text:
    CITY OF WARRENSBURG, Respondent, v. The BOARD OF REGENTS OF CENTRAL MISSOURI STATE UNIVERSITY, Appellant.
    No. 59790.
    Supreme Court of Missouri, en banc.
    March 13, 1978.

      Edward T. Matheny, Jr., Shirley Ward Keeler, Kansas City, Matthew E. Madden, Warrensburg, for appellant.
    William J. Hensley, Warrensburg, for respondent.
   HENLEY, Judge.

This is an action by the City of Warrens-burg (City) seeking a money judgment against the Board of Regents of Central Missouri State University (University) for city imposed sales taxes not collected but allegedly due the City upon sales made (or services rendered) by the University. Submitted to the court upon the pleadings and a stipulation of facts, the case resulted in a judgment for the City for $35,079.61, as taxes due for the period from January 1, 1972, to May 1,1976, and $9,084.66, as interest thereon. The University appealed, contending, inter alia, that sales made by it are exempt from the provisions of the sales tax ordinances by reason of the provisions of sections of state statutes, and, therefore, it was not required to and did not collect the tax and is not liable therefor. This court has appellate jurisdiction, because the construction of revenue laws of this state is involved. Mo.Const. Art. V, § 3.

The stipulation of facts is as follows:

“Plaintiff and Defendant herein jointly stipulate to the following facts for the purposes of this proceeding:
“1. The City of Warrensburg is a municipal corporation existing as a third class city under the laws of the State of Missouri, located in Johnson County, Missouri.
“2. The Defendant Board of Regents of Central Missouri State University constitutes the delegated governing body of the Central Missouri State University, a state university existing under Chapter 174 of the Missouri Revised Statutes and having its main campus and administrative offices in Warrensburg, Missouri.
“3. The Board of Regents of Central Missouri State University may sue and be sued under the provisions of Section 174.-040, RSMo 1969.
“4. The City of Warrensburg Ordinance No. 1622 * * * was passed by the City Council of Warrensburg, Missouri, on August 9, 1971.
“5. City of Warrensburg Ordinance No. 1624 * * * was passed by the City Council of Warrensburg, Missouri, on Sép-tember 21, 1971.
“6. The Warrensburg City Sales Tax referred to in Ordinances 1622 and 1624 became effective on January 1, 1972.
“7. The Warrensburg City Sales Tax imposes upon all persons selling or furnishing tangible personal property at retail or rendering taxable services, a tax for the privilege of engaging in business, said tax to be levied at the rate of One Per Cent (1%) of the gross receipts from sales made or services rendered within the City of Warrens-burg.
“8. The Missouri City Sales Tax Law, Section 94.500 to 94.570, RSMo, became effective on October 13, 1969.
“9. Section 144.040 RSMo was amended in 1971, said amendment becoming effective on September 29, 1971.
“10. Plaintiff has made demand upon Defendant to remit to the Missouri Director of Revenue One Per Cent (1%) of the gross receipts from sales made by the Defendant on its campus at Warrensburg, Missouri, as a tax for the privilege of engaging in the business of selling tangible personal property or rendering taxable service at retail within the City of Warrensburg, Missouri, subsequent to January 1, 1972.
“11. Defendant has denied the applicability of such a tax to it, and has refused to pay such tax.
“12. Central Missouri State University collects a State Sales Tax on sales made by and services rendered by CMSU at its War-rensburg campus, and remits said tax to the Missouri Director of Revenue, under Account No. 051-02463.
“13. Central Missouri State University is not now collecting and has never collected a City Sales Tax on sales made by CMSU or services rendered by CMSU at its War-rensburg campus.
“14. If Defendant is found liable for accrued taxes pursuant to the Warrensburg City Sales Tax Act, payment of such liability would come from the general funds of CMSU.
“15. If Defendant is liable for payment to the City of Warrensburg, of accrued or future City Sales Tax, said liability consists of an amount equal to One Per Cent (1%) of the gross receipts from sales made by CMSU and services rendered by CMSU within the City of Warrensburg subsequent to January 1, 1972, the date on which the Warrensburg City Sales Tax became effective, based on total sales and services subsequent to that date as reported to the Missouri Director of Revenue for purposes of the Missouri State Sales Tax, and subject to the laws of the State of Missouri governing said accountings in regard to the amount subject to tax.”

The authority of cities to enact ordinances imposing a 1% sales tax comes from the City Sales Tax Act. Subsection 1(2) of § 94.540, RSMo 1969, relating to exemptions, adopts by reference the exemption provisions of § 144.040, one of the sections of the state Sales Tax Law. Subsection 1(2) of § 94.540 is, in pertinent part, as follows:

“1. The following provisions shall govern the collection by the director of revenue of the tax imposed by sections 94.500 to 94.570:
* * * * * *
“(2) All exemptions granted to agencies of government, organizations, persons and to the sale of certain articles and items of tangible personal property and taxable services under the provisions of sections 144.010 to 144.510, RSMo, are hereby made applicable to the imposition and collection of the tax imposed by sections 94.500 to 94.570.”

When the City Sales Tax Act was adopted, § 144.040 read as follows:

“In addition to the exemptions under section 144.030 there shall also be exempted from the provisions of sections 144.010 to 144.510, all safes made by or to religious, charitable, eleemosynary institutions, penal institutions and industries operated by the department of penal institutions or educational institutions supported by public funds or by religious organizations, in the conduct of the regular religious, charitable, eleemosynary, penal or educational functions and activities, and all sales made by or to a state relief agency in the exercise of relief functions and activities.” (Emphasis added.)

Section 144.040 was amended in 1971 by dividing it into two subsections and by making changes in the extent or breadth of coverage of the exemption of certain institutions. One change, said by the City to be crucial here, is that the exemption of an “institution of higher education supported by public funds” was narrowed by limiting it to sales made to such institution, so that sales made by such an institution were no longer exempt.

The University contends that the exemption provisions of § 144.040 adopted in 1969 by subsection 1(2) of § 94.540 and thereby made a part of the City Sales Tax Act was not changed by the 1971 amendment of § 144.040. In other words, the University argues that the adoption of specific provisions of a law includes only those provisions as they exist at the time of adoption; that it does not include later modifications of those provisions by amendment of the law adopted, absent a clear expression in the adopting law that it was also intended thereby to adopt any subsequent amendment of those provisions.

This court said in State v. Rogers, 253 Mo. 399, 161 S.W. 770, at p. 772 (1913):

“When a reference statute specifically designates the section or article of the statute of which it is made a part, such reference statute will not be changed or modified by any subsequent change in the statute to which it refers. * * * [W]here the reference statute pertains only to a method of procedure and refers generally to some statute which defines how certain things may be done, such reference statute will be expanded, modified, or changed every time the statute referred to is changed by the Legislature.” See also Gaston v. Lamkin, 115 Mo. 20, 33, 21 S.W. 1100, 1103 (banc 1893).

The court stated the rule succinctly in Crohn v. Kansas City Home Telephone Co., 131 Mo.App. 313, 109 S.W. 1068 at l.c. 1070 (1908): “An act adopting by reference the whole or a portion of another statute means the law as existing at the time of adoption, and does not adopt any subsequent addition thereto or modification thereof.”

In Hassett v. Welch, 303 U.S. 303, 58 5.Ct. 559, 82 L.Ed. 858, (1938) the court resorted to the use of this canon of construction in a case involving the construction of a taxing statute, stating the canon to be: “ ‘Where one statute adopts the particular provisions of another by a specific and descriptive reference to the statute or provisions adopted, the effect is the same as though the statute or provisions adopted had been incorporated bodily into the adopting statute . . . Such adoption takes the statute as it exists at the time of adoption and does not include subsequent additions or modifications of the statute so taken unless it does so by express intent.’ ”

There can be no doubt here as to which provisions of the state Sales Tax Law § 94.540, subsection 1(2) intended to adopt and make applicable to the imposition and collection of the sales tax authorized by the City Sales Tax Act. It adopted the exemption provisions. It did so by making “specific and descriptive reference” to those “particular provisions.” This adoption was of such nature that it did not include any subsequent amendment of those provisions. Therefore, the exemption provisions of the City Sales Tax Act were not affected by and- remain the same as they were before the 1971 amendment of § 144.040. It follows that the sales tax ordinances enacted in 1971 effective January 1,1972, also were not affected by the 1971 amendment of § 144.040. The University is exempt from the imposition and collection of the city sales tax on all sales made by or to it.

Because of the decision made on the one point considered, we need not consider and decide other points briefed by the University advancing reasons why it is not subject to the city sales tax ordinances.

The judgment is reversed.

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

BARDGETT, J., dissents.

      . Sections 94.500 to 94.570 (Laws of Mo. 1969, p. 166; HB 243; effective October 13, 1969).

      . References to sections of the statutes will be to this revision, except where otherwise indicated.

      .Sections 144.010 to 144.510.

      . RSMo Supp.1971 (Laws of Mo.1971, p. 208; SB 72; effective September 28, 1971).

      . Subsection 2 of amended § 144.040 is as follows:
      “2. There shall also be exempted from the provisions of sections 144.010 to 144.510 all sales made to eleemosynary and penal institutions and industries of the state, and all sales made to any institution of higher education supported by public funds, and all sales made to a state relief agency in the exercise of relief functions and activities.” (Emphasis added.)

      . The Kansas City Court of Appeals. Now the Missouri Court of Appeals, Kansas City District.

      . 303 U.S. at 314, 58 S.Ct. at 564, quoting Lewis’ Sutherland on Statutory Construction, 2d ed., Vol. II, pp. 787-8.


source: Caselaw Access Project

author: HENLEY, Judge.

license: Public Domain

text:
    UNION ELECTRIC COMPANY, a Missouri Corporation, Plaintiff-Respondent, v. CITY OF CRESTWOOD et al., Defendants-Appellants.
    No. 60121.
    Supreme Court of Missouri, En Banc.
    March 13, 1978.
    James L. Sullivan, Stephen W. Woodard, St. Louis, W. Ray Raleigh, City Atty., Crestwood, for defendants-appellants.

      Richard D. Schreiber, Elihu M. Hyndman, Richard D. Watters, Lashly, Caruthers, Thies, Rava & Hamel, Clayton, Charles A. Bremer, St. Louis, for plaintiff-respondent.
   HENLEY, Judge.

This is an action brought by Union Electric Company (UE) against the City of Crestwood, et al. (City) seeking: (1) a judgment declaring that the City is without authority to regulate or control by its zoning ordinances the location of that part of an intercity electric transmission line proposed to be constructed and maintained within the city; and, (2) a decree enjoining the City from interfering with the use by UE of a railroad right-of-way for that purpose. The case was transferred to this court for review after the Court of Appeals, St. Louis district, had affirmed a judgment and decree in favor of UE. We affirm.

In Union Electric Company v. City of Crestwood, 499 S.W.2d 480, 481 (Mo.1973), which may be referred to as Crestwood I, the issue presented was “whether a municipal ordinance which prohibits * * * aboveground construction of utility transmission lines is valid.” We held the ordinance invalid for the reason it “invades the area of regulation vested in the Public Service Commission by the General Assembly and hence that Crestwood, in adopting that ordinance, exceeded its authority.” 499 S.W.2d at 483.

In September, 1973, approximately two weeks after the decision of this court in Crestwood I, UE sought a special permit from the City to construct above ground this same intercity transmission line on the same railroad right-of-way involved in Crestwood I. A decision on the application was delayed and since no definite action had been taken, UE filed this suit in September, 1974. After hearings on the application in January and February, 1975, the permit was denied March 11, 1975. Thereafter, this case was submitted to the trial court and resulted, as indicated, in a judgment and decree for UE.

The issue presented in this case, a sequel to Crestwood I, is whether the City may, through the restrictions of its zoning ordinances, regulate or control the location or method of transmission of high voltage electric energy through this municipality for delivery to several parts of UE’s system in the St. Louis metropolitan area.

The basic facts are stated fully in Crest-wood I. In summary, they are that after a study of the needs for electric power within its whole system, UE determined in 1968 that in order to meet growing demands it would be necessary to construct in the southwest part of St. Louis county a high voltage transmission line approximately 8.3 miles long, extending from its Marshall substation, immediately west of Kirkwood, through the City of Crestwood and other communities, as well as part of the unincorporated part of the county, to its Lakeshire substation. A number of alternate routes were studied, but it was determined that the route above described, most of which would be located on rights-of-way of the Missouri Pacific and Frisco railroads, would serve best the purposes of all concerned. Of the total length of the route selected, 1.8 miles is in Crestwood confined to the Missouri Pacific right-of-way, running through industrial, residential and school areas.

In deciding Crestwood I the court relied heavily upon the reasoning of the decision of the Supreme Court of New Jersey in the case of In re Public Service Electric and Gas Company, 35 N.J. 358, 173 A.2d 233 (1969). The New Jersey Supreme Court had before it for decision a two-pronged attack upon the efforts of Public Service Electric and Gas Company to construct and maintain a high voltage electric transmission line through the borough of Roselle. One prong of the attack by the borough was based on its general police power ordinance which required underground installation of all transmission lines carrying more than 33,000' volts. The other was based on an amendment of its local zoning ordinance which required a utility to obtain a permit before erecting, in any zone in the borough, poles and towers for transmission of electric current. After ruling that Roselle’s police power ordinance requiring underground installation was clearly beyond municipal power, because it invaded the area of control vested in the Board of Public Utility Commissioners, and prefatory to its consideration of the attack based upon the zoning ordinance requirement of a permit, the court said:

“Perhaps at this point it would not be amiss to say something, from the standpoint of municipal power, about the legal comparability of this Roselle zoning ordinance amendment and what we have called the borough police power ordinance * * *. There is a striking similarity in purpose and effect between the two regulations. Each basically seeks to assert municipal control over the method of transmission of electric power anywhere within the borough, the first by an absolute prohibition of overhead transmission of more than 33,000 volts, and the second by requiring municipal permit for any tower transmission under standards of local agency judgment confined to detrimental effect upon or necessary convenience of the single community. If, as we have held, the prohibitory legislation is bad for the reason we have given, it is difficult to see why the permissive regulation is not also basically invalid for the same reason.” 35 N.J. at 374, 173 A.2d at 241.

The New Jersey court further said in connection with the above-quoted remarks:

“It would seem to make no difference that the latter was enacted under the guise of zoning legislation. After all, zoning is fundamentally municipal legislation under the police power directed to land use regulation * * * for purposes * * * akin to those which may found the exercise of the power in other situations. Considerable regulation commonly found in zoning legislation could as well, or perhaps more properly, be validly imposed by separate enactment, not by name tied to the zoning ordinance. Conversely, inclusion of such a regulation within the confines of the zoning ordinance does not ipso facto clothe it with validity which it would not otherwise have. * * * Moreover, and of particular significance here, calling something ‘zoning’ cannot cloak a municipality with power to act in a field and in a way which is otherwise foreclosed to it by supervening state legislation or policy.” Id.

Again, we agree with the reasoning and logic of the New Jersey Supreme Court, this time in connection with its decision of the issue involving control by one city through its zoning ordinances of intercity transmission of high voltage electricity.

We conclude and hold that by the application of its local zoning ordinances to this intercity transmission line the City invaded the area of regulation and control vested in the Public Service Commission and thereby exceeded its authority.

The judgment and decree are affirmed.

MORGAN, C. J., and BARDGETT, FINCH, DONNELLY and SEILER, JJ., and WELBORN, Special Judge, concur.

RENDLEN, J., not sitting.


author: DONNELLY, Judge.

text:
    KSD/KSD-TV, INC., a corporation, and the Pulitzer Publishing Company, a corporation, Respondents, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION of Missouri et al., Appellants.
    No. 60342.
    Supreme Court of Missouri, En Banc.
    March 13, 1978.

      Rick V. Morris, Terry C. Allen, Dan J. Chatfield, Div. of Employment Security, Jefferson City, Charles B. Fain, Jefferson City, for appellants.
    Robert B. Hoemeke, Evans, Hoemeke & Casey, St. Louis, for respondents.
   DONNELLY, Judge.

This case involves a construction of § 288.110, RSMo 1969, a portion of the Missouri Employment Security Law. Section 288.110 reads, in pertinent part, as follows:

“Any individual, type of organization or employing unit which has acquired substantially all of the business of an employer, excepting in any such case any assets retained by such employer incident to the liquidation of his obligations, and in respect to which the division finds that immediately after such change such business of the predecessor employer is continued without interruption solely by the successor, shall stand in the position of such predecessor employer in all respects, including the predecessor’s separate account, actual contribution and benefit experience, annual payrolls, and liability for current or delinquent contributions, interest and penalties. If two or more individuals, organizations, or employing units acquired at approximately the same time substantially all of the business of an employer (excepting in any such case any assets retained by such employer incident to the liquidation of his obligations) and in respect to which the division finds that immediately after such change all portions of such business of the predecessor are continued without interruption solely by such successors, each such individual, organization, or employing unit shall stand in the position of such predecessor with respect to the proportionate share of the predecessor’s separate account, actual contribution and benefit experience and annual payroll as determined by the portion of the predecessor’s taxable payroll applicable to the portion of the business acquired, and each such individual, organization or employing unit shall be liable for current or delinquent contributions, interest and penalties of the predecessor in the same relative proportion. * * *.”

Prior to December 30,1973, Pulitzer Publishing Company had approximately 2,000 employees engaged in the business of publishing its newspaper, the St. Louis Post-Dispatch, and approximately 200 employees engaged in the business of operating its radio and television facilities, KSD and KSD-TV. On December 30, 1973, KSD/KSD-TV, Inc. was incorporated as a wholly owned subsidiary of Pulitzer and acquired its broadcasting facilities and employees.

Prior to December 30,1973, Pulitzer’s unemployment contribution tax rate under the Missouri Employment Security Law was 1.4%. After December 30, 1973, the Division of Employment Security continued Pulitzer’s rate at 1.4% but increased KSD/KSD-TV’s rate to 2.7%.

KSD/KSD-TV contended it should be given a rate of 1.4%. It relied upon the second sentence of § 288.110, supra, and asserted:

“We are familiar with Section 288.110 and particularly that provision that to succeed to a rate a company must have ‘acquired substantially all of the business of an employer.’ However, we believe this language must be read in conjunction with the additional proviso in the statute that if two or more employers succeed to the business of an employer, then they can succeed to such employer’s account.
“In our situation nothing has changed but the form. There is no doubt but that if two new companies had acquired respectively the newspaper and broadcasting business of Pulitzer they could succeed to the Pulitzer rate. It seems an absurd statutory construction to hold that while that can occur, when a company transfers a severable portion of its business to a wholly owned subsidiary, the subsidiary cannot succeed to the parent’s rate. We believe when 288.110 is read in its entirety, the legislative intent and statutory scheme clearly would provide that succession should occur in a factual situation like ours.”

The Division of Employment Security has maintained throughout the controversy that KSD/KSD-TV does not “stand in the position” of Pulitzer under the provisions of § 288.110. It was sustained by the Labor and Industrial Relations Commission of Missouri by order dated November 8, 1974.

On November 14, 1974, KSD/KSD-TV filed a Petition for Review in the Circuit Court of Cole County. In July, 1975, the Circuit Court of Cole County reversed the Commission and entered the following Conclusions of Law:

“1. That pursuant to Chapter 288, RSMo, when a parent and subsidiary corporation continue a business without interruption previously operated by the parent alone, the parent and subsidiary should be considered successors to the parent’s previous business operation for the purpose of determining the initial unemployment contribution rate of the subsidiary.
“2. That KSD/KSD-TV Inc., as [of] January 1, 1974, should succeed to the unemployment tax rate of The Pulitzer Publishing Company.”

The Division and Commission then appealed to the Kansas City District of the Court of Appeals, which affirmed. The cause was then transferred here by order of this Court.

The parties agree that KSD/KSD-TV is not a successor to Pulitzer under the first sentence of § 288.110 because it did not acquire “substantially all of the business” of Pulitzer. The parties disagree as to the construction to be given the second sentence of § 288.110.

It would appear that, under the provisions of the second sentence of § 288.110, if two employing units acquire at approximately the same time substantially all of the business of an employer and the division finds that immediately after such change all portions of the business of the predecessor are continued without interruption solely by the two successor employing units, each successor shall stand in the position of the predecessor with respect to “experience rating”, and that the unemployment contribution tax rate applicable to the predecessor would apply to each successor.

However, this is not what happened. Pulitzer retained the newspaper operation. It did not acquire the newspaper operation. And, the Division asserts that substantially all of Pulitzer’s business was not acquired by two employing units on December 30, 1973, “because it does not logically follow that the Pulitzer Publishing Company could acquire a portion of its business which it had prior to December 30, 1973, and which it continued after December 30, 1973.” (Emphasis ours).

If the statute is to be literally applied, the Division’s position must be sustained. However, we believe the word “acquired” should not be given such restrictive legal effect. A statute should not be given a construction which would cause an unreasonable result. State ex rel. Dravo Corporation v. Spradling, 515 S.W.2d 512, 517 (Mo.1974). We believe the practical effect of the transaction of December 30, 1973, was to transform a relationship wherein Pulitzer operated both the newspaper and broadcasting business into a relationship wherein Pulitzer operated the newspaper business and KSD/KSD-TV operated the broadcasting business. The fact that Pulitzer did not acquire the newspaper from a third party on December 30, 1973, is, in our opinion, of minimal consequence. We hold that both should be given the 1.4% rate. To hold otherwise would be to reach an unreasonable result.

The judgment is affirmed.

MORGAN, C. J., BARDGETT, FINCH, RENDLEN and SEILER, JJ., and HOUSER, Special J., concur.

HENLEY, J., not sitting.


author: RENDLEN, Judge.

text:
    STATE ex rel. the BOARD OF POLICE COMMISSIONERS OF the ST. LOUIS METROPOLITAN POLICE DEPARTMENT and Earl T. Halveland and Daniel P. Duffy, Relators, v. The Honorable Paul E. VARDEMAN, Judge of Division Three, Circuit Court, Jackson County, Missouri, Respondent.
    No. 59691.
    Supreme Court of Missouri, En Banc.
    March 13, 1978.
    John C. Livingston, Mark H. Neill, St. Louis Metropolitan Police Dept., St. Louis, Jack D. Rowe, Kansas City, for relators.
    Arthur A. Benson, II, Kansas City, for respondent.
    Wayne W. Schmidt, Americans for Effective Law Enforcement, Evanston, Ill., Malcolm Martin, St. Louis, Thomas Hendrick-son, International Assn, of Chiefs of Police, Gaithersburg, Md., amici curiae.
   RENDLEN, Judge.

Prohibition: In the general election of November, 1974, the people of Missouri by initiative adopted the Missouri Campaign Finance and Disclosure Act [§§ 130.010 et seq., RSMo Supp. 1975] to be effective January 1,1975. Thereafter three members of the Socialist Workers Party of Missouri brought an action in the circuit court of Jackson County against the Missouri Elections Commission and other defendants seeking injunctive relief and attacking portions of the Act as unconstitutional. Plaintiffs in that case alleged provisions of the Act requiring that names of political contributors be disclosed would subject those contributing to official harassment, effectively chilling plaintiffs’ First Amendment rights. Attempting to gather evidence supportive of these allegations, plaintiffs by deposition and subpoena duces tecum sought information and production of documents from relators Halveland and Duffy, members of the St. Louis Police Department. In response to motions resisting these efforts and counter motions thereto, the Honorable Paul E. Vardeman, respondent here, ordered that relators Halveland and Duffy respond to questions propounded in depositions and to produce the requested documents for “in camera” inspection by the court. To prevent enforcement of those orders, relators petitioned for writ of prohibition from the Missouri Court of Appeals, Kansas City district, which issued its provisional rule. Upon request of the Court of Appeals, we accepted transfer of the cause prior to opinion.

The underlying issue in Mutnick is the constitutionality vel non of portions of the Missouri Campaign Finance and Disclosure Act. In this regard, by our recent opinion in Labor’s Educational and Political Club— Independent et al. v. Danforth, Missouri Elections Commission et al., 561 S.W.2d 339 (Mo. banc 1978), the Act in its entirety [Chapter 130, RSMo 1975] was declared constitutionally infirm and void. That decision resolved the underlying issue in Mutnick and a further determination of such statutory invalidity would serve no purpose. Mutnick has been rendered moot and is subject to dismissal by the circuit court. Further discovery proceedings or disclosures by relators in that action are not required. The provisional rule in prohibition issued by the court of appeals and taken by us prior to opinion is made absolute to the extent that respondent is prohibited from further action or orders directing or permitting discovery in said cause. The requirement of the rule prohibiting any further action in that case is modified and the circuit court may dismiss the underlying action as moot.

All concur.

      . The style of that action is: Barbara Mutnick, et al. v. Missouri Elections Commission, et al., No. CV75-1278, in the Circuit Court of Jackson County. For convenience it shall be hereinafter referenced as Mutnick.


text:
    Allan Dean SPENCER, Petitioner, v. Wyman BASINGER, Sheriff of Cole County, Missouri, Respondent.
    No. 60018.
    Supreme Court of Missouri, En Banc.
    March 13, 1978.

      Harvey M. Tettlebaum, Jefferson City, for petitioner.
    Thomas J. Brown, III, Asst. Pros. Atty., Jefferson City, for respondent.
   RENDLEN, Judge.

Petitioner, accused of stealing more than $50 in violation of § 560.156 RSMo 1969, was arrested January 29,1976, taken immediately to the Cole County jail and on April 8 tried and found guilty as charged. The jury assessed as punishment a fine of $500 and one year in the county jail, the maximum jail sentence permitted under § 560.-161-1(2), RSMo 1969. On May 3 judgment was entered on the verdict and costs taxed against defendant [petitioner]. The trial court finding petition insolvent and unable to pay the costs, directed the issuance of a fee bill. On the date of judgment petitioner had been held in custody ninety-four days but received no credit against his one year jail term by the trial court. His confinement in the county jail continued through January 28, 1977, and at that time the ninety-four days presentence and the two hundred seventy-two days of post-sentence incarceration totaled three hundred sixty-six consecutive days.

Alleging completion of his one year term, Spencer petitioned for habeas corpus to the circuit court of Cole County but was denied relief February 3,1977. Thereafter he petitioned here and our writ of habeas corpus issued February 23, 1977 directing petitioner’s release on his own recognizance pending final disposition of these proceedings. For reasons now discussed, we order petitioner’s discharge.

Two issues are presented. [1] Petitioner’s entitlement vel non to credit under § 546.-615, RSMo Supp.1975, for jail time prior to date of the judgment imposing sentence and [2] whether an indigent felon, unable to pay a fine and costs, can under the circumstances here, be required to serve time in jail in lieu of payment.

I

The issue concerning a felon’s entitlement to jail time accumulated before judgment, when sentenced to confinement other than in custody of the division of corrections, was answered in In re Turley, 496 S.W.2d 865 (Mo.App.1973). There the court of appeals held that a convicted felon sentenced to a term in the St. Louis City Workhouse must be given credit against such sentence for time in City Jail prior to trial. The ruling of the court of appeals and its interpretation of § 546.615 is approved and given application here. In apparent disregard of the holding in Turley, respondent contends the statutory clause “both awaiting trial and pending transfer to the division of corrections” (emphasis ours) in subsection (1) implies that jail time credit is mandatory only in cases “where defendant is sentenced to a term in an institution under the control of the division of corrections” and when time is “spent by him in prison or jail both awaiting trial and pending transfer.” Respondent insists if the legislature had intended otherwise it would have employed the disjunctive “or” instead of the conjunctive “and”. Similar arguments were rejected by the court in Turley. The inclusion of the term “both” immediately before the phrases “awaiting trial” and “pending transfer” makes clear that credit toward service of the sentence relates to jail time before trial and/or after judgment of conviction while awaiting transfer to the division of corrections. Further, respondent’s contention if taken to its logical end, could produce absurd results. For example, if a felon had served no time in jail before conviction but was incarcerated awaiting transfer to prison, he would be denied credit of such time toward service of the sentence imposed. This result would obtain under respondent’s view though the prisoner is taken to an institution under the control of the division of corrections.

Respondent also contends the title of § 546.615 demonstrates a legislative intent of limiting its application to individuals sentenced to the custody of the division of corrections. He argues that “if the title is restrictive, the act must also be restrictive.” This generalization though valid is inappo-site here. The title to House Bill 262, Laws of Missouri, 1959, predecessor of § 546.615, reads as follows:

“An Act relating to calculating the terms of imprisonment of persons convicted of criminal offenses.”

The title language of § 546.615, Laws of Missouri, 1971 (repealing the section enacted in 1959), to which respondent points is:

“An act to repeal section 546.615, RSMo 1969, relating to credit of jail time against sentence to department of corrections and to enact in lieu thereof one new section relating to the same subject.” (Emphasis added.)

It is apparent the language of the title to the 1971 act refers to and incorporates the title of its 1959 predecessor. Under such circumstances, as held in State ex rel. Mueller Baking Co. v. Calvird, 338 Mo. 601, 92 S.W.2d 184 (1936) and Downey v. Schrader, 353 Mo. 40, 182 S.W.2d 320 (banc 1944), when construing the title of a statute repealing another, the title of the original statute is controlling. In this case the title of the earlier statute broadly includes mandatory jail time credit for those sentenced to a term in county jail or city workhouse and not just those sentenced to serve in the custody of the division of corrections.

Respondent finally contends that § 546.-615(3), requiring the officer delivering one convicted to the division of corrections to “endorse upon the commitment papers the length of time spent by the prisoner in jail prior to delivery to the division” indicates § 546.615 applies only to those sentenced to the custody of the division of corrections. We do not agree. Subsection (3) does not so limit § 546.615, rather it prescribes the procedure for proof and transmittal of the record of mandatory credit for convicted persons delivered into the division’s custody. On the other hand, the record of those whose incarceration continues in the county jail' would remain in the possession of that facility and no such endorsement and transmittal would be required.

For the reasons above, petitioner should have been and is hereby credited with ninety-four days incarceration prior to sentencing against his one year term in the county jail and we hold that term has been fully served.

II

Petitioner contends he should be released without payment of the $500 fine because he served more than two hundred fifty days and such should be credited at the rate of $2.00 a day under § 551.010, RSMo 1969, in satisfaction of the fine. His argument overlooks the fact that § 560.161, RSMo 1969 provides punishment of both imprisonment in the county jail up to a year and a fine up to $1,000. These are separate elements of punishment, and time served in jail for the period imposed does not affect the fine. Such time (i. e., one year) spent in jail as punishment assessed is not within the purview of § 551.010, RSMo 1969. The statute deals with detention “for the nonpayment of any fine or costs” not with detention as punishment imposed on a finding of guilt. The language of the section provides in part:

“Any person detained in prison for the nonpayment of any fine or costs . may be ordered to be discharged from such imprisonment . . . after being imprisoned one day for every two dollars of such fine and costs, or after having endured twenty days actual imprisonment for the nonpayment of costs, if he be unable to pay the same.” [emphasis added]

Nevertheless it appears from the record petitioner was indigent at the time of incarceration and also when filing his petition here. He was unable to retain counsel and has been allowed to proceed before this court in forma pauperis. Petitioner has filed an affidavit and inventory of his property, stating that he is unable to pay the fine and costs. He has tendered all his nonexempt property to the Sheriff of Cole County, though the tender was refused. A prima facie showing of indigency has been made. Under such circumstances petitioner may not be confined further at this time for nonpayment of fine and costs. See Hendrix v. Lark, 482 S.W.2d 427 (Mo. banc 1972). This is not to suggest that those who neglect or refuse to pay a fine may not be incarcerated for their refusal so to do within the constitutional standards described in Hendrix. That case dealt with the “work off” provisions for payment of fines and costs in the charter of the City of St. Louis. The constitutional principles discussed there have application to the general statutory scheme regulating the imprisonment for fine and costs in criminal cases under the statutes of Missouri.

Petitioner is ordered discharged. Further proceedings may be had however for collection of fine and costs and when such are undertaken, a hearing should be held to determine petitioner’s then financial condition. If unable to make immediate payment because of indigency, petitioner should be afforded an opportunity to pay fine and costs by reasonable installments fixed by the court in light of his ability to pay. Finally, as petitioner has served twenty-six days in excess of the one year sentence, proper credit for those days must be allowed against any amounts due and any future confinement for fine and costs.

All concur.

      .Section 546.615, RSMo Supp.1975 provides:
      “1. A person convicted of a felony in this state shall receive as credit toward service of the sentence imposed all time spent by him in prison or jail both awaiting trial and pending transfer to the division of corrections.
      2.In the event such time is required by law to be credited upon some other sentence it shall be applied to that sentence and not as set out in the preceding subsection. Credit shall be applied to each sentence rendered if they are to be concurrent.
      3.The officer required by law to deliver a convicted person to the division of corrections shall endorse upon the commitment papers the length of time spent by the person in prison or jail prior to his delivery to the division.”


author: MORGAN, Chief Justice.

text:
    STATE of Missouri ex rel. Willie JAMES, Relator, v. Lynman STAMPS, Warden, St. Louis Medium Security Institution, Respondent.
    No. 59792.
    Supreme Court of Missouri, En Banc.
    March 13, 1978.
    Robert C. Babione, Public Defender, Christelle Adelman-Adler, Asst. Public Defender, St. Louis, for relator-petitioner.
    Jack L. Koehr, Thomas J. Ray, St. Louis, for respondent.
   MORGAN, Chief Justice.

Willie James, hereinafter referred to as Relator, was arrested on December 25,1975, in St. Louis on charges arising out of a shooting incident. Being charged with Assault With Intent To Do Great Bodily Harm Without Malice (§ 559.190, RSMo 1969), he was transferred to the custody of the Sheriff of the City of St. Louis pending trial. For reasons not now relevant, he was held in the jails of several rural counties as well as that of the city until August 16, 1976. On that date, he entered a guilty plea in the Circuit Court and was sentenced to ten months in the St. Louis Medium Security Institution.

On August 26,1976, Relator initiated this habeas corpus proceeding. A writ issued directing Relator’s release on his own recognizance pending disposition and the cause has now been briefed and submitted.

Relator relies on two statutory provisions. First, that he has served more than three-fourths of his sentence in an orderly and peaceable manner and is entitled to discharge under § 216.355, RSMo 1969; and, second, that he is entitled to release under § 221.180(4), RSMo 1969, which provides that a prisoner shall be discharged after serving three-fourths of his sentence if he has been required to work and he has behaved in an orderly and peaceable manner.

It is agreed: (1) that the sentence was for 300 days; (2) that on his release on August 26, 1976, Relator had been confined for 249 days (238 of which were accumulated prior to the plea and sentence); and (3) that Relator was entitled to discharge, after having served 225 days, if either “three-fourths” statute was available to him.

An initial question involves § 546.-615, RSMo Supp.1975, which, in part, provides that: “A person convicted of a felony in this state shall receive as credit toward service of the sentence imposed all time spent by him in prison or jail awaiting trial and pending transfer to the division of corrections.” Any doubt such credit applies to a jail sentence has been removed in Spencer v. Basinger, Sheriff of Cole County, Missouri, 562 S.W.2d 350 (Mo. banc 1978) (handed down with this case) wherein this court said that: “The issue concerning a felon’s entitlement to jail time accumulated before judgment, when sentenced to confinement other than in custody of the division of corrections, was answered in In Re Turley, 496 S.W.2d 865 (Mo.App.1973). There the court of appeals held that a convicted felon sentenced to a term in the St. Louis City Workhouse must be given credit against such sentence for time in City Jail prior to trial. The ruling of the court of appeals and its interpretation of § 546.615 [footnote quoting statute omitted] is approved and given application here. In apparent disregard of the holding in Turley, respondent contends the statutory clause ‘both awaiting trial and pending transfer to the division of corrections’ (emphasis ours) in subsection (1) implies that jail time credit is mandatory only in cases ‘where defendant is sentenced to a term in an institution under the control of the division of corrections’ and when time is ‘spent by him in prison or jail both awaiting trial and pending transfer.’ Respondent insists if the legislature had intended otherwise it would have employed the disjunctive ‘or’ instead of the conjunctive ‘and’. Similar arguments were rejected by the court in Tur-ley.” Further reasons given by this court for so holding need not be repeated here.

Section 216.355, RSMo 1969, provides, in part, that: “Any person who is now or may hereafter be confined in any institution within the division and who shall serve three-fourths of the time for which he was sentenced in an orderly and peaceable manner . . . shall be discharged in the same manner as if he had served the full time for which sentenced.” Respondent points out that the statute considers only that time served in an institution “within the division” and that the St. Louis Medium Security Institution does not meet that qualification as it is not under the control of the Department of Corrections for Missouri.

Relator suggests a contrary interpretation of the statute by contending that it is concerned with three-fourths time being given those who serve in an “orderly and peaceable manner” much more than the place of confinement. Further argument is made that: “Equal protection of the law also mandates that felons confined in the St. Louis Medium Security Institution be entitled to the same rights and benefits which accrue to a similarly situated defendant serving a sentence on the same charge in the Missouri Department of Corrections * * *. Placing additional requirements on a defendant sentenced to another institution for the same crime would be a denial of equal protection of the law since a defendant has no control over the sentence imposed by the Court.”

We agree with the latter argument and find no reason to resolve whether or not Relator’s interpretation of § 216.355, supra, unduly strains a literal reading thereof.

Crimes comparable to that for which Relator was sentenced are often referred to as “graduated” felonies, i. e., the punishment may include confinement in either a county (St. Louis) jail or a designated institution of the state. Had Relator been confined in a state institution the three-fourths rule clearly would have applied. Furthermore, the record presented reflects that the Department of Corrections would have applied the three-fourths rule to all days served in jail after initial arrest and confinement. Thus, there seems to be no logical reason or rational basis for distinguishing between a “day” served in jail prior to sentence to a state institution and a “day” served in jail prior to sentence to the St. Louis Medium Security Institution by reason of the same crime. No compelling state reason to hold otherwise has been suggested. By so concluding, we do agree in effect with Relator’s interpretation of § 216.355 insofar as felony convictions are concerned.

We do note, but need not discuss in detail, McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973), wherein the United States Supreme Court upheld a statute of New York distinguishing between good-time credit for jail time and that in prison reference eligibility for parole. An equal protection claim was rejected for the reason prison confinement, in contrast to that in jail, afforded officials an adequate opportunity to evaluate a prisoner’s conduct and potential as a parolee. In the instant case, encouragement of “good conduct” is the objective and there is no legitimate reason for rewarding only a portion of those felons who comply. Fairness alone demands as much.

Relator’s second point reference his alleged right to three-fourths time under § 221.180(4), RSMo 1969, because he worked on the “scrub-gang” need not be developed by reason of his obtaining the identical relief by our ruling under point one. See In Re Turley, 496 S.W.2d 865 (Mo.App.1973).

Relator should have been and hereby is credited with having served more than 225 days, which Respondent agrees were served in an orderly and peaceable manner.

Having served his sentence as provided by law, Relator is ordered discharged and the obligations of his bond are released and for naught held.

BARDGETT, HENLEY, FINCH, DON-NELLY, and SEILER, JJ., and FLANI-GAN, Special Justice, concur.

RENDLEN, J., not sitting.

      . Precedent abounds, however, for a liberal construction of “good time” statutes. “Where the statute is capable of two constructions, that construction should be adopted which would entitle the prisoner to his discharge at the earliest time.” 72 C.J.S. Prisoners § 21, at 887 (1951). In Anthony v. Kaiser, 350 Mo. 748, 169 S.W.2d 47 (banc 1943), this court stated that: “Penal and criminal statutes . . are generally ‘construed strictly as to those portions which are against defendants, but liberally construed in those which are in their favor — that is, for their ease and exemption when doubts arise concerning their interpretation, such doubts are to weigh only in favor of the accused.’ ” Citing State v. Taylor, 345 Mo. 325, 133 S.W.2d 336, 341 (1939).


text:
    In the Matter of the ADOPTION OF R. A. B., III, et al., J. A. H. and S. J. H., Petitioners-Respondents, v. R. A. B., Jr., Appellant.
    No. 59990.
    Supreme Court of Missouri, En Banc.
    March 13, 1978.

      Karl W. Blanchard, Jr., Blanchard, Van-Fleet, Martin, Robertson & Dermott, Joplin, for appellant.
    Dean S. Johnston, Joplin, for petitioners-respondents.
   RENDLEN, Judge.

Transferred from the Springfield district of the Missouri Court of Appeals after opinion, this case is decided as though on original appeal. Mo.Const., Art. V, § 10. The natural father, R. A. B., Jr., appeals from the adoption decree terminating the parental rights to his three children, ages nine, eight and six at the time of trial, and awarding them by adoption to his divorced wife (the natural mother) and her present husband, petitioners in this action. We reverse.

Consent of a natural parent is required for adoption of children under twenty-one years of age, § 453.030(3), RSMo 1969, except for special cases enumerated by statute, § 453.040. One such exception applicable here is found in § 453.040(4):

“The consent of the adoption of a child is not required of . . . (4) A parent who has for a period of at least one year immediately prior to the filing of the petition for adoption, either willfully abandoned the child or willfully neglected to provide him with proper care and maintenance. . . . ”

In their joint petition filed July 11, 1974, the natural mother and stepfather alleged the natural father willfully neglected to provide the minor children with proper care and maintenance for a period of at least one year immediately prior to the filing of the petition. No claim is made that he abandoned the children.

Adoption proceedings in Missouri are governed by statute, In the Matter of D. G. K. v. D. G. K., 545 S.W.2d 81, 82 (Mo.App.1976), and while it is often said that the welfare of the child is the paramount consideration in an adoption proceeding, questions regarding the fitness of the petitioners and the child’s welfare are not reached if willful abandonment (here neglect) is not proved, In re E. G. N., 517 S.W.2d 709, 712 (Mo.App.1974), because consent or the proper waiver of consent under § 453.040 is jurisdictional, In re D., 408 S.W.2d 361, 365 (Mo.App.1966). “Willful neglect” as used in the statute has been construed to mean neglect that is “ . intentional, deliberate, and without just cause or excuse, evincing a settled purpose to forego . . . parental duties over the period of time which the statute prescribes. . . In re E. C. N., supra at 712. The conduct of the parent constituting willful neglect or abandonment must have occurred during the year immediately preceding the filing of the adoption petition, In Matter of D. G. K. v. D. G. K., supra at 81-82, and as stated in In re Adoption of Rule, 435 S.W.2d 35, 40 (Mo.App.1968): “. . . the conduct of the parent must evidence an intent or mental attitude to forsake the status of a parent— at least for the period of time declared in the statute. . . ” However, abandonment and neglect are matters of intent and “evidence of a parent’s conduct, either before or after the statutory period, may be considered to determine the purpose and intent of the parent. . . .” In re Adoption of K., 417 S.W.2d 702, 709 (Mo.App.1967).

In this case, the natural father (hereinafter R.) and the natural mother (hereinafter S.) married in 1964 and the following year, while living in Pittsburgh, Pennsylvania had their first child. The second child was born in 1966 and the third in 1968. The family lived in Pittsburgh until March, 1971, when the parents separated. During that time they had serious financial difficulties and R. went to Ohio for about six months but returned to Pittsburgh where S. had continued to live in the family home with the children. During the summer of 1971, R. sold two small businesses which he had operated during his marriage and realized about $3,500 from the proceeds of that sale. He testified this money was given to S., but she maintained she had received nothing and the trial court in its findings accepted her version of those facts. After the businesses were sold, R. did not work for about one year and on November 22, 1972, a divorce was granted in Pennsylvania but the decree failed to mention the children, their custody or support. Between the time of separation in March, 1971, and the divorce in November of 1972, R. visited the children whenever he was in town though “it was not set up on a regular basis.” While in Pittsburgh, S. continued to live in and occupy the furnished home which the couple had purchased and during that difficult financial period she received welfare payments in the amount of $235 a month. The monthly mortgage payments on the Pittsburgh home were $151.00 and S. “occasionally made those payments.” On the other hand, the father of R. made some of the payments but according to S., “quite a few months they were not paid.”

In May of 1973, R. married B., a registered nurse, and with his new wife moved to New York where he entered a school described as “a culinary institute.” He attended classes regularly at the “institute” through December, 1974. During the latter part of the summer of 1973, S. visited in Missouri and apparently it was then she met her future husband (hereinafter J.). While she was there, the children spent two weeks with their father and his new wife at their home in Red Hook, New York. It was admitted that the children “seemed to enjoy the visit” and there is no dispute that while in New York the children’s father provided their support and that this two week visit occurred within the statutory year referred to in § 453.040(4). The children’s mother also admitted that during the period of separation, R. constantly expressed an interest in the children and would from time to time provide them with gifts and clothing. Further, S. testified that she was sure appellant loved the children. The following testimony elicited from the natural mother is pertinent to these matters:

“Q. Is it your opinion then that [R] loves these children.
A. Yes, I’m sure he does.
Q. Cares very much for them.
A. I’m sure he does.”

Thereafter, testimony relative to R’s failure to support the children was developed.

“Q. Have you ever asked [R] for any support?
A. No, I haven’t.
Q. You’ve never made any demand on him for the children.
A. I have told him we didn’t have money, but I knew he didn’t have any.
Q. How did you know he didn’t have any?
A. He wasn’t working.
Q. Did you know that during the last year and one-half he has been going to school?
A. Yes, he told me he was.
Q. In fact you acknowledged the fact in the August 14, 1973, letter.
A. Yes.
Q. In fact, going to school in New York at the time the children stayed with him; is that right?
A. Yes.
Q. Has your [present] husband [J] ever made a demand for support money for the children from [R]?
A. No, he hasn’t.
Q. So, in fact until you moved to Missouri, the relationship simply was that [R] did not have much money and you were on welfare and you were both getting along the best you could and never any order or demand for support.
A. Yes.
⅝: ⅜ * * ⅜ *
Q. Mrs. [S] when you left Pittsburgh, did you, in fact, leave a large number of bills behind?
A. Yes, there were bills.
Q. Is it not true that [R] took care of these bills for you?
A. I have no idea.
Q. You just left the bills?
A. Yes.”

In this connection R. testified, and it is not disputed that he did in fact take care of the bills which approximated $2,000 after she left Pennsylvania for Missouri in October, 1973, and that this occurred well within the one year statutory period. Appellant testified to these matters as follows:

“Q. [R], when [S] moved from Pittsburgh to Missouri, did she leave a substantial number of bills in the Pittsburgh area?
A. Yes.
Q. How were those bills disposed of?
A. Me.
Q. Do you have any idea—
A. There are a few bills still in debate with major department stores.
Q. Do you have an estimate as to what the total amount of bills were?
A. That I paid off? I would say, approximately $2,000. I used most of my entire savings.”

It is also undisputed that S. took an automobile from Pennsylvania to Missouri which previously had been subject to a mortgage indebtedness that had been paid by her former husband. She also admitted that R. and his present wife contributed two or three chairs to her house on Francis Street in Pittsburgh and which she took for her own use in Missouri.

In August of 1973, shortly after the children visited with their father in New York and just before she moved to Missouri with the children, S. wrote a cordial letter (Respondent’s Exhibit No. 1) to her former husband and his new wife stating, “I am so glad to hear how well you’re doing in school. You should be very proud of yourself. I know that things are rough, but everything is going to be fine Good things, or rather, beautiful things happened for me this summer and for my future.” The latter statement is apparently a reference to the fact she had met her new husband that summer, whom she married in November one month after moving to Missouri. On that subject she noted in the letter, “The kids have a good outlook on you [sic] being married and they don’t mind the idea that I may get married someday. Thank you for that. I don’t want to live by myself forever and I wouldn’t want to hurt them. But, now it seems that they understand and I feel so much better.” (Emphasis supplied.) She acknowledged that the time their son had spent with his father in Red Hook, “was good for him.” The letter closed with the statement that she was happy school was going well for R. and that he had been able to start a good life with his new wife, congratulating him on having attained the status as an honor student. She also mentioned in the letter to her former husband that he had been correct in his appraisal of a problem concerning the legs and need for special shoes for one of the children. Though we are not told the details, it is apparent from respondent’s letter that appellant demonstrated a real concern for the child’s welfare. In her testimony, respondent admitted that during the two year period of separation before the divorce, her then husband (appellant) constantly expressed an interest in the children, that he would bring them gifts and clothing and would attempt to see them whenever he was in town.

In October of 1973, S. moved to Missouri and one month later married J. As noted above, in late July or August (eleven months prior to the filing of the petition) the children spent two weeks with their father, and in December of 1973 (seven months before the petition was filed), R. and his wife drove from Red Hook, New York to Newton County, Missouri and after some difficulty located his former wife’s residence. He brought gifts of clothing and other presents and was allowed to visit in respondent’s trailer home on two occasions. In March, 1974, four months prior to the filing of the adoption petition, appellant again came from New York to Missouri where he was allowed to visit the children on only one occasion and not outside the trailer home. Apparently an altercation developed between the parties including J. (the new husband) and appellant during which appellant complained that he wasn’t allowed reasonable visitation with the children and stated he intended to take custody of them.

In July of that year the petition, for adoption was filed and during the following month appellant again came to Missouri and telephoned his former wife asking to visit the children. He was told he could visit the children at her mobile home but not elsewhere. She was asked: “Q. And we [sic] were not able to work out a satisfactory agreement, so he didn’t see the children in August; is that right? A. Yes.” Thus, during the period of one year immediately prior to the filing of the petition for adoption, the children had been with their father for a two week visit in his home in New York, he had been in correspondence with his former wife and had talked to her by telephone, he had made two trips at his own expense to Missouri bringing gifts and clothing on at least one of those occasions and had been permitted to visit the children only for three limited periods in the trailer home of the respondent and her new husband. When he complained of this, an adoption petition was filed; nevertheless he came to Missouri a third time in August but was effectively denied visitation privileges. Appellant filed answer and counterclaimed praying for an order granting him legal custody of the children or in the alternative that an order be entered granting him rights of reasonable visitation.

Adoption proceedings are governed by statute, Chapter 453, and this chapter is considered a code unto itself. In re Smith, 314 S.W.2d 464 (Mo.App.1958). It is well settled that as a matter of simple justice the adoption statutes are to be strictly construed in favor of the natural parents, In re Slaughter, 290 S.W.2d 408 (Mo.App.1956). These principles were discussed in In re Perkins, 234 Mo.App. 716, 117 S.W.2d 686, 691 (1938), as follows:

“It is of course true that the statute is to be liberally construed with a view to promoting the best interests of the child, but such liberal construction is obviously not to be extended to the question of when the natural parents may be divested of their rights to the end that all legal relationship between them and their child shall cease and determine. . . . [I]t must always be borne in mind that the right of natural parents to the custody and possession of their children are among the highest of natural rights

Section 14074, RSMo 1929, the predecessor to present § 453.040(4) was modified in 1947 to include the adverb “willfully” before the verbs “abandoned” and “neglected.” The prior statute, though not containing the term “willfully” before the verb “neglected” was construed to mean essentially the same as the present section. See In re Perkins, supra at 686, in which it was held, “the parent’s consent to the adoption is not to be dispensed with upon the ground of his neglect of his child unless it is shown that such neglect was intentional, deliberate, and without just cause or excuse, evincing a settled purpose to forego his parental duties over the period of time which the statute prescribes.”

The evidence in the case at bar was insufficient to support a finding of willful neglect during the statutory year. In so holding, we are mindful that our review of this non-jury case under Rule 73.01 is confined to the parameters described in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), however we have a firm belief that the decree of the trial court is wrong. The manifestation of appellant’s interest in his children recited above and his efforts to maintain his relationship with them during the statutory year prior to the filing of the adoption petition do not evince a settled purpose to forego his parental rights and duties. We are also aware that appellant apparently paid little or no money to the natural mother from the time of the separation and the divorce in 1972 until the adoption petition was filed in 1974. However many things were done and efforts made, including the payment of some $2,000 for bills the natural mother incurred in Pennsylvania, gifts and clothing for the children as well as the time spent and support provided for the children in New York, two trips to Missouri to visit the children before these proceedings began, and one shortly thereafter. These and other demonstrations of paternal interest occurring within the statutory year, are sufficient to warrant denial of adoption without consent of the natural father. We do not condone his failure to pay monies for support within the limits of his abilities; on the other hand, nothing appears to indicate the mother has attempted through the Pennsylvania courts or in Missouri under the Uniform Support of Dependents Act or other appropriate action to collect support monies from him. Instead when appellant asserted his rights to visitation, respondent and her new husband petitioned for adoption.

Finally, though the Pennsylvania divorce decree is silent as to custody of the children and no provisions are made for their support, such does not relieve the natural father of his primary and continuing duty to support the children. His is a continuing duty to support and on the other hand the mother shares that duty and as custodian has the responsibility of working toward a reasonable arrangement for the father’s visitation with the children.

The out-of-custody father is entitled to assurances that his letters, presents and reasonable attempts to communicate and visit with his children will be honored without disparagement by the mother or her new husband. The decree of the trial court awarding adoption is reversed.

All concur.


author: NORWIN D. HOUSER, Special Judge. BARDGETT, Judge,

text:
    Donald EDMONSOND et al., Appellants, v. LAKESIDE HOSPITAL ASSOCIATION et al., Respondents.
    No. 60013.
    Supreme Court of Missouri, En Banc.
    March 13, 1978.

      Robert VanHorn, Kansas City, for appellants.
    Darrell L. Havener, Thomas N. Sterchi, William T. Smith, III, Kansas City, for respondents.
   NORWIN D. HOUSER, Special Judge.

Donald and Steven Edmonsond, aged 17 and 14 years, respectively, through their father and next friend, William Edmon-sond, brought this action against a hospital association, a clinic, three osteopathic physicians and surgeons and the executrix of a fourth osteopathic physician and surgeon, for $900,000 damages for the death of their mother, Donna P. Edmonsond. Mrs. Ed-monsond was admitted to and operated upon in the defendant hospital. She died the same day she was dismissed from the hospital. The petition alleged that her death was caused or contributed to by defendants’ negligent abandonment of care and early dismissal from the hospital without advising her or her husband of the risks involved and the care she would require upon dismissal.

Defendants filed motions to dismiss or alternatively to render summary judgment for defendants on the basis that (1) the depositions, pleadings and records demonstrated no genuine issue of material fact, and that (2) the minor children of deceased were improper parties plaintiff in that they had “brought an action which no longer vested in them under R.S.Mo. 537.080, and further that any cause of action for wrongful death which might have been brought by any other person whomsoever is now barred by the two-year limitation of actions contained in R.S.Mo. 537.100; therefore, plaintiffs’ Petition fails to state a claim upon which relief can be granted.” These motions were overruled by Division 4 of the circuit court. At a later term of court, on motion to reconsider, Division 9, presided over by a different judge, sustained these motions and entered judgment for defendants without conducting a hearing. Plaintiffs appeal, claiming denial of due process of law; asserting that Division 9 illegally sat as an appellate judge in reversing the decision of another coequal judge of the same circuit; erred in setting aside the order previously made in Division 4, and erred in not calling for oral arguments and giving plaintiffs an opportunity to be heard before entering summary judgment.

The judgment did not state the basis upon which the court acted, but under the undisputed facts relief cannot be granted these plaintiffs on this petition. Regardless of the charges of procedural error and denial of due process, upon which it is not necessary to pass, the circuit court acted properly in entering summary judgment for defendants and dismissing the petition for the reason that at the time these minor children filed suit they were not the proper parties to maintain an action for the wrongful death of Donna P. Edmonsond.

Donna P. Edmonsond died December 13, 1973. She was survived by her husband, two minor children, and her father and mother, all of whom are still living. Under § 537.080, RSMo 1969, as last interpreted in State ex rel. Kansas City Stock Yards v. Clark, 536 S.W.2d 142 (Mo. banc 1976), the claim for Donna’s wrongful death accrued on the date of her death, and vested first in the spouse and minor children who, in case (as here) deceased left surviving a father and mother, were obliged to exercise their preferred right by filing suit within one year from the date of death. The minor children did not do so. They filed this action March 13, 1975, fifteen months to the day from the date of death. Having failed to appropriate their cause of action before the expiration of one year from December 13, 1973 the minor children were barred from asserting a cause of action for their mother’s wrongful death because they failed to timely perfect an essential element of their claim for relief. On December 13, 1974 the claim for wrongful death of Donna passed to and vested in Donna’s parents, and when this action was filed on March 13, 1975 plaintiffs were not the proper parties to maintain the action.

In an effort to save their claim against one of the defendants (Dr. M) plaintiffs contend that as to him the one-year limitation period was tolled by virtue of the following record facts: During the year immediately following Donna’s death Dr. M resided on Reinhardt Drive in Shawnee Mission, Kansas, where he spent between 80 and 90 hours a week. He maintained an office at 8900 State Line Road in Leawood, Kansas, across State Line Road from the Ward Parkway Shopping Center, at which office he examined patients, held consultations and rendered treatment both before and after hospitalization for surgery, four days each week, amounting to 8-10 hours per week. These office examinations constituted approximately 10% of his total practice. He performed his medical specialty of surgery at hospitals in Missouri, saw hospital patients presurgically and post-surgically in Missouri hospitals, examined and treated patients in the emergency rooms in hospitals in Missouri, was acting Chairman of the Department of Surgery at the Kansas City College of Osteopathic Medicine and Health Sciences in Missouri, and attended hospital staff and committee meetings in Missouri hospitals. The Missouri involvement approximated 90% of his total practice.

Plaintiffs contend that the foregoing facts bring the case within the saving grace of § 537.100, RSMo 1969, which provides that “ * * * if any defendant, whether a resident or nonresident of the state at the time any such cause of action [for wrongful death under § 537.080] accrues, shall then or thereafter be absent or depart from the state, so that personal service cannot be had upon such defendant in the state in any such action heretofore or hereafter accruing, the time during which such defendant is so absent from the state shall not be deemed or taken as any part of the time limited for the commencement of such action against him; * * ⅜ .” Plaintiffs reason that Dr. M was unavailable for service as required by statute; that since personal service could not be had on him in Missouri, as required by § 537.100, RSMo 1969, at the times he was in Kansas, that time is not deemed part of the time limited for the commencement of the action; that during the year following Donna’s death Dr. M was living and working in Kansas a majority of the time; that he spent a total of about 100 hours a week in Kansas, or 5200 hours a year, which figures 216 days of the first year after this action accrued that Dr. M was absent from Missouri “and therefore unavailable for service.” Presumably, plaintiffs would have the court add 216 days to the one-year limitation provided by § 537.080, on the theory that the statute was thereby tolled beyond March 13, 1975, on which date they filed this action. In the first place, it is not a question of tolling the statute. It is a question of proper parties plaintiff.

There is no precedent for the proposed computation and we reject the proposal not only as contrary to law but also as impractical and unworkable. “Absent from the state” as used in § 537.100, supra, does not contemplate temporary absences, see Spiegel, Inc. v. Luster, 31 Tenn.App. 342, 215 S.W.2d 16 (1948), or situations such as this, in which the defendant is in the state part of each day and out of the state part of each day. Furthermore, the absence referred to was not an absence which made it impossible to obtain personal service upon the defendant in this state. § 537.100, supra; State ex rel. Shipman v. Allen, 124 Mo.App. 465, 103 S.W. 1090[7] (1907); 54 C.J.S. Limitations of Actions § 212e(1). On plaintiffs’ own figures, Dr. M was in Missouri 68 hours each week during the year following December 13, 1973, and there is nothing to show why Dr. M was not available for personal service in Missouri during the 3536 hours he was in Missouri that year.

Judgment affirmed.

MORGAN, C. J., and HENLEY, FINCH and RENDLEN, JJ., concur.

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

SEILER, J., dissents for reasons stated in dissent of BARDGETT, J., in State ex rel. Kansas City Stock Yards v. Clark, 536 S.W.2d 142, 149 (Mo. banc 1976).

DONNELLY, J., not sitting.

BARDGETT, Judge,

dissenting.

I respectfully dissent. This is another case brought by minor children for the death of a parent — mother—where access to the courts is again denied because the children did not sue within the first year of their mother’s death even though the general statute of limitations on wrongful death actions is two years. This case is decided here by following the majority opinion in State ex rel. Kansas City Stock Yards v. Clark, 536 S.W.2d 142 (Mo. banc 1976).

I will not fully restate my views on the matter. See my dissenting opinions in State ex rel. Kansas City Stock Yards, supra, at 149, and Selsor v. Zenith Radio Corp., 536 S.W.2d 157 (Mo. banc 1976); and concurring opinions in Montemayor v. Harvey, 490 S.W.2d 61 (Mo.1973), and Almenante v. Carney, 490 S.W.2d 59 (Mo.1973).

In the instant case the deceased died December 13, 1973. Suit was filed on behalf of her two minor children on March 13, 1975, some fifteen months later. On July 28, 1976, the first motion to dismiss or for summary judgment on the ground that the deceased was survived by her mother was filed. This was well after the two-year statute of limitations had expired but as of the end of the two-year-limitations period there was no suit filed or pending by the mother of the deceased. The effect of waiting until after the two-year period expired before moving to dismiss because the deceased was survived by her mother is to relieve the defendants of all liability for the death of Mrs. Edmonsond. If the minor children’s suit is permitted to proceed, having been filed within the two-year period, and there being no suit by the surviving mother on file, the defendants would not be subjected to any more liability than if the mother had not survived the deceased, and therefore the children, would have had two years to sue. See Almcrantz at 61, and Montemayor, supra. I would hold that the defendants’ failure to bring to the court’s attention the fact that the deceased left a surviving mother within the two years following the death and seek dismissal on that ground constituted a waiver of that ground.

I believe this course is wholly justified by the mandate of sec. 1.010, RSMo 1969, which in pertinent part provides: “but no act of the general assembly or law of this state shall be held to be invalid, or limited in its scope or effect by the courts of this state, for the reason that it is in derogation of, or in conflict with, the common law, or with such statutes or acts of parliament; but all acts of the general assembly, or laws, shall be liberally construed, so as to effectuate the true intent and meaning thereof.”

Certainly the primary intent, meaning and purpose of our wrongful death act was and is to provide a method to compensate children for the loss of their mother or father by death through another’s negligence. Sec. 1.010 tells courts to construe acts liberally so as to effect their true intent and meaning and to disregard any aspect of the common law which, if considered, might limit the scope and effect of the statute.

This is at least the third case (known to us) in a relatively short time where widows or minor children have been denied the benefit of our wrongful death statute simply because the deceased was survived by a parent even though the parent made no claim. I do not suggest that the principal opinion and the cases it relies upon present an unreasonable view, but I do contend that the view taken in those cases does not comport with the legislative policy set forth in sec. 1.010 because Almcrantz and Montema-yor show that the true intent and purpose of the wrongful death statute can be satisfied by construing that statute liberally as directed by sec. 1.010.

I dissent.


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri ex rel. Phyllis RESER, Director of the Missouri Division of Family Services, Plaintiff-Relator, v. Fred RUSH, Circuit Judge, 11th Judicial Circuit, State of Missouri, Respondent.
    No. 60352.
    Supreme Court of Missouri, En Banc.
    March 13, 1978.

      Richard Huber, Columbia, Edwin H. Stein-mann, Div. of Family Services, Jefferson City, John D. Ashcroft, Atty. Gen., Louren R. Wood, Asst. Atty. Gen., Jefferson City, for plaintiff-relator.
    Robert V. Niedner, St. Charles, for respondent.
   NORWIN D. HOUSER, Special Judge.

This is an original proceeding in mandamus. On July 29, 1977 Linda Cunningham applied to the Missouri Division of Family Services for benefits under § 208.040, RSMo 1969, as amended by Laws 1977, p. -, H.B. No. 601, § 1, effective July 1, 1977, relating to aid to families with dependent children. She had previously been granted rights to support, to be paid by Donald Cunningham, by virtue of an order entered in the decree divorcing these parties. Subsection 2(2) of § 208.040 provides that in order to be eligible for benefits each applicant shall assign to the division in behalf of the state any rights to support from any other person such applicant may have “which have accrued at the time such assignment is executed.” On the same day she applied for benefits Linda Cunningham assigned to the division “any and all accrued (past), present, or future rights to support” to which she was entitled. On August 18,1977, pursuant to subsection 5 of § 208.040, the division notified the court of the assignment. Subsection 5 provides that “Upon such notice the court shall order all support payments to be made to the clerk of the court as trustee for the division as assignee of the support rights * * * Honorable Fred Rush, Judge of the Eleventh Judicial Circuit, failed and refused to make this order, whereupon the director of the division of family services filed a petition in mandamus in this Court to require respondent judge to order the support payments in question to be made to the clerk of the court pursuant to provisions of said subsection 5, claiming that the duty prescribed is purely ministerial and not discretionary. Our alternative writ issued. Respondent circuit judge filed a return challenging the right of Linda Cunningham to assign her rights to support granted by court order; alleging that the purported assignment is overly broad in that it includes not only accrued support payments but also future rights to support, and continues until the claim of the division for repayment of unreimbursed assistance payments is satisfied, whereas paragraph (2) of subsection 2, supra, limits the assignment to rights which have “accrued at the time such assignment is executed”; denying that subsection 5 directs him to order future payments to be made to the clerk; denying that the duty thereby prescribed is purely ministerial and alleging that the duty is discretionary. Respondent further alleged that § 208.040 is unconstitutional in that it deprives the children of Donald and Linda Cunningham of property without due process of law in violation of Section 1 of the Fourteenth Amendment to the Constitution of the United States and Section 10 of Article I of the constitution of Missouri, and that the section violates public policy.

Relator filed a 17-page reply. No evidence was heard. No depositions were filed. No facts were stipulated or submitted, other than the few admissions of fact contained in the pleadings. Relator’s reply was a combination reply and brief in support. Respondent filed a brief on December 9, 1977. On December 29, 1977 counsel for the Office of Support Enforcement of the Division of Family Services and an Assistant Attorney General wrote to counsel for respondent, and sent a copy of the letter to the Clerk of this Court, advising that Linda Cunningham’s case has been closed; that she is no longer a recipient of AFDC benefits, “having become employed and ineligible for AFDC because of exces-' sive income,” so that the division is “no longer entitled to current support payments due Linda Cunningham from Donald Cunningham by virtue of the change in AFDC status.” Counsel asserted, however, that the case is not moot and the issue of the validity of the assignment remains viable, because (1) certain monies in the hands of the circuit clerk remain to be disposed of— monies claimed by relator, but in respondent’s view due to be paid to Linda Cunningham, the same being support payments made by Donald Cunningham to the clerk under the assignment; (2) there are in the Eleventh Judicial Circuit numerous similar situations presenting the same legal issue; (3) there are presently numerous parents paying monies to the Circuit Clerk of St. Charles County; (4) the circuit clerk has received several thousand dollars in assigned support monies, and additional monies will come in, and (5) any other case could be closed for the same reason Linda Cunningham’s case was closed, before the issues were decided. Counsel for respondent joins counsel for relator in requesting a decision notwithstanding the case may be declared moot.

Whether the duty of the court under § 208.040, subsection 5 is mandatory or merely discretionary is a question which has risen throughout the state in the administration of this law, and is likely to arise again. The question involves a determination of public rights or interests under conditions which may be repeated at any time. The problem presented is one which is “capable of repetition, yet evading review,” and needs to be resolved and put to rest. Southern Pacific Terminal Co. v. I.C.C., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). Accordingly, notwithstanding the suggestion of mootness, we will decide the case on the merits, being of opinion that the questions involved are matters of public rights or interests under conditions which may be repeated any time. In re Marshall, 478 S.W.2d 1, 5[6] (Mo.banc 1972); State ex rel. Laclede Gas Co. v. P.S.C., 535 S.W.2d 561, 565[1] (Mo.App.1976).

On the principal question before us we rule that the duty of the court in this situation is mandatory and not permissive, ministerial and not discretionary, under the plain language of the subsection, which directs that “Upon such notice the court shall order all support payments to be made to the clerk of the court as trustee for the division as assignee of the support rights * * *. Notification to the court by the division of the assignment of support rights shall in and of itself authorize the court to make the clerk such trustee, notwithstanding any existing court order, statute or other law to the contrary, and the court need not hold a hearing in the matter.” (Our emphasis.)

Attending to respondent’s other contentions, it is first urged that Linda Cunningham had no legal right to assign her rights to support granted by the divorce decree. Respondent cites authority for the proposition that agreements between divorced spouses releasing the ex-husband from his obligation to pay his former wife child support, so as to deprive minor children of support money decreed by the court, are void. These cases are not authority for the proposition advanced. Linda Cunningham not only had the right to assign her rights to support but if she desired to become eligible for benefits under § 208.040 it was her statutory duty to do so.

Respondent contends that the assignment is overly broad in that it includes “not only accrued support payments, but also future rights to support and continues until the claim of the Division for repayment of unreimbursed assistance payments is satisfied, whereas Sec. 208.040 subd. 2(2) limits the assignment to rights which ‘have accrued at the time such assignment is executed.’ ” The use of the term “future rights to support” in the division’s assignment form is unfortunate and inappropriate, and should be discontinued. In this context future rights, technically speaking, are rights which have not yet vested. The subsection requiring assignment of rights to support plainly contemplates vested, existing rights in esse, and not rights which have not as yet come into being.

Respondent argues that subsection 5 does not direct him to order future payments to be made to the clerk; that in passing H.B. 601 the General Assembly intended that only support payments which had become delinquent be assigned to the state; that it was not the legislative intent that current and future payments of support (not yet delinquent) be assigned to the state. In making this contention respondent confuses rights which have accrued with payments which have accrued. Paragraph (2) of subsection 2 of § 208.040 refers and relates to any rights to support which have accrued at the time the assignment is executed. It says nothing about payments which have accrued or payments which are delinquent. A vested right to support may pertain and relate to payments past due and delinquent, or a current payment, or payments which will come due in the future. The assignment contemplated by the subsection is designed to transfer in behalf of the state any and all existing rights to support then possessed by the applicant, and this includes all accrued rights to support, i.e., vested, existing rights to receive support payments which are past due, currently due, or which will become due in the future.

Respondent expresses apprehension on account of the possibility that children might be deprived of their right to support without due process of law between the time of the assignment and the time state aid would be forthcoming, or during periods in which insufficient funds to pay state aid have not been appropriated. The first fear is met by the terms of the assignment, which is not effective until the application is approved. The possibility of failure to appropriate sufficient funds is conjectural and speculative, but in any event the possibility that it might happen provides respondent with no excuse for failure to perform his statutory duty.

Respondent proposes that subsection 5 of § 208.040 is original in Missouri, and is not necessary or required in order to comply with U.S. Code Title 42 (providing federal funding of state aid to dependent children programs); that it usurps the function of the courts by transferring the traditional function of the courts to the division of family services, and strips the courts of their functions under Chapter 452, RSMo §§ 130-150 (providing means for enforcement of orders for maintenance or support). This is not true. On the contrary, instead of subtracting existing enforcement procedures, the General Assembly by H.B. 601 has added new means of enforcement for persons in the situation of Linda Cunningham. § 208.040, subsection 5; and § 207.-025, RSMo 1969.

There is no merit in respondent’s charge that he has no authority to order support payments made to anyone other than the person entitled to receive the payments. Section 452.345 subd. 1, RSMo 1969 authorizes the court at any time to order that support payments “be made to the circuit clerk as trustee for remittance to the person entitled to receive the payments.” When the assignment is made the director of the division, on behalf of the state, becomes “the person entitled to receive the payments.” The statute not only authorizes but in mandatory language directs that the court order payments made to the clerk as trustee, etc.

Purporting to speak for the children of Donald and Linda Cunningham, respondent poses several questions concerning the operation of this law and attempts to demonstrate that their constitutional rights to due process of law have been violated. We will not entertain the constitutional questions raised by respondent on behalf of the children of the Cunninghams because, among other reasons, respondent circuit judge has no standing to raise these issues, which are personal to them. “[N]ot just anyone has standing to attack the constitutionality of a statute. Only those adversely affected by the statute in question have the requisite standing.” Ryder v. County of St. Charles, 552 S.W.2d 705, 707[1] (Mo.banc 1977). One of the primary objectives of the standing doctrine, as pointed out in Ryder v. County of St. Charles, is to prevent parties from creating controversies in matters in which they are not involved and which do not directly affect them. A litigant must himself be hurt by the unconstitutional exercise of power before he may be heard to complain. Blue Ridge Bank v. State Banking Board, 509 S.W.2d 763, 766 (Mo.App.1974). Respondent judge is not himself injured, damaged or prejudiced or in any way adversely affected by the enforcement of the statute. There is no conceivable way in which the statute could be applied to his disadvantage. 7 Mo.Dig. Constitutional Law <®=42(1).

Respondent further contends that § 208.-040 violates the public policy of Missouri “in attempting to remove the responsibility for and supervision of payments for support of minor children in dissolution proceedings from the Court to a State agency established for the purpose of distributing public funds to indigent persons.” The responsibility and supervision referred to are not removed from the courts by this legislation, nor is the state agency invested with the responsibility for determining the need for or amount of support payments in a dissolution proceedings. As to supervision: the act requires support payments to be made to the clerk of the court, in whose hands the funds are subject to strict scrutiny and supervision by the court. Section 208.040 does not violate the public policy of Missouri in this field; it declares that policy. “ * * * [W]hen the legislature, acting within its constitutional orbit, has declared the public policy of the state, ‘such declared policy is sacred ground which we may not invade’ * * * State ex inf. Dalton v. Miles Laboratories, 365 Mo. 350, 282 S.W.2d 564, 574[15] (Mo.banc 1955). “In determining the validity of statutes enacted under the police power * * * courts must disregard all matters relating to the wisdom, adequacy, propriety, expediency or policy of the act in question. State v. Day-Brite Lighting, 362 Mo. 299, 240 S.W.2d 886, 893[6, 7] (banc 1951); 16 C.J.S. Constitutional Law § 198, p. 960.” State v. Ewing, 518 S.W.2d 643, 648[7] (Mo.1975).

It is true, as suggested, that subsection 5 of § 208.040 provides that “When the recipient is no longer eligible for aid the assignment shall terminate, * * * except for those unpaid support obligations still owing to the state under the assignment at the time of the discontinuance of aid. Such unpaid obligations shall be collected by the prosecuting attorney up to the amount of unreimbursed aid paid by the division prior to or after execution of the assignment of support rights.” It is also true that the assignment executed by Linda Cunningham provides that upon termination of assistance payments the “assignment shall remain in effect as to the unpaid support obligations owing at the time of the discontinuance of assistance payments until the claim of the Division for repayment of the unreimbursed portion of such assistance payments is satisfied.” On the basis of these provisions both parties would have this Court in this mandamus proceeding determine how much money has been deposited with the clerk by Donald Cunningham, who is entitled thereto, and make orders for the disbursement of the monies. This Court, however, is in no position to make such determinations and render such judgment, for two reasons: First, these issues are wholly outside the issues raised by the petition, return and reply; second, we are in possession of no record facts on these issues. Neither party has demonstrated, by way of admissions, stipulation or testimony, what the support obligations were; what payments have been made, and when; what payments, if any, were due and owing at the time of discontinuance of assistance payments; what portion of the payments has been reimbursed and what remains un-reimbursed, etc. Any judgment we might render based on the sparse facts admitted by the pleadings would be conjectural, speculative and advisory merely, with no foundation in fact except a copy of an attorney’s letter appearing in the file and assertions in the appellate briefs, neither of which constitutes evidence upon which a court may adjudicate, and neither of which is sufficiently specific and complete to form the basis of a judgment.

The funds in question, now in the registry of the divorce court, are subject to the orders of that court. Relator may file a motion to intervene in the divorce action for the purpose of contending for an order of disbursement with respect to all or whatever portion of the funds relator claims the division is entitled under the law. Likewise Linda Cunningham, if so advised, may lay claim to any undistributed funds by filing a motion for disbursement.

The alternative writ is made peremptory.

MORGAN, C. J., and BARDGETT, DON-NELLY, RENDLEN and SEILER, JJ., and ANDREW J. HIGGINS, Special Judge, concur.

HENLEY and FINCH, JJ., not sitting.