author: PER CURIAM.

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Norbert J. DeCAMILLIS, Respondent.
    Supreme Court of Kentucky.
    Jan. 14, 1977.
    Rehearing Denied April 1, 1977.
    Leslie G. Whitmer, Director, John T. Damron, Asst. Director, Kentucky Bar Association, Frankfort, for complainant.
    Frank A. Logan, Louisville, for respondent.
   PER CURIAM.

This is a disciplinary action brought by the Kentucky Bar Association against respondent, DeCamillis. The Kentucky Bar Association charged DeCamillis with the following offenses:

“The first count charged the respondent with having a discussion with an adverse party in litigation while the adverse party was represented by counsel.
“The second count charges that the respondent borrowed $1,500.00 from the adverse party while the litigation was pending as evidenced by a note attached as exhibit ‘A’ to the charges. It is also charged that the respondent executed an agreement to settle his client’s litigation without the approval of his client. The agreement was attached as exhibit ‘B’ to the charges.
“The third count charges that the respondent agreed to buy certain items of furniture for his client in order to correct the difference of the terms of the agreement shown by exhibit ‘B’ and the actual agreement executed by his client Jacqueline Foley. It further charges that the respondent executed a receipt for the attorney’s fee from the adverse parties when in fact the adverse party had paid no fee whatsoever to the respondent. The charges were fully but concisely stated in the formal charge.”

The Board of Governors found DeCamillis guilty of unprofessional conduct and recommended his permanent disbarment. In its recommendation the Board of Governors stated:

“It is respectfully recommended to the Supreme Court of Kentucky that Norbert J. DeCamillis be disbarred from the practice of law in Kentucky and be required to pay the costs in this action.”

This case arises out of a divorce action by Jacqueline Foley against Glen Foley, her husband. DeCamillis was Jacqueline’s attorney. For a variety of reasons the matter was delayed. It was finally brought to litigation in November of 1974.

At a pre-trial hearing, it was apparent that the parties could not agree as to the disposition of marital property, and other matters. On February 3, 1976, the trial court set a hearing to determine the issues. In December of 1975, DeCamillis approached the respondent, Glen Foley, and discussed the trial proceedings with him, apparently in an effort to reach some kind of an agreement. At that time he requested a loan from Foley in the sum of $1500.00. Foley, after consulting his attorney, loaned DeCamillis the $1500.00, and in return received a note from him. At that time another document was drafted to include the terms of the property agreement. Jacqueline was to receive $3,000.00 maintenance, $1500.00 as a repayment to her mother, and a tentative agreement was recited as to the division of the furniture.

Sometime in January DeCamillis saw Glen Foley again. Foley was concerned about the attorney fees and a difference relating to the disposition of the furniture. DeCamillis told Foley not to worry about the furniture that he would buy furniture for Mrs. Foley and that he would waive all attorney fees. He drafted another document stating that all attorney fees had been paid, when in fact they had not been paid.

On February 3, 1975, a trial was commenced on the divorce proceedings. The attorneys for Glen Foley brought to the court’s attention the unethical conduct of DeCamillis and requested that the trial,be continued until Jacqueline Foley could obtain other counsel. The trial court agreed and the trial was continued. Jacqueline finally obtained a divorce decree.

It is obvious that the Code of Professional Responsibility promulgated by the American Bar Association and adopted by the rules of this court was violated by De-Camillis. RAP 3.130. As to count 1, the visitation of DeCamillis with the adverse party, ethical consideration EC 7-18 and disciplinary rule DR 7-104 are involved. EC 7-18 states:

“The legal system in its broadest sense functions best when persons in need of legal advice or assistance are represented by their own counsel. For this reason a lawyer should not communicate on the subject matter of the representation of his client with a person he knows to be represented in the matter by a lawyer, unless pursuant to law or rule of the court or unless he has the consent of the lawyer for that person.” (Emphasis added).

DR 7-04 entitled Communicating With One of Adverse Interest states:

“(a) In the course of his representation of a client a lawyer shall not:
(1) communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.”

Thus, it is clear from the literal reading of these canons that DeCamillis violated the ethical considerations.

As to charge 2, relating to the acceptance of $1500.00, supposedly as a loan, ethical considerations EC 5-1 and EC 5-2 in part set the stage for DR 5-101(a), 5-105(a) and 5-107(a)(2):

“The professional judgment of a lawyer should be exercised within the bounds of the law solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interest of other clients nor the desires of third persons should be permitted to dilute his loyalty to his client.”

See also EC 5-2, which states:

“After accepting employment a lawyer should carefully refrain from acquiring a property right or assuming a position that would tend to make his judgment less protective of the interest of his client.”

It is contended by the Kentucky Bar Association that the $1,500.00 loan actually was an ill-disguised bribe that was given in consideration for reducing the amount of the judgment being sought by DeCamillis. At one time DeCamillis argued that there were hidden assets belonging to Glen Foley and that his client was entitled to $10,-000.00. Whether or not this is true, the fact that he sought a loan from an adverse party is highly improper and violates fundamental rules of ethical consideration.

As to the charge relating to the waiving of attorney fees and purchasing furniture, the ethical considerations are also clear that a lawyer shall not advance funds to his client in order to pursue the litigation. The waiving of the fees by itself is perhaps proper, but the fact that he was making this agreement without the consent of his client, without any information to the client about it, was improper.

DeCamillis argues that his procedural due rights were violated when members of the local bar assembled in the trial court’s chambers and talked about the case without notifying him of the charges. This argument is totally without merit. DeCamillis received a full hearing before the Board of Governors. He presented his arguments and his witnesses. Kentucky Bar Association v. Franklin, Ky., 534 S.W.2d 459 (1976). DeCamillis also argues that although his actions were improper and reflected bad judgment, he did not do it in bad faith or with malice. The Board of Governors of the Kentucky Bar Association found otherwise.

This court is of the opinion that the proper administration of justice and the proper regard for the integrity of the profession compel it to conclude that DeCamil-lis is unfit to continue as a member of the Bar of this Commonwealth.

It is therefore ordered and adjudged that respondent, Norbert J. DeCamillis, be permanently disbarred from the practice of law in the Commonwealth of Kentucky and that he pay the costs of this action.

All concur.


source: Caselaw Access Project

author: PARK, Judge:

license: Public Domain

text:
    Constance A. WEBB, Appellant, v. Jon E. WEBB, Appellee. MODINE MANUFACTURING COMPANY et al., Appellants, v. Clint E. THWEATT et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 29, 1976.

      Virginia Collins Burbank, Louisville, Herbert Schultzman, Schultzman, Hardy, Terrell & Boswell, Paducah, for appellants.
    Jon L. Pleischaker, J. Baxter Schilling, Wyatt, Grafton & Sloss, Louisville, James W. Owens, Chartered, Paducah, Timothy O’Mara, Gemma M. Harding, Dept, of Labor, Louisville, William L. Huffman, Director, Workmen’s Compensation Bd., Frankfort, for appellees.
    Before MARTIN, C. J., and PARK and WILHOIT, JJ.
   PARK, Judge:

These two appeals involve a construction of CR 75.01, as amended by the Supreme Court, effective July 1,1976. In each case, a motion to dismiss the appeal has been filed on the ground that no timely designation of the record was made as required by CR 75.01.

In No. CA-324-1, Modine Mfg. Co., et al. v. Clint E. Thweatt, et al., the McCracken Circuit Court entered judgment dismissing an appeal from an order of the Kentucky Workmen’s Compensation Board. The appellants filed a notice of appeal on September 20, 1976, but the appellants have not filed any designation of the record.

In No. CA-308-1, Constance A. Webb v. Jon E. Webb, the Jefferson Circuit Court entered an order permanently enjoining Constance A. Webb from removing the minor children of the parties from the State of Kentucky. A notice of appeal was filed on September 2, 1976. The appellant filed a designation of the record on September 16,1976, which specified that the transcript of the hearing held on July 19,1976, should be included in the record on appeal.

Prior to its amendment July 1, 1976, CR 75.01 provided that the appellant must file with the Circuit Court a designation of “the portions of the record, proceedings, and evidence to be contained in the record on appeal,” within ten days after the filing of the notice of appeal. As amended, CR 75.01 requires the appellant to file with the trial court a designation of “such portions of the evidence or proceedings stenographically reported as he wishes to be included in the record on appeal,” within ten days after filing the notice of appeal.

One other change in the rule is pertinent to the disposition of the pending motions. Prior to the amendments of July 1, 1976, CR 75.07(1) required the clerk of the Circuit Court to “prepare and certify a true copy of the matter designated by the parties * * As amended, the clerk of the trial court must “prepare and certify the entire original record * * CR 75.-07(1).

In the Modine Manufacturing Company appeal, there were no evidentiary hearings in the Circuit Court which would have been stenographically reported. There was nothing for the appellant to designate for inclusion in the record on appeal under CR 75.01, as amended. The case was decided by the McCracken Circuit Court on the basis of the record from the Workmen’s Compensation Board. Under CR 75.07(1), as amended, the clerk will transmit the entire original record to this Court, including the record from the Workmen’s Compensation Board. The appellant was not required to do a useless act by filing a designation of “the evidence or proceedings stenographically reported” when no evidence or proceedings were stenographically reported. The motion to dismiss in No. CA-324-1 should be denied.

In the Webb appeal, there was a hearing which was stenographically reported. Under CR 75.01, as amended, the appellant was required to file a designation of the portion of the evidence at that hearing to be included in the record on appeal. The appellant did not file a designation within ten days after the filing of the notice of appeal as required by CR 75.01. The appellant attempts to excuse the late filing of the designation on the grounds of excusable neglect. However, the appellant did not file with the trial court a motion for an enlargement of time within which to file the designation under CR 6.02. See,Montefort v. Archer, Ky., 477 S.W.2d 143 (1970). As the appellant did not make use of the relief available under CR 6.02, the appeal must be dismissed in No. CA-308-1 because of the appellant’s failure to file a timely designation as required by CR 75.01. Motorists Mutual Ins. Co. v. Mercer, Ky., 462 S.W.2d 188 (1970).

The motion to dismiss the appeal in No. CA-308-1 is granted. The motion to dismiss the appeal in No. CA-324-1 is denied.


author: HENLEY, Judge.

text:
    CITY OF ST. LOUIS, Respondent, v. Joseph H. LIBERMAN, Appellant.
    No. 59389.
    Supreme Court of Missouri, en banc.
    Feb. 14, 1977.
    Rehearing Denied March 14, 1977.

      Bernard Susman, St. Louis, Mo., for appellant.
    Judith A. Ronzio, Asst. City Counselor, St. Louis, for respondent.
    Richard E. Schum, Am. Civ. Liberties Union of Eastern Missouri, East St. Louis, Ill., Francis Ruppert, Am. Civ. Liberties Union of Eastern Missouri, Clayton, amicus curiae.
   HENLEY, Judge.

This is an appeal by Joseph H. Liberman (defendant) from two judgments of conviction of violations of ordinances of the City of St. Louis regulating pawnbrokers.

Defendant, a pawnbroker in the City of St. Louis, was charged by information filed in case No. 158293 in City Court with violation in November, 1974, of § 700.130 of Ordinance No. 55784 of the City of St. Louis by unlawfully accepting for pawn a saxophone without making a photograph of the person from whom it was received and of the receipt or pawn ticket given to such person. He was also charged by information in case No. 158294 with violation in November, 1974, of § 700.061 of Ordinance No. 55784 by unlawfully failing to keep a register of the loan made on the saxophone showing the photograph number and the age of the person who left the saxophone on deposit as collateral security as well as his social security number or his motor vehicle operator or chauffeur’s license number. Motions to dismiss these informations attacking the constitutionality of Ordinance No. 55784 were overruled and, upon subsequent trial in City Court, defendant was convicted and fined $10 (plus costs) in each ease. He appealed from these judgments to the St. Louis Court of Criminal Correction where he again filed a motion to dismiss attacking the ordinance as unconstitutional and void because violative of designated provisions of the federal and state constitutions. This motion was also overruled and, as stated, the trial of the charges resulted in conviction and this appeal. We affirm.

The trier of facts reasonably could find from the evidence that Dorian Isaac pawned a saxophone in early November, 1974, at defendant’s pawnshop and received a pawn ticket therefor; that officers of the St. Louis police department assigned to the pawnshop squad, without a search warrant but with consent of the person in charge thereof, made a routine examination of defendant’s books and records in the private area of defendant’s place of business on November 18, 1974, during which they found listed the saxophone pawned by Mr. Isaac bearing a serial number identical to one listed with the police department as lost or stolen; that defendant did not make a photograph of Mr. Isaac or the pawn ticket given him as required by § 700.130, supra; that the pawn register book contained the name and address of Mr. Isaac and a notation of the transaction with him, but did not contain information as to his age or social security number or his motor vehicle operator or chauffeur’s license number (and, of course, did not show a photograph number) as required by § 700.061, supra. The evidence is sufficient to sustain conviction of violation of these sections of the ordinance. There is also evidence that the officers took the saxophone, gave defendant a receipt therefor, and that one of them iharked the pawn register book that it had been “seized” by the police department on the date of this inspection.

The first point briefed by defendant is that his conviction should be reversed because his right under the federal and state constitutions to be secure against unreasonable searches and seizures was violated by “the warrantless search of the nonpublic business area of the pawnshop without consent, the seizure of the saxophone, and the demand for photographs and film.”

The evidence does not support the assertion in this point that the officers made a search of the nonpublic business “area” of the pawnshop or any other area thereof. Defendant does not point to any evidence of such search and we have found none in our examination of the record. What the officers did do was examine defendant’s books and records as required by the ordinance, and this examination was made while they were in the private or nonpublic business area with the tacit permission of the person then in charge of the business.

The substance of this point is stated in his argument to be that the ordinance is unconstitutional on its face, because it requires him to submit to demands to inspect his books and to demands to surrender photographs and property, all without a search warrant or his voluntary consent.

In Liberman v. Cervantes, supra (511 S.W.2d at 837, 838) the court said:

“Requiring pawnbrokers to take photographs of customers and make them available to law enforcement officers upon request does not violate search and seizure guarantees. It has long been established that the state may validly regulate the business of pawnbrokers, which is a privilege, not a right, ‘and he who avails himself of it, and derives its benefits, must bear its burdens, and conform to the laws in force regulating the occupation, if not illegal. * * *’ City of St. Joseph v. Levin, 128 Mo. 588, 31 S.W. 101, 102-103 (1895). This business is one of a class where the strictest police regulation may be imposed. 54 Am. Jur.2d Moneylenders and Pawnbrokers § 3, p. 597. The requirement of photographs is reasonably connected with the object and purpose of the ordinance as a whole, which is ‘to keep the pawnbrokers’ business free from great abuse by thieves disposing of stolen goods in their shops. They are all made in the interest of the public, and are intended for the detection and prevention of crime.’ Idem., 31 S.W. 1. e. 103; 54 Am.Jur.2d Moneylenders and Pawnbrokers § 5, p. 600. This requirement is akin to the requirement that pawnbrokers’ records be kept, produced and opened for inspection by designated public officials, upheld because it has a direct relation to the prevention of crime and the detection and apprehension of criminals, 54 Am.Jur.2d Moneylenders and Pawnbrokers § 5, p. 600 (see also 79 C.J.S. Searches and Seizures § 36, p. 803), and compares with the requirement of fingerprinting of persons from whom pawnbrokers receive goods, which has been upheld as not improperly interfering with personal liberty. Idem.”

The requirements of the ordinance that pawnbrokers’ records be kept and available for examination by police officers of the city, and that photographs of his customers be taken and made available to such officers, are a valid and proper exercise of the police power and do not infringe the constitutional guaranty against unreasonable searches and seizures or defendant’s right to privacy.

Other points briefed by defendant in this case which were decided against him in Liberman v. Cervantes, supra, are:

1. That the ordinance is vague and uncertain because it fails to state or define with particularity such terms as “proper camera,” “law enforcement officers,” and “full description of all such property” and therefore violates Mo.Const. Art. I, § 10 and the due process clause of the Fourteenth Amendment. 511 S.W.2d at 838[3-7].

2. That the regulatory requirements of the ordinance are confiscatory and result in a “taking” of defendant’s property without compensation or prior notice and therefore violate Mo.Const. Art. I, § 26 and the due process clause of the Fifth and Fourteenth Amendments. 511 S.W.2d at 838-839[8, 9],

3. That the warrantless inspection of defendant’s pawn register book and the seizure of photographs of his customers without consent violates his and his customers’ right to privacy guaranteed by the Fourth, Fifth and Fourteenth Amendments of the United States Constitution. 511 S.W.2d at 837[1] and 839[10].

4. That § 700.031 of the ordinance is unconstitutional on its face because it unlawfully delegates to the police commissioners authority to pass upon the moral character of applicants for a pawnbroker’s license without specifying what standards they are to employ in determining whether an applicant is of good moral character. 511 S.W.2d 839-840[12],

This section of the ordinance does not unlawfully delegate to the license collector authority to designate identifying insignia to be required for identification of the twenty items named in this section of the ordinance. In the first place, the ordinance does not require, authorize or permit the collector to designate such identifying insignia. Subsection c of § 700.031 provides that before issuance of a license by the collector the applicant shall have agreed that he will not accept for pawn or purchase any one of twenty named items (e. g., camera, radio, tape recorder or player, dictating machine, television set) “unless such item shall have plainly visible thereon the manufacturer’s serial number or other identifying insignia.” The requirement that the item have other identifying insignia plainly visible thereon where there is no manufacturer’s serial number is reasonably connected with the general purpose and object of the ordinance as expressed in Liberman, supra, at 837, and is made in the interest of the public to facilitate the detection and prevention of crime. The words “other identifying insignia” in the context of this ordinance are sufficiently explicit and so well understood by the average person that they require no further designation or definition.

We have considered the additional authorities cited by defendant on the above points and are not persuaded that our decision in Liberman v. Cervantes, supra, should be abandoned. We adhere to that decision.

Two additional points briefed by defendant in this case, not presented in Liberman v. Cervantes, supra, are that the ordinance is unconstitutional on its face, because:

(1) it subjects him to involuntary servitude in violation of the Thirteenth Amendment of the U.S. Constitution by compelling him to aid the police in their efforts to capture thieves; and,

(2) it unreasonably singles out pawnshops for regulation despite the similar facility for secondhand stores, junk dealers and antique shops to serve as ready and convenient markets for stolen goods, thus invidiously discriminating against him in violation of Mo.Const. Art. I, § 2 and the equal protection clause of the Fourteenth Amendment.

The critical, factor with respect to defendant’s present and past attempts to establish the unconstitutionality of this ordinance is that its regulatory provisions represent an exercise of the police power. Each theory upon which he relies in asserting his constitutional challenge is tempered and diluted by the broad discretion and deference accorded to the legislature in exercising its police power to determine both what areas will be regulated in the public interest, and to what extent such regulation can go. See: Day—Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423-424, 72 S.Ct. 405, 96 L.Ed. 469 (1952); State v. Day—Brite Lighting, Inc., 362 Mo. 299, 240 S.W.2d 886, 893[6, 7] (banc 1951). And, generally speaking, the municipal power to regulate by legislation pursuant to the police power is equivalent to State power. McClellan v. Kansas City, 379 S.W.2d 500, 504[1-5] (Mo.banc 1964). The determination of what considerations properly call for the exercise of the police power is primarily a legislative, not a judicial question. Id. 379 S.W.2d at 505[6, 7], And, we do not second-guess the judgment of the legislative body as to the wisdom, adequacy, propriety, expediency or policy of the legislative act in question. State v. Ewing, 518 S.W.2d 643, 648[7] (Mo.1975) and cases cited therein. Moreover, this court has repeatedly and consistently upheld the legislative judgment to regulate pawnbrokers, by adopting the view that those choosing to engage in the business of pawnbroking may be constitutionally subjected to strict regulation through statutes and ordinances enacted pursuant to the police power. City of St. Joseph v. Levin, 128 Mo. 588, 31 S.W. 101, 102-103 (1895); State v. Lawson, 352 Mo. 1168, 181 S.W.2d 508, 512[4, 5] (1944); Liberman v. Cervantes, et al., supra, 511 S.W.2d 835, 837[1, 2] (Mo.1974). We reaffirm this view.

We turn to defendant’s two newly-asserted constitutional challenges. As with the other constitutional theories argued by defendant in the first Liberman case and in this case, these two attacks upon the constitutionality of the ordinance are also affected by the police power principle.

Defendant contends that the various provisions of the ordinance which require him to arrange for use of a camera, to photograph all his customers, surrender photos to police upon request, keep his books open for inspection, etc., bring about involuntary servitude, in that he is forced to labor against his will for the benefit of police, thereby transforming his pawnshop “into a police sub-station to aid in the * * apprehension of thieves.” The point is without merit.

As previously stated, the pawnbroking business is one which may be subjected to strict regulation under the police power in order to carry out a perfectly valid legislatively-determined public need. Defendant has voluntarily chosen to engage in this regulated enterprise, and it is true that in connection therewith he must participate in some uncompensated service in order to conform to the intended public needs and purposes manifested by the ordinance.

Although the Thirteenth Amendment has been broadened somewhat in more recent times, it is important to remember that the amendment was adopted with reference to conditions that had existed since the foundation of our government. In such context, “the term ‘involuntary servitude’ was intended to cover those forms of compulsory labor akin to African slavery which in practical operation would tend to produce like undesirable results * * * The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers.” Butler v. Perry, 240 U.S. 328, 332, 36 S.Ct. 258, 259, 60 L.Ed. 672 (1916).

The police power to regulate the business of pawnbroking is one such “essential power” by which the government may, without running afoul of the Thirteenth Amendment, exact by law this small measure of uncompensated, but not “undesirable,” service to meet the need of the public as a whole. A compelling factor for rejecting defendant’s claim of involuntary servitude, however, is the fact of his voluntary venture into the pawnbroking business and the attendant regulations. As counsel for the city very accurately pinpoints it: “If [he] feels himself enslaved, he is responsible for his own bondage.”

Defendant’s precise contention with respect to his equal protection claim is that the ordinance, which requires photographs and other measures to deter fencing of stolen property and to aid in the apprehension of thieves, creates an unreasonable classification by singling out pawnbrokers for regulation, inasmuch as junk dealers, secondhand shops, and antique businesses are also likely markets for stolen property. He claims this disparate treatment given “similarly-situated” businesses is without a rational basis and results in invidious discrimination. This contention is also without merit.

It should be noted at this point that, apart from defendant’s assertion that junk dealers, secondhand shops, etc., are businesses similarly-situated to pawnshops, there is little, if any, evidence in the record to support the proposition that these businesses are at all comparable. Nevertheless, we consider the merits of his equal protection claim. The rules of judicial review of a legislative classification which is challenged as a denial of equal protection are settled:

“The equal protection clause does not forbid a State to create classes in the adoption of regulations under its police power, but it allows wide discretion, precluding only that done without any reasonable basis and therefore arbitrary, or as otherwise stated, it forbids invidious discrimination. Morey v. Dowd, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 * * * (1957); Kansas City v. Webb, 484 S.W.2d 817 (Mo.)” Howe v. City of St. Louis, 512 S.W.2d 127, 132[4] (Mo.banc 1974). One who assails the classification has the burden of showing that it does not rest upon any reasonable basis and is purely arbitrary. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S.Ct. 337, 55 L.Ed. 369 (1911). And, a classification will be sustained if any state of facts reasonably can be conceived to justify it. McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); State v. Ewing, 518 S.W.2d 643, 648[7] (Mo.1975).

It is easy to perceive a reasonable basis for the legislative decision to regulate pawnbrokers by means of this ordinance in order to aid law enforcement. Beyond this threshold finding that the classification as to pawnbrokers rests upon a ground relevant to the achievement of the legislative objective and is, therefore, not purely arbitrary, we must disregard all matters relating to the wisdom, adequacy, propriety, expediency or policy of the act in question. State v. Ewing, supra, 518 S.W.2d at 648[7], The same deference is accorded city ordinances. McClellan v. Kansas City, supra, 379 S.W.2d at 504[1—5]; Howe v. City of St. Louis, supra, 512 S.W.2d at 132[4, 5].

Defendant urges invalidity of the ordinance on equal protection grounds for its failure to extend its regulation to junk dealers, and all other businesses which might present possible variations of the potential evil which the ordinance is designed to protect against. However, a legislative classification assailed on equal protection grounds is not rendered arbitrary or invidious merely because it is under-inclusive. Clearly, there is no constitutional requirement that regulation must reach every class to which it might be applied; that the legislature must regulate all or none. State v. Ewing, supra, 518 S.W.2d at 648[6]. The state (or city) is free to regulate one step at a time, recognizing degrees of harm and addressing itself to phases of a problem which presently seem most acute to the legislative mind. See: Williamson v. Lee Optical, 348 U.S. 483, 488-489, 75 S.Ct. 461, 99 L.Ed. 563 (1955); State v. Ewing, supra, 518 S.W.2d at 648[6], and cases cited therein.

We decline to strike down this ordinance. It has not been demonstrated that it is an unreasonable or arbitrary exercise of the police power of the city in any of the respects asserted.

The judgment is affirmed.

All concur.

RENDLEN, J., not participating.

      . The provisions of these two sections of Ordinance No. 55784 are summarized in Liberman v. Cervantes, Mayor of City of St. Louis, et al., 511 S.W.2d 835, 837 (Mo.1974), a declaratory judgment action in which the defendant herein sought to have this ordinance declared void on the ground that it violated certain provisions of the federal and state constitutions.

      . The punishment imposed on conviction in the St. Louis Court of Criminal Correction was the same as that imposed on conviction in the St. Louis City Court.

      . Fourth Amendment of the Constitution of the United States and Mo.Const. Art. I, § 15.

      . The pawnshop is divided, apparently for security purposes, into two areas by a partition wall (in which there is a door near one end) which extends from floor to ceiling and wall to wall. The partition wall (and door) is solid from the floor up to a counter top and above the counter it is made up of closely-spaced vertical iron bars. The area open to the pawnshop’s patrons is that part of the building from the partition wall to the front door. On the other side of this wall is the nonpublic area where defendant keeps his books and records and money in a large metal safe and it is from the security of this point that he deals with his patrons on the other side when handling money.


author: SEILER, Chief Justice. FINCH, Judge,

text:
    In re Dan D. WEINER, Respondent.
    No. 58923.
    Supreme Court of Missouri, En Banc.
    March 14, 1977.
    Thomas P. Meade, Sp. Counsel Advisory Commission, Missouri Bar, Palmyra, for informant.
    Steven J. Stogel, Clayton, for respondent.
   SEILER, Chief Justice.

This is a disciplinary action involving rule 5.19, which deals with professional misconduct in another state. Respondent, Dan D. Weiner, age 44, is a member of both the Ohio and Missouri bars who practiced in Ohio, not Missouri. He was suspended in Ohio for an indefinite period, Dayton Bar Association v. Weiner, 40 Ohio St.2d 7, 69 Ohio Op.2d 83, 317 N.E.2d 793 (1974), which under the Ohio rules meant suspension for at least two years from the date of the ruling, October 16, 1974. The matter first came before us in In re Weiner, 530 S.W.2d 222 (Mo. banc 1975), in which we considered the question of to what extent we should rely on the Ohio decision when deciding whether discipline is called for in Missouri for the acts and omissions which took place in Ohio.

As will be seen from our earlier decision, In re Weiner, supra, at 225, it appeared that the Ohio authorities probably would not have disciplined respondent beyond a public reprimand had it not been for their belief that he had applied $480 which had been deposited with him for another purpose to his fee without his clients’ consent. As reported in our earlier decision, respondent asserted that in the course of cleaning out his office shortly after the Ohio suspension he ran across a tape recording of an office conference during which his clients authorized and consented to his application of the above mentioned $480 to the fee. The Ohio court refused to hear this newly discovered evidence but we saw “no reason why we should not do so in deciding the important question of whether respondent has properly conducted himself as a member of our bar and whether discipline is necessary to protect the public interest.” 530 S.W.2d at 225.

Therefore, we ordered an evidentiary hearing in front of a master before making our final determination. The hearing has been held. It took place in St. Louis. The witnesses were respondent’s former secretary, his clients, respondent, and respondent’s wife, who filled in as substitute when the regular secretary was absent. The tape of the March 6,1970, conference was played before the master and also before us. We also have a transcript of the tape in the record. Respondent and his clients, Mr. and Mrs. Turner, heard the tape before the master and were interrogated about it.

The master ruled against respondent, holding that respondent had improperly applied the $480 fund to his fee. However, in a disbarment or disciplinary proceeding, the ultimate responsibility for finding the facts is ours. It is our duty to make our own decision, In re Veach, 365 Mo. 776, 287 S.W.2d 753, 755 (banc 1956). The findings and conclusions of a master are advisory, not binding. It is our duty to review the evidence, the credibility, weight, and value of the witnesses, and the determination of all fact issues necessary to a decision in the case are for this court, In re Gamblin, 458 S.W.2d 321, 323 (Mo. banc 1970). This continues to be the basis on which we hear and determine disciplinary proceedings, In re Schiff, 542 S.W.2d 771, 774 (Mo. banc 1976). The rule of appellate review under rule 73.01 set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) does not apply to disciplinary proceedings. Accordingly, we make our own independent review of the evidence before the master and despite our high regard for his ability and sincerity, we are unable to agree with his findings or conclusions.

We are satisfied the tape recording is authentic and reliable, that it was made in Mr. Weiner’s office on the date claimed, March 6, 1970, and that Mr. Weiner overlooked it until he ran across it when closing his office after his suspension. In the taped conversation Mr. Weiner reminded Mr. and Mrs. Turner that Mrs. Turner had called his office a month or so earlier and said to “keep the money on their fees” and return their important papers. The telephone message was jotted down by Mr. Weiner’s secretary at the. time and given to him by her. Respondent produced a copy of the telephone message (the original is on file in Ohio) and the secretary’s carbon copy. We do not believe it is a fabrication or afterthought. Mrs. Turner did not gainsay having made the call, nor did she disagree that if she had not made such a call to the secretary, she would no doubt have objected strenuously when Mr. Weiner related the conversation. No such objection appears.

Mr. Turner remembered the March 6 conference to some extent and he knew at the time it was being taped. He could not remember authorizing his wife to make the call about applying the $480 to the fee but said it was possible he had done so.

Some of the statements made by Mr. and Mrs. Turner in the conference of March 6, 1970, are neither consistent with their complaint nor their present or past testimony against respondent; perhaps this accounts for a lack of forthrightness on their part in their testimony before the master about that conference and their reluctance to accept what the transcript and the tape itself show was said. For example, although they conceded the female voice on the tape was that of Mrs. Turner and there was no dispute about respondent’s voice, neither Mr. nor Mrs. Turner would say unequivocally that the other male voice was that of Mr. Turner, despite the absurdity of the alternative that someone other than Mr. Turner could have been the third person present with Mrs. Turner and respondent in a conference dealing with personal matters involving Turner and his problems regarding child support and attorney fees.

Mr. and Mrs. Turner continued with respondent as their lawyer after the March 6 conference and they made further payments on the balance of respondent’s fee. Cash payments of $20 were made on March 13 and March 20, 1970. Respondent did some work on their matters March 7, 1970, had another conference with Mrs. Turner on March 20, 1970, wrote a letter to the Bureau of Support on March 22, had further telephone conversations with Mrs. Turner on April 1 and April 28 and a final conference with her on May 4, 1970. Mr. Turner admitted that additional payments were made on respondent’s fee and that the child support matter which brought the Turners to respondent’s office on March 6 had thereafter “been all straightened out”. This course of events following the March 6, 1970, conference is much more consistent with respondent’s position that Mrs. Turner in her telephone call of January 23, 1970, authorized him to apply the $480 to his fee than that he had no such authority or that the Turners were taking a contrary position in the March 6 meeting.

We therefore conclude that respondent did not conduct himself improperly as a member of the Missouri bar with respect to the $480 mentioned above. “In Missouri . disciplinary proceedings for lawyers require the charges be sustained by a preponderance of the evidence. . . .” In the Matter of Duncan, 541 S.W.2d 564, 569 (Mo. banc 1976). That has not been done here.

We are mindful that respondent acted promptly at the time of his suspension in Ohio to bring his suspension to the attention of the Advisory Committee of this court, as he should have done, In re Coleman, 492 S.W.2d 750 (Mo. banc 1973). Respondent has not practiced law here or elsewhere since his suspension in Ohio and we were informed at oral argument that his application for reinstatement in Ohio is now under consideration there.

In our judgment, no additional discipline is warranted in view of the suspension imposed by Ohio, the time that has elapsed since imposition of the suspension, and respondent’s forbearance from practicing law in Missouri during the same time.

We therefore conclude this proceeding and order the costs of this proceeding assessed against informant and respondent equally.

MORGAN, BARDGETT and DONNELLY, JJ., concur.

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

HENLEY, J., dissents and concurs in separate dissenting opinion of FINCH, J.

RENDLEN, J., dissents and concurs in part in dissenting opinion of FINCH, J., in separate dissenting opinion filed.

FINCH, Judge,

dissenting.

I respectfully dissent. I cannot concur in the conclusion reached in the principal opinion that respondent did not conduct himself improperly with respect to the $480 which had been deposited with him in trust for use for a specific purpose and that he should not be disciplined by this court.

As noted in the principal opinion, respondent was suspended for an indefinite period in Ohio on the basis that he was guilty of misconduct which violated Canon 1, DR 1—102(A)(5), Canon 2, DR 2-106(A), Canon 2, DR 2-110(A)(2) and Canon 9, DR 9—102. Dayton Bar Association v. Weiner, 40 Ohio St.2d 7, 69 Ohio Op.2d 83, 317 N.E.2d 783 (1974). This action was reported to our Advisory Committee, after which, on petition of the Advisory Committee, an order was entered calling upon respondent to show cause, if any, why the Ohio adjudication should not be conclusive for the purpose of discipline of respondent by this court.

After a return was filed and the case was briefed, this court, in the case of In re Weiner, 530 S.W.2d 222 (Mo. banc 1975), held that before arriving at a final conclusion we would appoint a master to conduct an evidentiary hearing and then make findings of fact and a recommendation as to whether this court should conclude that respondent had the permission of his client to apply on his fee the $480 which had been deposited in trust for use in settling back child support due. Pursuant to that order, we appointed Honorable David A. McMul-lan as master and he thereafter held two days of hearings.' He filed a report in which he found that respondent improperly applied trust funds to payment of his fee and that he did not have the consent of his client to so divert and apply those funds.

I am in agreement with the holding in the principal opinion that in a disciplinary proceeding the findings and conclusions or the master are advisory only and that the court has the obligation to review the evidence and make its own determination of fact issues. However, I strongly disagree with the conclusion therein that the evidence heard by Judge McMullan does not justify or support the findings and conclusions he reached and does not support disciplinary action. In my view, the evidence compels the findings and conclusions which the master reached.

We necessarily start with the premise that the $480 was entrusted by the Turners to respondent for a very definite and specific purpose. This was recognized in the written receipt therefor which read: “Cash in trust for back child support”. Turner was involved in a dispute with the Kentucky Bureau of Support with reference to child support which he was obligated to pay to his ex-wife. They were contending that he owed back support payments amounting to about $500. Turner contended he did not owe any back support, but he wanted the matter resolved. He wanted to avoid possible incarceration and at the outset, he wanted to seek custody of the child. He consulted Weiner who already represented him in some matters. Weiner advised Turner to deposit money with him for use in working out a settlement of arrearages. Turners then borrowed $480 which they deposited with respondent on August 20,1969, for that express purpose as the receipt shows.

There is no doubt that respondent actually used the money to pay attorneys fees to himself, a completely different purpose than that expressly stated in the receipt given when the money was deposited. That violated Canon 9, DR 9-102 unless Turner had released the money from the purpose for which it had been entrusted to Weiner and gave consent that it be withdrawn and used for the purpose for which it actually was used. The burden of so showing, thereby excusing what on the face of things appears to be a violation of respondent’s duty, rests on respondent Weiner. This is not stated or recognized in the principal opinion. As I read it, its rationale for the result reached seems to be that the telephone message memo of January 23, 1970, and the tape recording of the conference on March 6, 1970, are genuine; that Mrs. Turner did, in fact, make a call on January 23, 1970, to Weiner’s secretary; that Turners continued after March 6 to use Weiner as their lawyer; that they made subsequent payments on fee; that eventually the matter of child support was straightened out; and that the testimony of the Turners before the master with reference to the events in 1969 and 1970 lacked forthrightness. These, as I read the principal opinion, supply the proof that Weiner was authorized to ignore the express purpose for which the money was deposited and, instead, to apply the trust money to his fee. I simply cannot read the record and reach any such conclusion, particularly in view of some of the things which I shall proceed to discuss.

A review of the evidence heard by the master causes me to conclude that from the time the $480 was deposited in trust, respondent was determined to use that sum to guarantee payment of his fee. A conference was held in Weiner’s office on September 28, 1969, approximately 5 weeks after the money for back child support had been deposited and clearly marked in trust for that purpose. In that conference, respondent informed the Turners that his bill to them for services at that time, including a few additional hours he estimated would be necessary, amounted to $800. He then took a note for that amount from them.

At that time nothing had been resolved by Weiner with the Kentucky Bureau of Support with reference to the asserted ar-rearages due from Turner to his ex-wife. In fact, I find nothing to indicate that Weiner had done anything with reference thereto. Even so, testified Weiner, “it was agreed upon, at that time, that I would retain the money that was sitting in trust, that Bill had given me in trust, and hold onto it until my fees were paid”. In further explanation of what occurred at that September 28, 1969, meeting, respondent testified:

“Q. All right, now you say, also, on that day they agreed to something which they had not agreed to before, which is the fact that you would keep this money in trust until your fee was paid; is that correct?
“A. It was understood that I would hold onto it, yes.
“Q. In other words, while the original purpose of this trust fund was simply to pay the back arrearages, if it was determined, now it became a guarantee of your fees?
“A. I don’t know if you would call it a guarantee, but I was to hold it until they paid it, yes.
“Q. And you say that took place in September?
“A. Right.”

It is significant, I think, that respondent took a written note for $800 from Turners at that time, but there is nothing in writing to show the agreement allegedly made to change the terms of the trust arrangement whereby the $480 was deposited solely and exclusively for use in settling a claim for child support arrearages. Respondent didn’t even write a letter after the meeting to confirm the changed arrangements with reference to the trust. It also is significant that when the Dayton Bar Association was proceeding against respondent, there was not one word from Weiner about this alleged agreement of September 28, 1969.

The transcript of testimony before the master discloses that the dispute over child payments continued without being resolved. On December 17, 1969, respondent wrote a letter to the Kentucky caseworker who was handling the matter. That letter discussed various payments allegedly made during the fall by Turner, some directly to his ex-wife, and then said: “If everything goes in accordance with our plans, we should have $500 at the end of February to pay toward any back support that might be owing.”

In a postscript to Turner, which respondent added to the copy sent to Turner, he said: “As I told Terry on December 8th, I am very displeased at you that you have not followed through and made payments each week or at least the end of each month toward fees. F&r this reason, I am going to hold the monies that I am holding in trust and unless arrangements are made to start paying on the fees regularly, will apply that money towards them.”

Respondent’s explanation of this communication was that Turners in September had said they would borrow the money to pay the $800 note given for fees and that if they did that, he would have had the $480 deposited in trust to use in making payment toward the end of February as he suggested to the caseworker, but if that was not done, then, as he stated in the postscript, this money was to guarantee payment of his fee, this having been agreed upon at the September meeting. If that explanation is valid, it is hard to understand why no reference was made to a September 28, 1969, agreement.

At the hearing before the master, respondent offered in evidence a telephone message memo dated January 23, 1970, which indicated a call from Mrs. Turner taken by Weiner’s secretary. The words used in the memo to describe the message were “wants all their important papers and just keep the money on their fee”. Weiner’s former secretary identified the message as having been written by her. She had no independent recollection of the conversation, and, hence, could give no further details.

Based on that telephone memo, Weiner immediately applied the $480 in child support money to payment of his fee for services. An entry dated 1/23/70 in Weiner’s handwriting on the ledger card showing fees due from Turners, shows a credit of $480 as follows: “From trust, four hundred and eighty dollars ($480.00).” Although Weiner had not talked to Mrs. Turner (or to Turner) and had only the memo from his secretary, he did not then write a letter to the Turners to confirm the telephone call and to say that pursuant thereto, he had applied the $480 on his unpaid fees. He had nothing in writing from the Turners authorizing a change in the terms of the trust arrangement and he did not even write to them to state what he had done on the basis of his understanding that Mrs. Turner had authorized this action.

Weiner relies heavily on a tape of a conference held with the Turners in his office on March 6, 1970. It is his contention that this confirms the fact that Mrs. Turner, by a phone call to his secretary on January 23, 1970, authorized application of the $480 on fees. The Turners had come on March 6 to see Weiner because the Kentucky authorities were after him again and were threatening to put him in jail. Turner kept asking Weiner to release the $480 for application on support payments but Weiner said repeatedly, “I’m not going to release any money,” adding, “I can’t believe they would put him in jail for $480.00.”

I cannot conclude that Mrs. Turner confirmed at that March 6, 1970, conference that she had authorized Weiner’s secretary on January 23, 1970, to apply the $480 on fees. The recording is very hard to understand. Fortunately, we were furnished a transcript thereof prepared by a court reporter. I find two brief references therein which make reference to Mrs. Turner’s call on January 23, 1970. The first is as follows:

“MR. WEINER: I’m not going to release any money. Terry called up here — first off, I told her a long time ago since you guys broke every bit of promises you made, that I was going to apply it toward fees. Terry called up here like a month or six weeks ago or two months, and told Marg to put it on fees, and she wanted your file, she said, ‘Figure up all my time,’ I did, I pulled the cotton pickin’ file and that’s why the card is in the file. And I dictated a detailed breakdown on what I figured it up for you.
“TERRY TURNER: I told you when I went to work I would start bringing you in some money.
“MR. WEINER: Then you — yes, she told me she was going to go to work like six weeks ago.
“TERRY TURNER: I have went to work.
“MR. WEINER: But I haven’t seen any money.
“TERRY TURNER: I haven’t drawed a cheek either.”

In that exchange, Mrs. Turner did not confirm that she had authorized application of the trust money on fees. Instead, she indicated that she had said she would start working and would bring in some money.

The other reference to the January 23, 1970, telephone conversation was as follows:

“MR. WEINER: Six weeks ago when you called, you know, you gave Marg the message and this is exactly what we did, we put that money towards fees. And I took you at your word, which is when you started drawing a check you would bring in, you know, money each week. Isn’t that what you told me, right?
“TERRY TURNER: Yeah.
“MR. WEINER: O.K. Now, I haven’t bugged you since then because I — the same thing I didn’t bug you as we proceeded along. I liked you, felt sorry for you, I knocked my brains out for you.”

In his first statement, Weiner refers to the phone call and application to fees and then he says: “And I took you at your word, which is when you started drawing a check you bring in, you know, money each week. Isn’t that what you told me, right?” Mrs. Turner then responded “Yeah”. I think it is clear that the statement was in response to Weiner’s direct question to her about what she would do when she started to work. It is not a confirmation that she had told Marge, the secretary, to apply the $480 on fees. Counsel for Weiner in the hearing before the master acknowledged, as the master’s report shows, that this response by Mrs. Turner was ambiguous.

As a matter of fact, the purpose of the visit and conference, which was to get Weiner to release the $480 to the Kentucky authorities and avoid the possibility of Turner being jailed, is consistent with the proposition that the money was still being held in trust for that purpose and had not already been disbursed. This is confirmed by this statement by Turner to Weiner in that conference:

“BILL TURNER: If you can go down there and get this straightened out where I can make payments on the back child support, you keep the $530.00 or $510.00, and I’ll bring you — I’ll give you $40.00 today and every week that I get paid, which she doesn’t get paid, I’ll bring you $20.00. And the week she gets paid, I get bring, we will pay you $40.00.
“MR. WEINER: All right.”

In commenting on this taped conference, the master in his report to this court states:

“ * * * One must keep in mind that at the time of the taped conversation, i. e. March 6,1970, the $480 had already been transferred to the fee account and also that the purpose for which it was deposited had not been accomplished. Mr. Turner was in trouble for not making the payment for child support and he and his wife had requested Mr. Weiner to ‘release the money I got . . .’ Mr. Turner stated they would put him in jail if Mr. Weiner didn’t release the money. Mr. Weiner told them at the outset of the conversation that, T am not going to release the money.’ (Exhibit 8, page 2) Mr. Turner finally told Mr. Weiner that, ‘if he could get this straightened out where I can make payments on the back child support, you keep the money (that was turned over to Weiner).’ At that time the arrearage was over $1,000.
“No reasonable interpretation of the taped conversation shows that Mr. Turner authorized and consented on that occasion to the use of the funds for a fee. Mr. Turner had been jailed for failure to pay support money (Ohio T, page 452) and it is obvious he was afraid of being placed back in jail. He was desperately trying to make the best of a bad situation when he told Respondent ‘If you can go down there (Kentucky) and get this straightened out where I can make payments on the child support, you keep the $530 or $570 [sic] and I will bring you $40 today and every week.’ (Exhibit 8, page 9) It appears to be true that Mr. Weiner did at a later date work out an agreement (3-19 T, page 53) wherein Mr. Turner was to pay $10 per week over the child support allowance which could be applied to the arrearage, but this does not change in any way whatsoever the misapplication of the $480 trust fund.
“The Turners in their testimony at the hearing on April 24, 1976, were unsure of many things and had difficulty recollecting. This, of course, is natural considering a lapse of time of six years or more since the events occurred. However, Mrs. Turner continued to insist that in her conversation with Mr. Weiner’s secretary she told her that if Mr. Weiner used the money for fees, she would personally see what could be done about it. (4r-24 T, pages 42-44)
“Again referring to the taped conversation, it was Mr. Weiner who stated to the Turners that Terry Turner had told his secretary to apply the trust fund to fees. Terry Turner was interrogated about this and she pointed out, and counsel for Respondent agreed, that the result is very ambiguous. (4-24 T, page 45) Again Respondent fails to prove consent.”

The transcript in this case indicates that from the very time the $480 was deposited in trust, Weiner had an obsession about payment of his fees. Prior to August 20, 1969, respondent had directed Turner to bring in $500 for his retainer fee plus $500 to be held in trust until arrearages could be determined or settled. The Turners borrowed the $480 for purposes of settling back child support charges but brought in no money for the requested retainer. From that time on, Weiner kept after Turners to pay his fee. By September 28,1969, he had determined on a bill for $800, for which he took a note. His whole attitude and philosophy appears in some answers he gave in response to questions by counsel for the Advisory Committee and by the master. At page 109 of the transcript, respondent was asked this question: “If, after the agreement which you alleged happened, occurred in September of 1969, it had been determined that your client owed five hundred dollars ($500.00) in back child support, would you have applied that four hundred and eighty dollars ($480.00) in trust to that back child support or would you have not done so?” For several pages respondent sparred and evaded, making such responses as the question was purely hypothetical, there was still a dispute as to whether there was any arrearage, etc. He finally conceded that “once an arrearage would be determined, there would be a need to have some money available if we were going to negotiate it, yes.” However, he would not and did not say that if such were determined, this trust money would have been available for that purpose. Judge McMullan pressed respondent with numerous questions seeking an answer to the question of what, after September 28, 1969, the trust money would have been used for, if, say in October, it was determined that there was ar-rearage of $500. Finally, at p. 123 of the transcript, he stated this question to Weiner. “Well, I’m going to ask you a simple question, which had priority after September, of the trust fund; any claim for arrear-age or your fee? Weiner responded thus: “All right; based on the agreement, at that time, if they had never paid my fees, the priority was that the money would be utilized toward my fees, rather than using it for negotiating on any arrearage that might become due.”

That, I submit, tells the story. To me, it is apparent that at least from and after September 28, 1969, Weiner had no intention of utilizing the $480 for delinquent child support payments unless meanwhile the Turners had paid his fee. His testimony before the master and the postscript to the letter of December 17, 1969, so show. The evidence indicates, to me, that Weiner really made no real effort to ascertain the amount of an arrearage and to resolve that question until after the $480 had been applied to his fee.

I find it inconceivable that on this record we should hold that Missouri should not discipline respondent in any way, in effect saying to respondent that you are free tomorrow to come to Missouri and start practicing, regardless of whether Ohio does or does not sustain your motion for reinstatement.

I would hold, as did the master, that Weiner has not proved that he was given authority to divert the trust funds to paying himself and that the evidence discloses that Weiner did violate the applicable canon and disciplinary rule with reference to handling these trust funds.

I would suspend respondent indefinitely, with leave to apply for reinstatement after two years.

      . The telephone message forms were in duplicate, bound in a pad, four to a page, with carbon paper in between, so that the making of the original also produced a duplicate carbon copy. The secretary would tear out the original and give it to Mr. Weiner and the carbon copy stayed in the pad. The carbon copy of the Terry Turner call shows the call came in at 2:50 p. m. It is in the pad in sequence along with other telephone calls before and after it on January 23, 1970.

      . Although respondent applied the $480 to his fee on January 23, 1970, he did not return Turners’ papers as the telephone memo indicated he was to do. In the later conference on March 6, 1970, respondent told the Turners he would not return their papers until he was paid in full.

      . The reference to $530 or $510 was to the $480, plus some other amounts left with Weiner which were in dispute and which perhaps were used for fees or some other purpose.


author: DONNELLY, Judge.

text:
    MANAGEMENT SERVICES, INC., Respondent, v. James R. SPRADLING, Director of Revenue, State of Missouri, Appellant.
    No. 59470.
    Supreme Court of Missouri, en banc.
    March 14, 1977.

      S.Joel Wilson, Asst. Atty. Gen., Jefferson City, for appellant.
    William H. Sanders and Jack F. Olson, Kansas City, for respondent.
   DONNELLY, Judge.

This appeal involves the construction of the Missouri Compensating Use Tax Law, § 144.600, et seq., RSMo 1969. This Court has jurisdiction of the cause pursuant to Article V, § 3, Mo.Const., because it involves the construction of a revenue law of the state.

Respondent, Management Services, Inc., is the owner of all issued and outstanding capital stock of several insurance companies, all of which are headquartered in Kansas City, Missouri. Management Services furnishes the administrative officers and employees for the insurance companies. The parent company also maintains a transportation department that makes travel arrangements for its employees.

On October 22, 1969, Management Services placed an order with Gates Aviation Corporation for the purchase of a Learjet, Model No. 25. Its Vice President and Secretary, Alfred Kuraner, negotiated the purchase of the craft and signed the purchase order accepted by Gates Aviation in Denver, Colorado, on October 30, 1969.

The aircraft was assembled in Wichita, Kansas, and flown to Denver. On January 8, 1970, the airplane was delivered to Respondent’s pilot in Colorado in exchange for Respondent’s check for $928,000 which represented payment in full for the jetcraft. Several test flights were conducted by the pilot and the co-pilot employed by Respondent. On January 21, 1970, the plane was flown to Kansas City. On January 23,1970, the plane was flown to Wichita, Kansas, to the Learjet Assembly and Service Center, and returned to Kansas City the same day. On January 25, 1970, Respondent began to use the new aircraft for business purposes, chiefly the transportation of its executives to its 20 branch offices located across the nation and in Canada. In the interval from January 21, 1970, through October 31, 1971, the plane was hangared in Kansas City on 136 occasions.

The Department of Revenue of the State of Missouri, on March 31, 1970, levied a tax of $27,840 on the aircraft. The tax was paid by Respondent under protest. Respondent also filed a claim for a tax refund in an amount identical to the tax levied and paid. In a hearing before the Department of Revenue the claim for refund was denied. Respondent obtained review of the decision of the Director of Revenue in the Circuit Court of Jackson County which held that the use of Respondent’s airplane was not taxable under § 144.610, RSMo 1969. Appeal from that judgment of the circuit court was made to this Court by the Director of Revenue.

We consider first whether Missouri may constitutionally impose a use tax on Respondent’s aircraft, and, secondly, if the use tax is constitutionally valid, whether Respondent’s aircraft falls within an exemption provided by the Compensating Use Tax Law.

The tax for the use of Respondent’s aircraft was levied pursuant to § 144.610, RSMo 1969, which provides:

“1. A tax is imposed for the privilege of storing, using or consuming within this state any article of tangible personal property purchased on or after the effective date of sections 144.600 to 144.745 in an amount equivalent to the percentage imposed on the sales price in the sales tax law in section 144.020. This tax does not apply with respect to the storage, use or consumption of any article of tangible personal property purchased, produced or manufactured outside this state until the transportation of the article has finally come to rest within this state or until the article has become commingled with the general mass of property of this state.
“2. Every person storing, using or consuming in this state tangible personal property purchased from a vendor is liable for the tax imposed by this law, and the liability shall not be extinguished until the tax is paid to this state, but a receipt from a vendor authorized by the director of revenue under the rules and regulations that he prescribes to collect the tax, given to the purchaser in accordance with the provisions of section 144.-650, relieves the purchaser from further liability for the tax to which receipt refers.”

No state may impose a tax on transaction of interstate commerce, U.S. Const. Art. I, § 8; however, use taxes have consistently been upheld by the United States Supreme Court and recognized as not only a means to augment state revenues but also as a means to eliminate the incentive to purchase from out-of-state merchants in order to escape local sales taxes thereby keeping in-state merchants competitive with sellers in other states. Henneford v. Silas Mason Company, 300 U.S. 577, 581-583, 57 S.Ct. 524, 81 L.Ed. 814 (1937); Southwestern Bell Tele. Co. v. Morris, 345 S.W.2d 62 (Mo. banc 1961).

The Missouri use tax is not imposed upon the article or upon its sale; rather, the tax is levied on the privilege of using, storing or consuming the article within this state. The primary function of the use tax is to complement, supplement, and protect the sales tax by creating “equality of taxation of purchases or use of property purchased outside the state which cannot be reached as sales because of the commerce clause of the federal constitution.” Farm and Home Savings Ass’n v. Spradling, 538 S.W.2d 313, 317 (Mo. banc 1976).

In Southern Pacific Company v. Gallagher, 306 U.S. 167, 176-178, 59 S.Ct. 389, 393-394, 83 L.Ed. 586 (1939), the Supreme Court upheld application of the California use tax to rolling stock and other railroad equipment, and said:

“In the present case some of the articles were ordered out of the state under specification suitable only for utilization in the transportation facilities and installed immediately on arrival at the California destination. * * * We think there was a taxable moment when the former had reached the end of their interstate transportation and had not begun to be consumed in interstate operation. At that moment, the tax on storage and use — retention and exercise of a right of ownership, respectively — was effective. The interstate movement was complete. The interstate consumption had not begun. * * * ‘Practical continuity’ does not always make an act part of interstate commerce. This conclusion does not give preponderance to the language of the state act over its effect on commerce. State taxes upon national commerce or its incidents do not depend for their validity upon a choice of words but upon the choice of the thing taxed. It is true, the increased cost to the interstate operator from a tax on installation is the same as from a tax on consumption or operation. This is not significant. The prohibited burden upon commerce between the states is created by state interference with that commerce, a matter distinct from the expense of doing business. A discrimination against it, or a tax on its operations as such, is an interference. A tax on property or upon a taxable event in the state, apart from operation, does not interfere. * *

It is conceded that on January 20, 1970, Respondent’s plane was flown to Missouri, that it was flown to Kansas and returned to Missouri on January 23, 1970, and that Respondent began to use the plane for interstate purposes on January 25,1970. There was, therefore, a time during which the plane had reached the end of its interstate transportation and had not begun to be consumed in interstate operation. This period of time was the “taxable moment” defined by the United States Supreme Court in Southern Pacific v. Gallagher, supra. We hold the assessment of the use tax was constitutionally valid. There is support in other states for this conclusion. See Flying Tiger Line v. State Board of Equalization, 157 Cal.App.2d 85, 320 P.2d 552 (1958); Sundstrand Corporation v. Department of Revenue, 34 Ill.App.3d 694, 339 N.E.2d 351 (Ill.App.1975); In Re Woods Corporation, 531 P.2d 1381 (Okl.1975); Vector Company v. Benson, 491 S.W.2d 612 (Tenn.1973); Aspen Airways Inc. v. Heckers, 499 P.2d 636 (Colo.App.1972).

Turning to its alternative argument, Respondent contends that even if the plane had been sufficiently withdrawn from interstate commerce to create a taxable moment, Respondent is still exempt from taxation because of its use of the aircraft outside the state. Under § 144.610.1 the use tax is imposed on the privilege of storing tangible personalty purchased from outside the state. “Storage,” by definition under § 144.605(7) is “any keeping or retention in this state of tangible personal property purchased from a vendor for any purpose, except sale or subsequent use solely outside the state.” Respondent asserts that the phrase “solely outside the state” should be interpreted to include use which is wholly interstate in character. We do not agree. We find no ambiguity in the phrase “solely outside the state.” In the period from January 21, 1970, through October 31, 1971, Respondent’s plane was hangared in Kansas City on 136 occasions. It was not used “solely outside the state.”

The judgment is reversed.

All concur.


text:
    Helen LEWANDOWSKI et al., Appellants, v. John C. DANFORTH, Attorney General, State of Missouri, Respondent.
    No. 59509.
    Supreme Court of Missouri, en banc.
    March 14, 1977.
    Charles C. Shafer, Jr., Kansas City, for appellants.
    Harvey M. Tettlebaum, Asst. Atty. Gen., Jefferson City, for respondent.
   DONNELLY, Judge.

In this cause, the constitutionality of § 407.040, RSMo Supp.1973, is questioned. It reads as follows:

“1. When it appears to the attorney general that a person has engaged in or is engaging in any act or practice declared to be unlawful by sections 407.010 to 407.130 or when he believes it to be in the public interest that an investigation should be made to ascertain whether a person in fact has engaged in or is engaging in any such act or practice, he may execute in writing and cause to be served upon any person who is believed to have information, documentary material, or physical evidence relevant to the alleged or suspected violation, an investigative demand requiring such person to appear and testify, or to produce relevant documentary material or physical evidence for examination, at such reasonable time and place as may be stated in the investigative demand, concerning the advertisement, sale or offering for sale of any goods or services or the conduct of any trade or commerce that is the subject matter of the investigation; except that, this section shall not be applicable to criminal proceedings.

“2. Each civil investigative demand shall

“(1) State the statute and section thereof, the alleged violation of which is under investigation, and the general subject matter of the investigation;

“(2) Describe the class or classes of information, documentary material, or physical evidence to be produced thereunder with reasonable specificity so as fairly to indicate the material demanded;

“(3) Prescribe a return date within which the information, documentary material, or physical evidence is to be produced; and

“(4) Identify the members of the attorney general’s staff to whom such information, documentary material, or physical evidence is to be made available.

“3. No civil investigative demand shall:

“(1) Contain any requirement which would be unreasonable or improper if contained in a subpoena duces tecum issued by a court of this state; or

“(2) Require the disclosure of any documentary material which would be privileged, or which for any other reason would not be required by a subpoena duces tecum issued by a court of this state.

“4. Service of any civil investigative demand, notice, or subpoena may be made by:

“(1) Delivering a duly executed copy thereof to the person to be served or to a partner or to any officer or agent authorized by appointment or by law to receive service of process on behalf of such person;

“(2) Delivering a duly executed copy thereof to the principal place of business in this state of the person to be served; or

“(3) Mailing by registered or certified mail a duly executed copy thereof addressed to the person to be served at the principal place of business in this state or, if said person has no place of business in this state, to his principal office or place of business;

“(4) The mailing thereof by registered mail, requesting a return receipt signed by the addressee only, to the last known place of business, residence or abode within or without this state of such person for whom the same is intended.”

Appellants, the principals of Pen Pals International (PPI), instituted this proceeding by filing in the Circuit Court of Jackson County a Petition to Set Aside the Civil Investigative Demand (CID) issued by Respondent, the Attorney General of Missouri. The CID called for production by appellants of:

1. the actual number of solicitations mailed by PPI to Missourians since January 1, 1975;

2. the number of State residents who enrolled with PPI under the “half price discount offer”;

3. the names of members across the nation who are known by PPI to have formed “strong and romantic attachments” and “marriages” that resulted from associations formed through PPI;

4. a gross income and cost statement, including the salaries, wages and profits of all employees and owners;

5. a list of names, addresses and phone numbers of all Missourians who have joined PPI since January 1, 1975;

6. a list of the names and addresses of all employees, past or present, of PPI since January 1, 1975.

The information sought by Respondent was demanded under the authority of § 407.040, supra. Respondent claimed to believe appellants have used “fraud, deception or misrepresentation in connection with the sale and advertisement of the above goods and services including, but not limited to misrepresentation of the enterprise as a non-profit organization, and misrepresentation of the possibility of forming ‘strong and romantic’ attachments through referrals by Pen Pals International.”

In response to appellants’ petition, Respondent filed a motion to dismiss on the grounds of improper venue and because the petition failed to state a cause of action. The circuit court agreed that no cause of action was stated in the petition, and the case was dismissed without prejudice and with 20 days leave granted appellants to file an amended petition. Appellants filed a Motion to Set Aside the Court’s Order which was overruled. Appeal was perfected to this Court.

Before considering the challenges to § 407.040, supra, which authorizes the Attorney General of this State to issue a CID, we note the similarity of § 407.040 to procedures in the Federal Antitrust Civil Process Act found codified at 15 U.S.C.A. § 1312. Since the Missouri CID statute has received virtually no judicial attention, the best available authority on the subject consists of federal decisions which have construed and applied the provisions of the Federal Antitrust Civil Process Act. (In State ex rel. Danforth v. Independence Dodge, Inc., 494 S.W.2d 362, 363 (Mo.App.1973), Judge Wasserstrom noted the parallel between the federal and state laws but did not find it necessary to rule on the authority and scope of a CID). See generally, Annot. 10 A.L.R. Fed. 677; von Kalinowski, Antitrust Laws and Trade Regulations, Vol. 16L, § 93 (1976).

Appellants allege in a vague and indefinite fashion that the CID procedure denies them due process of law. An examination of § 407.040 and § 407.070 reveals that persons served with a CID are fully afforded the protection of procedural due process. In Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556 (1972) the Supreme Court said:

“For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ Baldwin v. Hale, 1 Wall. 223, 233, 68 U.S. 223, 233, 17 L.Ed. 531, 534. See Windsor v. McVeigh, 93 U.S. 274, 23 L.Ed. 914; Hovey v. Elliot, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215; Grannis v. Ordean, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363. It is equally fundamental that the right to notice and opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner.’ Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62, 66.”

Moreover, due process is not a static or rigid concept. As recognized in Stanley v. Illinois, 405 U.S. 645, 650, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972), “due process of law does not require a hearing ‘in every conceivable case of government impairment of private interest.’ Cafeteria Workers v. McElroy, 367 U.S. 886, 894, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230, 1236 (1961). That case explained that ‘[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation’ and firmly established that ‘what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.’ Id., at 895, 81 S.Ct., at 1748 [6 L.Ed.2d at 1236]; Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287, 296 (1970).”

Although in this instance the government function involved, that of investigation of suspect merchandising practices, is one of considerable importance to the general public, the legislature has not bestowed unbridled authority upon the Attorney General to pursue this mission at the expense of any individual’s entitlement to procedural due process.

A CID issued by the Attorney General must comport with the requirements of § 407.040 which requires reasonable notice of the conduct under investigation and specific notice of the documents to be produced. See generally, Hyster Co. v. United States, 338 F.2d 183 (9th Cir. 1964); and in Petition of Gold Bond Stamp Co., 221 F.Supp. 391 (D.C.Minn.1963) aff’d 325 F.2d 1018 (8th Cir. 1964).

Regarding the opportunity to be heard, we must conclude procedural due process has been fully incorporated by statute within the CID process and that persons are afforded adequate notice and a meaningful opportunity to be heard. Section 407.070, RSMo Supp.1973, reads as follows:

“At any time before the return date specified in the demand, or within twenty days after the demand has been served, whichever period is shorter, a petition to extend the return date for, or to modify or set aside the demand, stating good cause, may be filed in the circuit court of the county where the parties reside or in the circuit court of Cole county.”

Appellants finally assert they should not be compelled to disclose certain information in response to the CID because such information constitutes trade secrets. The assertion is premature. It may be made at the time the Attorney General seeks to present such information before any court. § 407.060, RSMo Supp.1973.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Ronald Earl HARRIS, Appellant.
    No. 59720.
    Supreme Court of Missouri, en banc.
    March 14, 1977.

      Blair K. Brazic, St. Louis, for appellant.
    Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
   DONNELLY, Judge.

Appellant, Ronald Earl Harris, was convicted of operating a motor vehicle without the owner’s consent by a jury in the Circuit Court of the City of St. Louis and was sentenced by the trial court, under the Habitual Criminal Act (§ 556.280, RSMo 1969), to imprisonment for a term of five years. Following rendition of judgment and imposition of sentence, an appeal was perfected to the Missouri Court of Appeals, St. Louis District, where the judgment was reversed and the cause remanded. Upon application of respondent, the cause was transferred here by order of this Court. We determine the cause “the same as on original appeal.” Mo.Const. Art. V, § 10.

On March 20, 1973, a car driven by appellant crossed in front of two police officers who were stopped at a stop sign in the City of St. Louis. Because of appellant’s youthful appearance, the police officers stopped appellant and arrested him. The police officers made a check on the car and learned it was stolen.

Appellant asserts the trial court erred “in denying defendant’s Motion for Mistrial after the jury was informed that defendant was charged with an alleged prior conviction because this violated defendant’s right to be tried for the offense with which he was charged.”

The following transpired at trial:

“Q Would you state your name, please?
“A John Tyson.
“Q What is your business or occupation?
“A Deputy court clerk.
“Q In your capacity, who do you work for?
“A Mr. George M. Solomon.
“Q What is his position?
“A Clerk of the Circuit Court for Criminal Causes.
“Q In your capacity as a clerk for the Court for Criminal Causes, are you charged with the care, custody and control of the court’s records?
“A I am.
“Q And are these records made during the normal course of the court’s business? “A They are.
“Q And are these records made at or about the times which are reflected in those records?
“A They are.
“Q At my request did you bring some court records with you today?
“A I did.
“Q Would you identify that, please?
“A Official court file; Cause No. 73-904; Information; State of Missouri vs. Ronald Harris in Cause No. 73-904; on Information; State of Missouri vs. Ronald Earl Harris. The charge of one prior conviction and Operating a Motor Vehicle Without the Owner’s Consent.
“MR. FREDMAN: I’m going to object, your Honor. I’d like to approach the bench.
“(The following proceedings were had at the bench outside the hearing of the jury:)
“MR. FREDMAN: Your Honor, unless I’m mistaken, up until now the jury did not know there was a prior conviction. With his reading that, the jury has now found out there was a prior conviction. Move a mistrial.
“THE COURT: Mistrial denied. Sustained and stricken from the record, the testimony of the witness concerning the prior conviction.
“MR. FREDMAN: I would like to say for the record that I base my objection on my client’s 5th Amendment right not to be allowed — required to testify against himself.
“(After a conversation at the bench off the record among the Judge and the attorneys, proceedings were resumed within the hearing of the jury as follows:)
“THE COURT: The jury is instructed at this time to disregard the answer of the witness. The objection has been sustained and the witness’ answer concerning the charge as read is stricken from the record. The jury is instructed to disregard it.”

In State v. Camper, 391 S.W.2d 926, 927, 928 (Mo.1965), this Court said:

“The declaration of a mistrial is a drastic remedy, and the power of a trial court in this respect ‘should be exercised only in extraordinary circumstances,’ State v. James, Mo., 347 S.W.2d 211, or stated another way, a mistrial should be granted only when the incident is so grievous that the prejudical effect can be removed no other way. For this reason the declaration of a mistrial necessarily and properly rests largely in the discretion of the trial court who has observed the incident giving rise to the request for a mistrial, and who is in a better position than an appellate court to evaluate the prejudicial effect and possibility of its removal by action short of a mistrial. The proper function of an appellant court in the situation we have before us is to determine whether as a matter of law the trial court abused its discretion in refusing to declare a mistrial, and in offering to strike the answer and instruct the jury to disregard it.”

The trial court ordered the testimony of the witness concerning the prior conviction stricken from the record and instructed the jury to disregard it. We cannot say as a matter of law that the trial court abused its discretion in refusing to declare a mistrial. Appellant’s assertion of error is without merit. Cf. Evenson v. United States, 316 F.2d 94 (8 Cir. 1963); State v. Dennison, 428 S.W.2d 573 (Mo.1968).

Appellant next asserts that the “admission of testimony of Officer Messmer that defendant was given his Miranda warnings after his arrest and that he made no statement in response thereto resulted in manifest injustice and miscarriage of justice and was plain error, * *

The pertinent portion of the record on appeal reads as follows:

“Q What took place then, Officer?
“A After the car pulled to the curb at 4500 Enright, my partner and I alighted from the police vehicle and went up to the car and had this driver step outside of the auto, and I asked him for his driver’s license, to which he stated he had no driver’s license. At this time I advised him he was under arrest for no driver’s license, and my partner advised him of his constitutional rights.
“Q All right. What, if anything, took place then, Officer?
“A The subject made no statement after being advised of his rights. And I asked him who the car belonged to and he said it belonged to his grandfather and made a pointing motion to a house about two doors down from our location and said his grandfather lived there and he would go up there and get him. The subject was under arrest, so I would not let him go up there. I kept him at the ears while my partner went to that address. They did not know him, so my partner came back to the car. He ran the serial number and the license number off the auto and it came back that both the car and license plates were reported stolen.”

We have reviewed the facts and circumstances in this case and have concluded that manifest injustice did not result from the alleged error. Rule 27.20(c); State v. Ellifrits, 459 S.W.2d 293, 297 (Mo. banc 1970); Cf. State v. Lovelace, 461 S.W.2d 733, 735, 736 (Mo.1971).

Finally, appellant asserts the trial court erred “in finding appellant subject to sentencing under Section 556.280, R.S.Mo.1949 [sic], the Second Offender Act, because there was insufficient evidence identifying the appellant with the alleged prior conviction.”

According to the record on appeal, Earl P. Harris entered a plea of guilty to the crime of operating a motor vehicle without the owner’s consent on October 27, 1965, was sentenced to one year in the Workhouse of the City of St. Louis, and was placed on probation. However, there is nothing in the record to show that Earl P. Harris and Ronald Earl Harris are one and the same person. Appellant’s assertion has merit.

Accordingly, as in State v. Hill, 371 S.W.2d 278 (Mo.1963), “the sentence herein is declared void, the judgment is reversed and the cause remanded with directions to the court to cause the defendant to be brought before it to hold a hearing on the issue of former conviction of defendant and if proved to pronounce sentence and judgment against defendant taking all proper procedural steps required therefor by law and the rules of this court but in the alternative if the issue of former conviction be found in favor of defendant to grant him a new trial on all issues.”

SEILER, C. J., MORGAN, BARDGETT, HENLEY and FINCH, JJ., and TUR-NAGE, Special Judge, concur.

RENDLEN, J., not sitting.