of Division when cause was submitted.

      . All statutory references are to RSMo 1969, V.A.M.S.

      . The parties have stipulated that the rate reduction prayed for by plaintiffs would not cause such a result.


author: HENRY I. EAGER, Special Commissioner. PER CURIAM:

text:
    L & R DISTRIBUTING, INC., a corporation, et al., Respondents, v. MISSOURI DEPARTMENT OF REVENUE and James R. Spradling, Director of Revenue, Appellants.
    No. 58925.
    Supreme Court of Missouri, Division 2.
    Oct. 13, 1975.
    Motion for Rehearing or Transfer Denied Dec. 8, 1975.
    Carp & Morris, Gary Morris, Clayton, Stein & Seigel, Hyman G. Stein, Charles Alan Seigel, St. Louis, for plaintiffs-respondents, L & R Distributing, Inc., et al.
    John C. Danforth, Atty. Gen., Clarence Thomas, Asst. Atty. Gen., Jefferson City, for defendants-appellants.
   HENRY I. EAGER, Special Commissioner.

This action involves the validity of Revised Rule No. 49 of the Revenue Department which, for the first time, construed § 144.020.1(2) of the Sales and Use Tax Law as imposing the tax upon the gross receipts of coin-operated devices such as pinball machines. The applicable portion of this statute is as follows: “A tax equivalent to three percent of the amount paid for admission and seating accommodations or fees paid to, or in any place of amusement, entertainment or recreation, games and athletic events”; that subdivision has been in its identical form since 1937. Plaintiffs are the owners and operators of various pinball machines and other coin-operated devices. They filed this declaratory judgment action seeking to invalidate the Revised Rule, for an injunction, and for the return of sales taxes paid under protest since May 1, 1974. Their theory is, as stated, that the statute does not impose a tax upon these proceeds and that the Rule is arbitrary and in violation of the statute; defendants, by answer, admitted all formal allegations, admitted that they had collected no sales tax on such proceeds until (after) April 30, 1974, but asserted that the Revised Rule embodied a correct construction of the statute, and that the tax was properly collected. The issue does not require a more elaborate review of the pleadings.

We have jurisdiction because the construction of a Revenue Law is required. The parties stipulated all the necessary facts, except those already admitted in the pleadings. They are, in substance, as follows: that the plaintiffs own and operate pinball machines and other coin-operated devices in St. Louis and St. Louis County, which are placed in “restaurants, confec-tionaries, bowling alleys, hotels, motels, bus stations, airports and other similar places * * * that they receive a percentage of the gross receipts; that in 1937 the Attorney General rendered an opinion which is incorporated into the stipulation as an exhibit; that the Revenue Department has issued Rules construing the statutes “and in so doing promulgated Rule No. 49 (issued in 1972 as a successor to prior rules dating back to 1934) which specifically exempted receipts derived from pinball and other slot machines (which provision, or similar provisions, was included in the said prior rules dating back to 1939)”; that copies of such Rules were attached as exhibits; that the Department did not attempt to collect a tax on such proceeds from 1937 to 1974, nor was such its practice, and that, on information, the same was true from 1933 to 1937; that effective May 1, 1974, Revised Rule No. 49 was promulgated under which defendants are attempting to collect sales taxes upon such proceeds for the use of such facilities; that on May 10, 1974, the Attorney General issued his opinion No. 68, a copy of which is incorporated into the stipulation; this upheld collection of the tax on fees paid for the use of facilities such as billiard tables, pool tables, bowling alleys “and the like”; that defendants have demanded such taxes since May 1, 1974, and plaintiffs and others have paid such taxes under protest — pursuant to § 144.700.

In the stipulation there are statements also concerning certain legislative bills which were introduced in 1939 and 1941. We prefer to discuss these in more detail later from our own examination of the legislative files. The parties stipulated that we may take judicial notice of the legislative history which, of course, we might do anyway.

The trial court filed its “Order, Judgment and Decree” granting to plaintiffs the relief prayed, and also filed an extended memorandum opinion. It declared the Revised Rule to be void insofar as it purported to tax the proceeds in question, adjudged that the statute does not impose such a tax, enjoined collection, and ordered a refund of the amounts collected. It would be somewhat superfluous to review the memorandum opinion, since it covers much of the same ground which we are required to cover here. It shows, however, a considered and studious review of the legal issues.

It is appropriate here to review the legislative history of this part of the Sales Tax Law. The Act was first enacted in 1933 and extended only for two years; it taxed: “Sales of admission tickets, cash admissions, charges and fees to places of amusement, games and athletic events.” Laws Extra Session, 1933-1934, p. 157. In 1935 the wording of the corresponding subdivision was changed to a tax on: “ * * * the amount paid, for admission and seating accommodations to any place of amusement, entertainment or recreation, games and athletic events.” Laws 1935, p. 415. In 1937 the subsection was changed to read: “A tax * * * of the amount paid, for admission and seating accommodations, or fees paid to, or in any place of amusement, entertainment or recreation, games and athletic events.” Laws 1937, pp. 552-557. As will be noted, the words “or fees paid to, or in ” were added to the 1937 Act in that subdivision. From 1937 to this time the wording has remained as it was in 1937. No one claimed that a tax was thus imposed on the proceeds of coin-operated machines until 1974. In 1937 the Attorney General issued his opinion No. 68 in which he ruled that no sales tax was imposed by this statute on fees for participation in “Billiard, Pool, Bowling or any other game for which the participants pay a fee or charge * ⅜ for the use of such equipment * * *.” While this opinion did not specifically mention coin-operated devices, it seems to have been recognized as applicable to them, until 1974. On May 10, 1974, the then Attorney General withdrew the former opinion and ruled, on the same wording of the statute, that the term “fees” was broad enough to include charges paid for the use of “billiard, pool, bowling, and similar amusement or recreational facilities * * *.” Neither the opinion nor (apparently) the request for the opinion mentioned coin-operated machines.

In 1939 legislation was introduced in the House which would have extended the Sales Tax to cover fees paid to participate in any amusement, entertainment, recreation, game or athletic event. A Committee Substitute for two of these bills (containing the extension) was adopted by the House, but was reported unfavorably by a Senate Committee and failed of adoption in the Senate. In 1941 a bill was introduced in the House which would have specifically imposed the Sales Tax upon proceeds from coin-operated devices, including pinball machines. That bill passed the House. The Senate amended the bill by striking out all that portion applying to coin-operated devices, including pinball machines (and certain other forms of amusement) and adopted the bill as amended; the House concurred in the bill as amended. Thus, the legislature has twice rejected amendments which would have extended the statute, once — to those who “participate” in amusements, games, etc., and once — to the proceeds of pinball and other coin-operated devices, specifically. There has been no change in the pertinent portion of the Act since 1937. The earlier Sales Tax Acts were effective for two years only, and consequently were completely re-enacted (with minor changes) on eleven occasions.

The trial court determined that the statute was ambiguous and that its administrative construction over a period of many years and the legislative construction (in rejecting the amendments in 1939 and 1941), might and should be controlling. Defendants insist here that the statute clearly and plainly imposes the tax; therein they argue in detail the supposed fallacies in the Attorney General’s opinion of 1937. We are not so much concerned with that opinion as we are with our own construction of the statute. Defendants also argue at considerable length that the addition of the words “or fees paid to, or in” in the 1937 Act (which they say the Attorney General ignored) must be construed as intending some extension of the Act over and above a mere charge for “admission and seating accommodations to any place of amusement,” and that the Act thus clearly taxes the proceeds in question. As a matter of fact, the 1933 Act included a tax on “charges and fees to places of amusement * * * ” (Laws Extra Session, 1933-1934, p. 157). In the 1935 Act (Laws 1935, p. 411) the word “fees” was not included in the subsection (Sec. 2(b)) imposing the tax, but it was included in the definitions under “Sale at retail” (Sec. 1(e)(1)) which embraced “Sales of admission tickets, cash admissions, charges and fees to places of amusement” etc. In its entire context we cannot say that it was the intention of the legislature in 1935 to omit “fees” paid to places of amusement, or that the 1937 Act was an affirmative extension of the tax. The use of the word “fees” in the 1937 Act was not new; and, as a matter of fact, there can be little, if any, difference between “fees” and “charges” (as used in the 1933 Act). It would not appear that the legislature intended a new subject of taxation by the use of the word “fees” in 1937, especially in view of the requirement that they be paid to or in places of amusement, etc., as we note in the next paragraph. The words “or in” added in 1937 would seem only intended to include any amount paid after admission to a place of amusement; that is not determinative here.

In any event, the use of the words “fees” and “or in” become of little importance when we consider the words immediately following. The statute, since 1937 and now, requires that the “amount” or “fees” be “paid to, or in any place of amusement, entertainment or recreation, games and athletic events”; two elements are essential, — that there be fees or charges and that they be paid in or to a place of amusement, etc. Defendants argue, somewhat casually, that the introduction of a coin-operated machine converts that place, any place it seems, into a “place of amusement or entertainment,” since it “provides entertainment.” We do not believe that the legislature intended any such broad and strained construction of a “place of amusement.” To us, the contrary seems much more reasonable, — that a hotel lobby, a restaurant, a motel, a bus station or an airport is not, within normal contemplation, a place of amusement or entertainment, and that it is not converted into such by the installation of a pinball machine. The machines are movable and frequently are moved. Thus, we are convinced that, since the fees must have been paid in a place of amusement, etc., the statute certainly does not clearly and plainly (as defendants say) impose the tax. While we are inclined to feel that the wording of the statute plainly excludes the tax, we shall give defendants the benefit of the doubt and consider the statute as though it were ambiguous, as did the trial court. As already indicated, we do not accept the argument that the 1937 opinion of the Attorney General created the ambiguity. By its very terms, as already indicated, the statute either expressly excluded the tax, or it was ambiguous; an Attorney General’s opinion does not change the status of a statute. If, perchance, the opinion had any effect on the administrative construction (which is not shown), we certainly cannot assume that it had any effect upon the later legislative action in twice rejecting affirmatively amendments to the Act which would have extended it as now sought. And defendants had the option at any time to demand the tax, and thus require a judicial construction, as they did 37 years later in 1974.

Defendants do not really suggest that the administrative and legislative constructions are not to be considered and given great weight in the construction of an ambiguous statute. To the effect that they are, see: State ex rel. Harline v. Public Service Commission, 343 S.W.2d 177 (Mo.App.1960, administrative construction); Lemasters v. Willman, 281 S.W.2d 580 (Mo.App.1955, administrative construction); State ex inf. Anderson v. St. Louis County, 421 S.W.2d 249 (Mo. banc 1967, administrative construction); State ex rel. Smithco Transport Co. v. Public Service Commission, 307 S.W.2d 361 (Mo.App.1957, administrative construction); Foremost Dairies, Inc. v. Thomason, 384 S.W.2d 651 (Mo. banc 1964, administrative construction); American Bridge Co. v. Smith, 352 Mo. 616, 179 S.W.2d 12 (1944, legislative interpretation); State ex rel. Howard Electric Co-Op. v. Riney, 490 S.W.2d 1 (Mo.1973, legislative interpretation); In re Gerling’s Estate, 303 S.W.2d 915 (Mo.1957, legislative interpretation); Three Rivers Junior College District v. Statler, 421 S.W.2d 235 (Mo. banc 1967, administrative and legislative construction). Numerous other citations might be added, but this principle is well established. Defendants cite cases to the effect that the previous interpretations should not be given weight if the construction of the statute is clearly erroneous and if the statute is clear and plain on its face. City of St. Louis v. Crowe, 376 S.W.2d 185 (Mo.1964); Lemasters, supra; State ex rel. Bell v. Phillips Petroleum Co., 349 Mo. 360, 160 S.W.2d 764 (1942); U. S. v. Missouri Pacific Railroad Co., 278 U.S. 269, 49 S.Ct. 133, 73 L.Ed. 322 (1929). The answer to that contention here, as we have already stated, is that the statute does not clearly impose the tax on coin-operated machines, but, on the contrary, if it is clear, it is clear in excluding the tax. We have considered it as ambiguous, however, and, so considered, we do give weight to the prior interpretations. If the statute had been plain and clear in defendants’ favor, it would certainly not have been interpreted to the contrary over a period of 37 years, both by the Revenue Department and the legislature. See Mummert, Sheriff v. Thunderbird Lanes et al., 107 Ariz. 244, 485 P.2d 814 (1971).

Those interpretations, both administrative and legislative, strongly support the view that such a tax is not imposed, and thus more firmly convince us that the legislature did not intend to impose the tax on coin-operated machines. The ascertainment of that intent is our ultimate goal. And no one is better qualified to find and state that intent than the legislature itself. For at least 37 years the Revenue Department claimed no such tax and, in fact, promulgated Rules excluding the tax. In two separate sessions the legislature rejected amendments which would have imposed the tax; that action is much more decisive than mere non-action, and clearly shows the legislature’s view of its own intent. Our own view of the statute is that it does not tax the proceeds of coin-operated machines, and this view is so strongly reinforced that we have no hesitancy in ruling, as we now do, that the Act does not impose a sales tax on pinball or other coin-operated machines.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by HENRY I. EAGER, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.

      . Statutory references will be to RSMo 1969, V.A.M.S., unless otherwise stated.


author: DONNELLY, Judge.

text:
    STATE of Missouri, Respondent, v. Richard THOMAS, Appellant.
    No. 58557.
    Supreme Court of Missouri, Division No. 1.
    Nov. 10, 1975.

      Allen I. Harris, Clayton, for appellant.
    John C. Danforth, Atty. Gen. by Philip M. Koppe, Asst. Atty. Gen., for respondent.
   DONNELLY, Judge.

Appellant, Richard Thomas, was convicted by a jury in the Circuit Court of St. Louis County of stealing more than fifty dollars, and was sentenced under the Habitual Criminal Act to imprisonment for five years. Following rendition of judgment and imposition of sentence on January 18, 1974, an appeal was taken to this Court.

This Court does not have jurisdiction of this case under Art. V, § 3, Const, of Missouri. We retain and decide the case for the reasons stated in Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193, 196 (Mo. banc 1972).

Appellant and another were convicted of stealing two television sets from a Katz Drug Store. A Katz employee observed the television sets being put in a trash can by two men, and being carried away. He identified appellant as one of the men involved. A second Katz employee obtained the license number of the car in which appellant was later stopped by police. This employee also identified appellant. Two police officers testified that they stopped the car in which appellant was riding. They testified that there were only two people in the car, that appellant was one of them, and that two television sets and a trash can were in the car.

All of these events occurred on May 23, 1971. Appellant was arrested that day but released after being held for twenty hours without being charged. Shortly thereafter a capias warrant was issued for appellant’s arrest. The warrant was executed nearly a year later on May 3, 1972. In the intervening year appellant had been arrested on unrelated charges five times. He had been living in St. Louis during the entire year.

On October 18, 1972, appellant was discharged at a preliminary hearing for want of probable cause. On November 22, 1972, the state procured a grand jury indictment. Appellant was arrested pursuant to the indictment January 30, 1973. He was arraigned March 12, 1973, and trial began September 10, 1973.

Appellant first asserts that he was denied due process of law because of the lapse of time between the offense and his arrest pursuant to the grand jury indictment. He contends that he was prejudiced by this delay of some 20 months because it resulted in his being unable to produce exculpatory witnesses. He states that he would have called Henry Phillips and Nelson Roberts. Henry Phillips was convicted of the crime with which appellant is charged. He was incarcerated and released before appellant was arrested on the indictment. Nelson Roberts has gone to New York State and his whereabouts are unknown. Appellant states that he could have found both these witnesses shortly after May 23, 1971. He contends that Phillips and Roberts committed the theft; that he was asleep in the car during the entire episode; and that these two witnesses would have so testified.

In United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971), the Court spoke of the problem as follows:

“Thus, the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. Cf. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution. To ac ;ommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case. It would be unwise at this juncture to attempt to forecast our decision in such cases.”

Appellant cites United States v. Kleinbard, 333. P.Supp. 699 (E.D.Pa.1971); United States v. Haulman, 288 F.Supp. 775 (E.D.Mich.1968); and Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965). In Kleinbard, the government delayed prosecution in order to protect undercover operations. During the delay a key witness was committed to a mental institution. The witness had been the liaison between defendant and the government for the sale of drugs. Defendant made a “plausible” claim of being unable to remember the events. The missing witness was shown to be important and the case was dismissed. In Hauiman, the prosecution arose from alleged violations of .banking laws. The delay was almost two years. In the intervening time six witnesses died. All were “intimately” associated with the banking operations. The court held due process was violated because: (1) there was no good reason for the government’s delay,, and (2) actual prejudice to the defendant’s ability to make his defense was shown. In Ross, defendant sold narcotics to a government agent on May 10, 1972. A complaint was filed December 5, 1972. The court found that defendant was unable to remember specific events after that lapse of time and therefore was unable to present an effective defense. The government witness was also unable to independently remember events and relied on his notes taken at the time. The government sought to excuse the delay by saying it was because there was a continuing investigation by an undercover agent which could have been jeopardized by filing a complaint. The court recognized that this was a legitimate government interest, but held that it must be balanced against the rights of the defendant. The court relied on three factors in reversing the conviction: (1) there was a purposeful delay by the government; (2) defendant made a plausible claim of inability to remember and thus showed prejudice to his defense; (3) the government case was not very strong.

In our opinion, appellant, Richard Thomas, was not denied due process in the circumstances in this case. The evidence of his guilt is substantial, a finding of actual prejudice would be conjectural, and all parties agreed at trial that the delay was not “an intentional device to gain tactical advantage over the accused.” The point is without merit.

Appellant’s second assertion is “that the court erred in failing to sustain defendant’s motion to dismiss for the reason the defendant was originally discharged at a preliminary hearing, and unless the state adduced more and additional evidence which it could not through due diligence have introduced at the first hearing the determination as to probable cause made by the grand jury was improper.”

The prevailing general rule, which we adopt, is stated in 21 Am.Jur.2d Criminal Law, § 450 (1965), at 452^453, as follows:

“If the magistrate discharges the accused after the preliminary examination, the prosecuting attorney is without authority to file an information for the offense, but the discharge * * * does not bar a prosecution of the alleged offense by indictment.”

The reasoning of the opinions written in establishing the rule is (1) that the preliminary hearing does not place the accused once in jeopardy, (2) that there is no legal connection between the preliminary hearing and a subsequent indictment, and (3) that since the state cannot appeal a dismissal at a preliminary hearing, it would frustrate public policy to deny the state a further opportunity to prosecute. Ex parte Clarke, 54 Cal. 412; People v. Grace, 88 Cal.App. 222, 228, 263 P. 306 (1928); United States v. Levy, 268 U.S. 390, 393, 45 S.Ct. 516, 69 L.Ed. 1010 (1925); Tell v. Wolke, 21 Wis.2d 613, 124 N.W.2d 655, 659 (1963); State ex rel. Fallis v. Caldwell, 498 P.2d 426 (Okl.Cr.1972); State v. Maki, 291 Minn. 427, 192 N.W.2d 811 (1971); State v. Boykin, 113 N.J.Super. 594, 274 A.2d 620 (1971); Commonwealth v. Britt, 362 Mass. 325, 285 N.E.2d 780 (1972); People v. Uhlemann, 9 Cal.3d 662, 108 Cal.Rptr. 657, 511 P.2d 609 (1973); United States v. Dobbs, 506 F.2d 445 (5th Cir. 1975); United States v. Kysar, 459 F.2d 422 (10th Cir. 1972).

Appellant next contends that Missouri grand jury procedure is unconstitutional because “it does not afford a defendant a right to be represented at a critical stage in a criminal prosecution.”

This contention was answered by Division No. 2 of this Court in State v. Tressler, 503 S.W.2d 13, 15 (Mo.1973):

“Defendant’s position is not supported by decisions of the federal courts. Directory Services, Inc. v. United States, 353 F.2d 299 (8th Cir. 1965); United States v. Scully, 225 F.2d 113 (2nd Cir. 1955); United States v. Levinson, 405 F.2d 971 (6th Cir. 1968); Perrone v. United States, 416 F.2d 464 (2nd Cir. 1969). Accordingly, we overrule the contention that absence of counsel before the grand jury violated his federally guaranteed constitutional rights and therefore entitled him to have the indictment quashed.”

Appellant’s next point is that the court could not proceed under the Habitual Criminal Act because the prosecutor told the jury on voir dire “that they would have the right to assess the penalty imposed in this case.”

This point is asserted without citation of authority and with one sentence of argument. It is not properly presented for appellate review. Rule 84.04(d); State v. Warters, 457 S.W.2d 808 (Mo.1970). In any event, there was no prosecutorial misconduct on voir dire in this case. The prosecutor told the jury that they “could be charged with the duty * * * of determining punishment.” Had the state failed to prove a prior felony conviction, the jury would have been called on to assess punishment. The prosecutor’s statements were not prejudicial to appellant.

Appellant next contends that his motions for acquittal should have been sustained for “the reason that there was no evidence that any property had, in fact, been stolen.” The motions for acquittal must be viewed on appeal in the light most favorable to the state. The state is entitled to the benefit of all reasonable inferences. State v. Wiley, 522 S.W.2d 281 at 293 (Mo. banc 1975).

Appellant cites State v. Celmars, 399 S.W.2d 145 (Mo.App.1966) for the proposition that the state must show that property was stolen as part of the corpus delicti. This is established law. However, in Cel-mars, the evidence showed that defendant was found outside- a store with several cartons of cigarettes which were in a sack with the store’s name on it, but there was no evidence to refute defendant’s claim that some other person had sold the cigarettes to him. In this case, the state produced a Katz employee (McGahan) who observed two men placing two television cartons in a trash can. McGahan later identified appellant as one of the two men. Another witness (Volz) observed the trash can being pulled out of the store as though it were very heavy. She was personally aware of the light-weight nature of the trash can. A third witness (Hotop) testified that he observed a broken hasp on the stockroom door where the televisions were stored. He further testified that when he looked in the storeroom he noticed empty spaces on the shelves that had not been there that morning. Since it was a Sunday, he knew that no television sets had been sold. This evidence supports an inference that two television sets were stolen. The point is without merit.

Appellant’s last point is that the state committed reversible error by giving the following instruction:

“You are further instructed that the Information in Lieu of Indictment contains the formal statement of the charge, but is not to be taken as any evidence of defendant’s guilt.
“The law presumes the defendant to be innocent and this presumption continues until it has been overcome by the evidence which proves the defendant’s guilt beyond a reasonable doubt; and the burden of proving the defendant’s guilt rests with the State.
“If, however, this presumption has been overcome by the evidence and the guilt of the defendant proved beyond a reasonable doubt, your duty is to convict.
“If, upon consideration of all the evidence, you have a reasonable doubt of a defendant’s guilt, you should acquit; but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant’s guilt, and not a mere possibility of the defendant’s innocence.”

Appellant objects to the definition of reasonable doubt given in the last paragraph of the instruction. He contends that it violates MAI-CR 2.20. This case was tried in September, 1973. MAI-CR became effective January 1, 1974. While the definition used in this case has been frequently criticized, it has been repeatedly approved. State v. Scott, 491 S.W.2d 514 (Mo. banc 1973). MAI-CR is prospective in its operation. State v. Tindall, 496 S.W.2d 267 (Mo.App.1973).

The judgment is affirmed.


author: LAURANCE M. HYDE, Special Commissioner. PER CURIAM:

text:
    ST. LOUIS COUNTY, Missouri, Plaintiff-Appellant, v. STATE TAX COMMISSION of Missouri, et al., Defendants-Respondents. ST. LOUIS COUNTY, Missouri, Plaintiff-Appellant, v. STATE TAX COMMISSION of Missouri, et al., Defendants-Respondents.
    Nos. 58935, 58937.
    Supreme Court of Missouri, Division No. 1.
    Nov. 10, 1975.
    Motion for Rehearing or to Transfer to Court En Banc Denied Dec. 8, 1975.

      Thomas W. Wehrle, County Counselor, George W. Lang, II, Dennis Affolter, Asst. County Counselors, Clayton, for appellant.
    Sidney W. Horwitz, Dubinsky, Duggan & Horwitz, St. Louis, for respondent.
   LAURANCE M. HYDE, Special Commissioner.

The appeals in these cases, consolidated by order of this Court, involve construction of the revenue laws of this state. St. Louis County filed a petition for review in each case after the State Tax Commission ruled in favor of Allstate and Conrad. The trial court sustained defendants’ motions to dismiss in each case. St. Louis County has appealed in each case.

Allstate and Conrad are wholesale liquor distributors located in St. Louis County and subject to Merchants Tax provided by Chapter 150 RSMo 1969 (V.A.M.S. Chapter 150). Involved herein are Conrad’s tax for 1971 and Allstate’s tax for 1972. Conrad on April 20, 1971 filed its 1971 merchant’s inventory valuation of $203,864.35 (assessed valuation subject to tax $67,955.00). The County Board of Equalization claimed an inventory valuation of $762,000.00 and an assessed valuation of $254,000.00 by letter dated July 20, 1971. At a hearing before the Board August 3, 1971 Conrad’s 1971 inventory valuation was fixed at $639,-720.00 and an assessed valuation of $213,-240.00. On appeal by Conrad, August 12, 1971, the State Tax Commission set Conrad’s assessed valuation subject to tax at $67,950.00. St. Louis County on January 7, 1972, filed Petition for Review in the St. Louis County Circuit Court from the decision of the State Tax Commission. The Commission filed a motion to dismiss on the ground that the Board’s action was invalid because it had violated § 138.120(3), requiring: “The last meeting of said board shall be held not later than the last Saturday in July of each year.” Plaintiff’s Petition for Review was dismissed for this reason.

Allstate on April 19, 1972 filed its merchant’s inventory valuation of $324,240.00 (assessed valuation subject to tax $108,-080.00). The County Board of Equalization claimed an inventory valuation of $1,587,-080.00 and an assessed valuation of $529,-030.00 by letter dated May 3, 1972. At a hearing before the Board, August 8, 1972, Allstate’s 1972 inventory valuation was fixed at $972,810.00 (assessed valuation $324,270.00). On appeal by Allstate, the State Tax Commission assessed Allstate’s valuation subject to tax at $108,080.00. St. Louis County on December 19, 1972, filed a Petition for Review in the St. Louis County Circuit Court from the decision of the State Tax Commission. This petition for review was also dismissed in the circuit court for the reason “that the St. Louis County Board of Equalization lacks jurisdiction to hold hearings after the last Saturday in July of the year involved.” Defendants’ brief says each company has paid the taxes based on their statements, pending final adjudication.

Plaintiff claims the date of last meeting of the Board of Equalization (the last Saturday in July) stated in § 138.120 is directory and not mandatory and so is not a matter affecting the jurisdiction of the Board. Plaintiff also claims that by appearing before the Board after that date and making no challenge to the propriety of its action either before the Board or in subsequent proceedings the right to objection was waived by Allstate and Conrad.

Defendant companies point out that the form letters sent to each of them by the County Board of Equalization failed to set forth a date for hearing on the proposed increase; and this was also true of the letters received stating the adjusted assessed valuation fixed by the Board. Section 138.120(2) provides: “After the board shall have raised the valuation of any statement, it shall give notice of the fact to the person, corporation or firm whose statement shall have been raised in amount, by not less than five days notice through the mail, prior to the day of hearing, specifying the amount of such raise and advising the taxpayer that he may offer objections to such increase as made.” As hereinabove noted, the final provision 138.120(3) fixed the last Saturday in July as the time the last meeting of the Board shall be held.

Although not in Chapter 138 on Equalization and Review of Tax Assessments, § 137.265 of the Chapter 137 on Assessment and Levy of Property Taxes states: “An assessment of property or charges for taxes thereon shall not be considered illegal * * on account of the assessment not being made or completed within the time required by law.” This indicates a policy against making mandatory time requirements which would invalidate taxes by failure to strictly comply with them. Such a provision was considered in Buswell v. Board of Supervisors of Alameda County, 116 Cal. 351, 48 P. 226 (1897). There a statute provided for the Board to meet on the first Monday of July for equalization of assessments to “continue in session * * * from time to time, until the business of equalization is disposed of, but not later than the third Monday of July.” A taxpayer contended the action of the Board on July 25th (after the third Monday in July) raising the valuation of his property should be declared void. The trial court did so but the Supreme Court reversed, saying it was the general rule “that the provisions as to the time upon which or within which acts are to be done by a public officer regarding the rights and duties of others are directory, unless the nature of the act or language of the legislature makes it clear that the time fixed is by way of limitation.”

In Taney County v. Empire District Electric Co., 309 S.W.2d 610 (Mo.1958), we held the provisions of §§ 138.460 and 138.470 did not require that valuation for taxes be determined at the very time and place of the hearing as contended, saying: “[E]ven if it is assumed that such was required by the statute, we think the provision is directory only and hence we conclude that an order entered after the date of the hearing would not be invalid.” We relied on the rules stated in 3 Sutherland, Statutory Construction, 3rd Ed. (1943), p. 102, as follows: “For the reason that individuals or the public should not be made to suffer for the dereliction of public officers, provisions regulating the duties of public officers and specifying the time for their performance are in that regard generally directory. A statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others is directory unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered a limitation of the power of the officer.” In the Taney County case, although the last date for the county clerk to deliver the tax books to the county collector in compliance with the statute was October 31, we held valid an order of the Tax Commission made on November 9 saying: “Ample time remained for defendant to thereafter pay the taxes so extended before they would have become delinquent on January 1, 1957.” 309 S.W.2d l.c. 615. See also State ex rel. Lindell Tower Apartments v. Guise, 357 Mo. 50, 206 S.W.2d 320, 324 (1947), holding statutory provisions for publication of two weeks’ notice of proposed increase in valuation of property for taxation by the City of St. Louis Board of Equalization are directory, not mandatory.

Plaintiff cites Hawkeye Lumber Co. v. Board of Review of City of Oskaloosa, 161 Iowa 504, 143 N.W. 563 (1913), in which the Board of Review raised the assessed value of a taxpayer’s merchandise on May 29 although the statute required its duties to be completed “not later than the first day of May.” The Court ruled: “Though the city council had passed a resolution raising the assessment within the time fixed, it plainly appears that this was not regarded as final, but that the hearing was postponed to enable a further investigation, and that final action was not taken until the 23d of May. We think the statute should be construed as directory, and that the district court acquired jurisdiction by the service of the notice of appeal within 20 days after the final adjournment of the board on May 23d. The motion to dismiss was rightly overruled.”

The City of Oskaloosa case was cited in Younker Brothers, Inc. v. Zirbel, 234 Iowa 269, 12 N.W.2d 219, 151 A.L.R. 242 (1943). In that case it was contended that the Board had no power to raise assessments on June 14,1941 because the statute precluded raising of assessments after June 1st and the taxpayer had no right of protest or appeal after June 1st. This was claimed to violate the equal protection and due process clauses of the 14th amendment to the U. S. Constitution. The Court noted “that in the provisions specifying the various times or periods, at or in which, the duties of the Board are to be performed, there are no commands that they shall not be performed at any other times”; and “[a]ny action of the Board in performing such a duty is nowhere in the statute declared to be void.” The Court said: “While the aggrieved owner or taxpayer is required * * * to file his protest between the inclusive dates of May first and May twentieth, if the original assessment is not raised, he is, of course, entitled to file a protest to the action of the Board if it increases his assessment subsequent to May thirty-first, as was done in this case.” The Court noted that the taxpayer “has taken advantage of the rights of protest and of appeal” so that “[njeither the statute nor the conduct of the taxing officials has deprived it of any of its rights under the equal protection or due process clauses of the State or Federal Constitutions.”

In 72 Am.Jur.2d, State and Local Taxation § 710, p. 48, it is said: “While statutory provisions as to the time when taxes are to be assessed have been held to be directory, there is contrary authority holding that they are mandatory. And statutory provisions as to the time when a tax shall be levied have been held to be merely directory. Statutory provisions as to the time of making a report or certification have in some instances been held mandatory, in other instances they have been ruled to be directory only.” See Annotation 151 A.L.R. 248. As to equalization and review see Annotation 151 A.L.R. 255.

As hereinabove shown, there was no great delay by the Board after the last Saturday of July in holding hearings. The hearing for Conrad was on August 3, 1971 and the hearing for Allstate was on August 8, 1972. Neither company made any objection to the jurisdiction of the Board. Each voluntarily appeared before the Board without objections to the notice they received and each proceeded with an appeal to the State Tax Commission. The appeals were taken during the month of August; Conrad’s on August 11, 1971 and Allstate’s August 11, 1972. In each case, the State Tax Commission ruled in favor of the companies and the County appealed.

Defendant relies on such eases as State ex rel. Lane v. Cornell, 351 Mo. 1, 171 S.W.2d 687 (1943); State ex rel. Wilson Chevrolet, Inc. v. Wilson, 332 S.W.2d 867 (Mo.1960), and McGraw-Edison Co. v. Curry, 485 S.W.2d 175 (Mo.App.1972). However, in those cases, the taxpayer was not given notice in time to take an appeal. In the Corneli case the issue was whether there was a valid assessment of the personal property of an estate. No notice was ever served on the executors of the meeting of the board of equalization (which made the assessment) “or that the board ever had such a meeting.” We said (171 S.W.2d l.c. 689-690) there was “no service of notice, no meeting, no opportunity to be heard. Without these, the proceeding is contrary to the statute and the assessment is void.” That was not the situation in this case. Likewise in the McGraw-Edison case, 485 S.W.2d l.c. 180, it was said: “[P]laintiff was never notified of the action of the Board until it received its tax statement in December, 1967, when the revaluation was a fait ac-compli and the effective time to seek administrative review had long since passed.” In State ex rel. Wilson Chevrolet v. Wilson, 332 S.W.2d l.c. 870, it was noted that the records of the board of equalization did not show “the giving of the statutory notice.”

The judgment of dismissal in each case is reversed and each is remanded.

PER CURIAM:

The foregoing opinion by LAURANCE M. HYDE, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.