author: COOPER, Judge:

text:
    Ray Walker SETTLE, Appellant, v. Roy R. CAMIC, Superintendent of the Boyle County Schools, and Board of Education of Boyle County, Kentucky, Appellees.
    Court of Appeals of Kentucky.
    June 10, 1977.
    Arthur L. Brooks, Brooks, Sullivan & Saunders, Lexington, for appellant.
    F. C. Bryan, Bryan & Fogle, Mount Sterling, William M. Dishman, Jr., Silliman & Dishman, Danville, for appellees.
    Before COOPER, HOWARD and WHITE, JJ.
   COOPER, Judge:

This appeal is from a judgment entered in the Boyle Circuit Court granting a summary judgment to Appellees and dismissing the complaint of the Appellant.

During the school year of 1970-71 the Appellant, Ray Walker Settle, was employed by the Appellee, Board of Education of Boyle County, as Principal of the Parks-ville Elementary School in the Boyle County School System with an annual salary of $9,500. Appellant had taught in the Boyle County School System since the school year of 1966-67 and had a continuing service contract with the said Appellees.

Roy R. Camic was Superintendent and Secretary of the Boyle County School System for the school years 1970-71 through 1973-74, and as Superintendent he was the executive agent for the Board.

In March and April of 1971, the Appellee, Boyle County Board of Education, consolidated the Parksville School with the new Boyle County Elementary School System for the year of 1971-72, which resulted in a reduction of the faculty in Parksville School to four (4) teachers.

Under the rules of the Kentucky Department of Education, an elementary school with four (4) teachers requires the use of a head teacher rather than a principal. The Appellant was aware of the changes to be brought about by the consolidation.

On Friday of the first week in May, 1971, Superintendent Roy R. Camic met with the Appellant, Ray Walker Settle, and offered him the job as head teacher at Parksville Elementary for the coming school year of 1971-72. This offer was first refused, but later accepted by the Appellant and approved by the Board on June 1, 1971. Appellant served in this position for a year and accepted the salary reduced to $9,300 for head teacher.

On May 23, 1972, at the direction of the Kentucky Department of Education, Parks-ville Elementary School was closed and the students moved to Boyle County Elementary School for the 1972-73 school year. Appellant was hired as a classroom teacher in 1972-73 at Boyle County Elementary School at a salary of $7,923. He was re-employed in the same position for the year of 1973-74. His salary for this latter year was $8,364. Appellant contends that his salary for each of these years following the 1970-71 school year was invalid.

A number of questions have been argued by both Appellant and Appellees concerning various phases of this case. We believe, however, that this matter should be decided on the following question:

WERE APPELLEES REQUIRED TO GIVE STATUTORY NOTICE TO APPELLANT FOR A REDUCTION IN DUTIES AND SALARY AFTER AN APPARENT MUTUAL, ORAL AGREEMENT HAD BEEN REACHED BETWEEN THE PARTIES?

In recent years many questions have been presented to the Court of Appeals concerning the rights of boards of education, employers and teachers under the Teachers Retirement and Tenure Act. The Court of Appeals very zealously guards the rights of all parties in these matters and some standard or guideline must be set to prevent further chaotic confusion.

Under KRS 161.740 a teacher employed for the fifth consecutive year in a particular school system becomes entitled to a “continuing service contract” with that system. Moore v. Babb, Ky., 343 S.W.2d 373 (1960). Under KRS 161.720(4) this statutory contract remains in full force and effect until the teacher resigns, retires, reaches age 65, or until terminated for “cause” pursuant to the provisions of KRS 161.790, or suspended under KRS 161.800. The Plaintiff herein had a “continuing service contract” during all material times, and his contract had not been terminated or suspended.

KRS 161.760 contains provisions pertaining to salaries to be paid to public school teachers, and requisites for reducing a teacher’s salary, in the following terms:

(1) Each board of education shall cause notice to be given annually not later than July 1 to each teacher who holds a contract valid for the succeeding school year, stating the best estimate as to the salary to be paid such teacher during such year. Such salary shall not be lower than the salary paid during the preceding school year unless such reduction be a part of a uniform plan affecting the entire district, or unless there is a reduction or elimination of extra service, administrative and/or supervisory duties and responsibilities of the teacher or other certified personnel.
(2) Upon recommendation of the superintendent and approval of the board of education reduction of responsibility for a teacher may be accompanied by a corresponding reduction in salary; provided that written notification setting forth the specific reason or reasons for such reduction shall be furnished the teacher not later than May 15.

In Board of Education of McCreary County v. Stephens, Ky., 449 S.W.2d 421 (1970), the Court of Appeals held that where a board of education did not timely notify a former principal of a proposed reduction in salary in accordance with the statute permitting reduction in salary corresponding to reduction of responsibility, the salary of the former principal, who had attained continuing service contract status, could not be reduced to reflect a change of responsibility in being assigned as a teacher.

In holding for Stephens, the Court of Appeals quoted the portions of KRS 161.760 set out above, and then stated as follows:

Attention is directed to the fact that KRS 161.760(2), already quoted, elaborates on the process of effecting reduction of responsibilities and salary for a teacher and provides that:
“. . . written notification setting forth the reason or reasons for such reduction shall be furnished the teacher not later than May 15.”
Thus, reasons the Appellee, the Board of Education of McCreary County did not timely notify him of a proposed reduction of salary in that it failed to so inform him either before May 15 or July 1. It is our view that the Appellee is correct in this contention, and the failure of the Board of Education of McCreary County to notify Stephens by May 15, as required by KRS 161.760(2), foreclosed the Board’s right to reduce Stephens’ salary for the ensuing school year, even though it had reduced his extra duties as principal.

It is our opinion that the holding in the Stephens case, supra, is dispositive of the issues presented by the case at bar. The contract which the Appellant has with the Appellee is one created by statute, and its terms and conditions are likewise statutorily defined. Gullett v. Sparks, Ky., 444 S.W.2d 901 (1969). It appears from the record that the Appellant was aware, previous to May 15, 1971, that he would be receiving a reduction in duties and salary for the coming school year. The record leaves unclear whether or not be was aware of what his 1972-73 duties and salary would be previous to May 15,1972. In any event, the Appellee in both years failed to notify the Appellant in writing of such reductions, as required by KRS 161.760.

The judgment is reversed for proceedings consistent with this opinion.

All concur.


source: Caselaw Access Project

author: FINCH, Judge. DONNELLY, Judge, BARDGETT, Judge, PER CURIAM.

license: Public Domain

text:
    STATE of Missouri ex rel. PHILIPP TRANSIT LINES, INC., Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri et al., Respondents.
    No. 59730.
    Supreme Court of Missouri, En Banc.
    June 14, 1977.
    Respondents’ Motion for Rehearing Denied July 11, 1977.

      Warren H. Sapp, Kansas City, for appellant.
    Leland B. Curtis, General Counsel, Roger M. Baron, Counsel, Missouri Public Service Commission, Jefferson City, for respondent.
    John T. Martin, Kansas City, amicus curiae, for Kansas City Star.
    Stanley P. Christopher, III, Kansas City, amicus curiae, for Jackson County.
   FINCH, Judge.

This case involves the question of whether the Public Service Commission of Missouri (PSC) may decide a case by a report and order adopted by notational voting or whether the report and order must be acted upon at a public meeting of which notice has been given.

On February 19, 1974, PSC issued an order to show cause why the authority of Philipp Transit Lines, Inc., (Philipp) to provide certain service should not be suspended or revoked and penalties sought because of allegedly illegal hauls. At issue was whether Philipp was authorized to conduct direct motor carrier operations between St. Louis and Kansas City.

Following a formal hearing, a member of the PSC who had conducted the hearing prepared a proposed report and order. That report and order was circulated to other members of the PSC for notation thereon of their approval or disapproval. Four of the commissioners indicated approval of the proposed report and order on the notational voting sheet. The fifth commissioner was marked absent and did not vote. No meeting of the PSC was held to vote on the report and order. Instead, it was considered adopted on the basis of the notational voting. The order was printed and on July 1, 1974, was mailed to all parties of record with an effective date of July 11, 1974.

On petition for review, the circuit court affirmed the order directing Philipp to cease service between St. Louis and Kansas City and the order directing the General Counsel to seek penalties. The order suspending Philipp’s intrastate authority for 30 days was reversed.

Both parties appealed to the Missouri Court of Appeals, Kansas City District, which reversed and remanded, directing the circuit court to remand to the PSC which, after reconsideration of the case, was directed to adopt a report and order in a public meeting after notice pursuant to the provisions of the Open Meetings Law, ch. 610, RSMo Supp.1973, commonly referred to as the “Sunshine Law”.

Thereafter, on application of PSC, we ordered the case transferred to this court in accordance with Mo. Const, art. V, § 10, and we now decide it as though here on direct appeal. We reverse and remand with directions.

Philipp, in arguing that when voting on the proposed report and order in this case the PSC members were required to assemble in a meeting at which they cast their votes thereon, relies on two statutory provisions. The first of these is § 386.130.

Chapter 386 governs the creation and organization of the PSC. It was enacted originally in 1913. Section 386.130, relied on by Philipp as governing the disposition of this case, covers organization of the PSC, authorizes meetings thereof and defines what is a quorum for the transaction of business. It is unchanged from the form in which it was enacted in 1913. 1913 Mo. Laws, p. 564, § 12.

Philipp argues that § 386.130 makes the commission a collegial body which is required to hold meetings at which it makes the final decisions as a body. That its language so requires, says Philipp, is clear because the section was taken from a New York statute which, at the time it was borrowed, had been construed by the New York courts as requiring that an order disposing of a case be adopted at a meeting of the commission at which a quorum was present.

The New York statute from which the predecessor of § 386.130 is said to have been taken was 1907 N. Y. Laws, ch. 429, § 11. Comparison of the two sections, set out side by side, shows that they are almost identical.

There are only two differences in the two sections. Missouri added the sentence at the beginning which provides that the commission shall organize promptly. That did not alter the meaning of the portion borrowed from the New York statute. The other difference is in the third sentence of § 386.130 wherein the word “the” precedes the word “commission” whereas in the corresponding sentence in § 11 of the New York statute the word “commission” is preceded by the word “either”. This difference is accounted for by the fact that in New York there was a commission for each of two districts whereas in Missouri there is a commission for the entire state. See 1907 N. Y. Laws, ch. 429, §§ 3 and 4.

The identity of the two statutes supports the contention of Philipp that § 386.130 was borrowed from the New York statute. PSC does not contend otherwise in its brief. That this frequently occurred was recognized by this court in Burnside v. Wand, 170 Mo. 531, 71 S.W. 337 (banc 1902). The court considered in that case the source of a Missouri statute pertaining to actions on bonds for the breach of any condition other than the payment of money. In concluding that the Missouri statute was borrowed from New York, the court said, 71 S.W. at 350:

“ * * * But there are such differences apparent between our statute and the English statutes as to arrest, at once, the attention, and to force the inquiry whether our statute is made up of the statute of Anne and William, with such changes as suggested themselves to the minds of our legislators, or whether our statute is borrowed from the statutes of some other state. Induced by this thought, the mind is at once prompted to look to the statutes of the state of New York, principally because so large a part of our statute laws have been borrowed from that state. The result of such an inquiry is that the laws of New York are found to be almost identical with our statutes. The phraseology of both statutes compels the conviction that our statute, passed for the first time in 1835 (Rev.St.1835, p. 430), was borrowed from the New York statutes of 1829. * ⅝ * ”

We conclude and hold that what is now § 386.130 was borrowed from 1907 N. Y. Laws, ch. 429, § 11. That occurred in 1913. At that time, § 11 of the N. Y. law had been construed in People v. Whitridge, 144 App.Div. 486, 129 N.Y.S. 295, 298 (1911), aff’d, 204 N.Y. 646, 97 N.E. 1112 (1912), as follows:

“ * * * The statute provides that:
‘A majority of the commissioners shall constitute a quorum for the transaction of any business, for the performance of any duty, or for the exercise of any power of the commission, and may hold meetings at any time or place within the state.’ Section 11.
“The body is not composed of five individuals authorized to act independently, for the act provides that ‘there shall be a Public Service Commission for each district.’ Section 4.
“And, while individual commissioners may hold ‘investigations, inquiries and hearings’ (section 11), the final act must be that of the commission as a body at a meeting attended by a quorum, and it is only for the violation of an order of the commission as such a body that a penalty can be imposed. In order that there should have been a valid order, it was necessary that it should appear that it had been adopted by the commission, acting at least by a majority, and at a stated meeting, or a meeting properly called and of which all the commissioners had been notified and had had an opportunity to be present. 10 Cyc. p. 323. No attempt was made to supply this proof. Although the commission is a most important and powerful one, it appeared that no minutes are kept of its proceedings; at least, none were produced, although an opportunity was given plaintiffs to produce them, if they existed. Thus, as the case was finally presented, there was absolutely no legal evidence, or any evidence at all, that the commission had ever adopted the order which defendant is charged with having violated.”

One of the well established rules of statutory construction is that when a state borrows a statute from another state and enacts it into law, the borrowing state also adopts the interpretation placed thereon prior to the time of enactment in the borrowing state by the courts of the state from which the statute was taken. This rule was stated in Burnside, 170 Mo. 531, 71 S.W. at 350, thus:

“* * * It is a rule of law that when a statute is borrowed from another state the decisions of the state from which the statute is borrowed, interpreting such statute, are borrowed also. For it is presumed that the legislature adopting the statute of a sister state knew of the interpretation placed upon the statute by the courts of such sister state, and intended that a like interpretation should be put upon the statute after it became a part of the laws of the adopting state. When we adopt the New York statutes we therefore adopted the interpreting decisions of that state also.”

This doctrine was reaffirmed in State v. Anderson, 515 S.W.2d 534, 539 (Mo.banc 1974):

“* * * The rule is well established that when the legislature enacts into law a statute which they take from the laws of another state, they adopt the interpretation placed thereon by the courts of that state prior to the time the statute is enacted by Missouri. This rule was expressed in General Box Co. v. Missouri Utilities Co., 331 Mo. 845, 55 S.W.2d 442, 447 (1932) as follows:
‘It should be noted that this construction of the Nebraska statute was placed thereon by the highest court of that state prior to its adoption here, and the law is well settled that, when one state adopts a statute of another state which the courts of that state have construed, then such construction will be held to have been adopted along with the statute. Schott v. Continental Auto Ins. Underwriters, 326 Mo. 92, 31 S.W.2d 7, 11; State ex rel. Westhues v. Sullivan, 283 Mo. 546, 578, 224 S.W. 327; Yost v. Railroad, 245 Mo. 219, 238, 149 S.W. 577.’ ”

Under the rule articulated in Burnside and Anderson and the cases cited therein, Missouri, in borrowing § 11 from New York, enacted it with the meaning ascribed thereto in Whitridge. That meant that our statute, presently § 386.130, provides that “while individual commissioners may hold ‘investigations, inquiries and hearings’ * * *, the final act must be that of the commission as a body at a meeting attended by a quorum * * *. In order that there should have been a valid order, it was necessary that it should appear that it had been adopted by the commission, acting at least by a majority, and at a stated meeting, or a meeting properly called and of which all the commissioners had been notified and had an opportunity to be present.”

The PSC concedes that there was no such meeting. Instead, the report and order was adopted pursuant to the notational voting procedure previously described. Hence, the procedure followed did not conform to the requirements of § 386.130. As a result, the order is voidable and is subject to attack in this proceeding for review and the appeal from the action of the circuit court thereon, unless, for one of the reasons advanced by PSC, a contrary result is indicated.

In the first place, PSC contends that § 386.130 simply does not say that the members must assemble in a group to adopt orders or that notational voting is prohibited. In other words, says PSC, “If this statute requires a meeting, it is not obvious on the face of it.” This argument ignores completely the fact that when Missouri enacted what is now § 386.130, it adopted a statute which, having been so construed in New York, meant in Missouri that a meeting is required to vote on and adopt an order such as the one involved in the case. Interpreting § 386.130, we do not look solely at the language of the statute. Rather, as stated in Burnside and Anderson, we must read it as the statute from which it was taken was interpreted in Whitridge. We overrule this contention.

Another argument advanced is that § 386.130, when read in pari materia with § 386.040, does not prohibit notational voting. Although no reference is made by PSC to Whitridge, this argument apparently presupposes that somehow § 386.040 would nullify the effect of Whitridge. We find no merit in this contention. Sec. 386.-040 simply provides for establishment of the commission, and, after reciting that it shall have the powers and duties specified in the chapter, states that it shall have “all powers necessary or proper to enable it to carry out fully and effectually all the purposes of the chapter”. We find nothing in that language which indicates that the legislature intended thereby to amend or change § 386.130 or to eliminate the requirement of § 386.130, as interpreted in Whitridge, that orders be adopted at a meeting of the commission. Nor are we persuaded to a contrary result by Braniff Airways, Inc. v. C.A.B., 126 U.S.App.D.C. 399, 379 F.2d 453 (1967) or T.S.C. Motor Freight Lines, Inc. v. United States, 186 F.Supp. 777 (S.D.Tex.1960), aff’d per curiam sub nom. Herrin Transp. Co. v. United States, 366 U.S. 419, 81 S.Ct. 1356, 6 L.Ed.2d 387 (1961), both cited by Philipp. These cases, each interpreting a federal statute, held that such statutes did not specifically require that members of the administrative body meet in a formal meeting to take administrative action. Both approved notational voting. In so holding, T.S.C. Motor Freight Lines, Inc. placed some reliance on a provision in the I.C.C. Act somewhat comparable to the language in § 386.040. However, in neither of those cases was the court interpreting statutory language which, by authoritative judicial decision, had been construed previously to mean that a meeting of the commission was required when orders were adopted. Neither case provides authority for overruling or ignoring the rule of statutory construction established by Burnside and Anderson whereby we adopted § 386.-130 as it had been construed by the New York courts at the time we borrowed the statute.

Next, PSC argues that if § 386.130 is ambiguous as to whether or not notational voting is permissible, we should give great weight to the long standing interpretation of the statute by the PSC that permits notational voting. It argues that use of such voting has been open and of long standing and the statute should be interpreted accordingly.

It is true that administrative interpretation is utilized as a tool for determining legislative intent when construing an ambiguous statute. However, such tool may not be utilized in a situation wherein prior to such administrative interpretation the statute had been judicially interpreted. Administrative interpretation would not be permitted to alter or overturn a prior judicial construction of the statute.

Here we deal with a statute which, when borrowed in 1913, had been judicially interpreted in New York. That judicial interpretation was adopted when we enacted that statute. This being true, the commission could not circumvent that judicially established meaning by a subsequent administrative interpretation.

Finally, PSC argues that by the procedure followed in adopting the report and order in this case, there was substantial compliance with chapter 386 and that when § 386.130 is read in pari materia with § 386.610, such substantial compliance was sufficient. We should not reverse for mere technical error, argues PSC, nor should we permit the decision-making process of PSC to be subject to inquisition on appeal, absent a showing of substantial prejudice. Cases cited to support this contention are United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941), Commonwealth v. Commonwealth, Public Utility Commission, 17 Pa.Cmwlth. 351, 331 A.2d 598 (1975), and Braniff Airways, Inc. v. G.A.B., supra.

We find no basis in this argument for sustaining the system of notational voting in lieu of meetings of the commission at which cases are decided and orders adopted. Morgan involved the propriety of actions taken by the Secretary of Agriculture in setting maximum rates to be charged by market agencies for their services at the Kansas City stockyards and the subsequent impounding of excess funds. The trial court held the Secretary’s order invalid and in the process authorized the taking of a deposition from the Secretary. The Supreme Court reversed, saying 313 U.S. at 422, 61 S.Ct. at 1004:

“The proceeding before the Secretary [of Agriculture] ‘has a quality resembling that of a judicial proceeding:’ . Such an examination of a judge would be destructive of judicial responsibility. . Just as a judge cannot be subjected to such a scrutiny, ... so the integrity of the administrative process must be equally respected. . . . ”

Morgan laid the foundation for the rule, followed in the other cases cited by PSC, that the administrative decisional process cannot be probed and questioned on appeal. But see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

None of these cases, all of which deal with the right to probe the internal procedures involved in the administrative deci-sional process, are pertinent to the issue we resolve. That question is simply this: Does § 386.130 require a meeting of the commission at which this case is to be decided or does the statute permit the notational voting which was employed, thereby utilizing separate individual actions by commissioners which are then “tacked” or consolidated to produce a decision. When we decide that question, we are not conducting or sanctioning an inquisition into the decision-making process of the PSC. Nor are we examining for mere technical error.

As previously noted, Philipp also cites a second statute which it says requires the PSC to decide this case and enter the necessary order at a meeting of the commission rather than by notational voting. That statute is ch. 610 RSMo Supp.1973, and particularly § 610.015 thereof. Having concluded that § 386.130 so requires, we see no useful purpose in extending this opinion to decide whether § 610.015 provides an additional mandate for that method of acting on reports and orders such as here involved. We do note that the PSC acknowledges in its brief that the Open Meetings Law does apply to it, saying, “The Commission fully concedes that it is a ‘public governmental body’ and thus subject to the Sunshine Law (610.010[2]) * * We agree with that conclusion. Cohen v. Poelker, 520 S.W.2d 50 (Mo.banc 1975).

The judgment is reversed and the case is remanded to the Circuit Court of Cole County with directions to further remand it to the Public Service Commission for handling in accordance with the views herein expressed.

SEILER, C. J., and HENLEY, J., concur.

DONNELLY, J., concurs in separate concurring opinion filed.

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

MORGAN and RENDLEN, JJ., dissent and concur in separate dissenting opinion of BARDGETT, J.

DONNELLY, Judge,

concurring.

1 concur in the principal opinion and agree that the Public Service Commission of Missouri is, in a general sense, subject to the Sunshine Law. However, I wish to expressly reserve the right to decide, when it is presented, the question whether the Sunshine Law applies in situations where the Commission is exercising a quasi-judicial function and constitutional rights of privacy and due process are involved. See dissenting opinion of Dekle, Justice, in Canney v. Board of Public Instruction of Alachua County, Florida, 278 So.2d 260, 264 (Fla.1973).

BARDGETT, Judge,

dissenting.

I respectfully dissent. The New York case of People v. Whitridge, 144 App.Div. 486, 129 N.Y.S. 295 (1911), was affirmed without opinion in 1912, 204 N.Y. 646, 97 N.E. 1112. The Missouri statute was adopted by the general assembly in March 1913. According to the briefs in this case the Missouri Public Service Commission has always utilized a system of “notational voting”. Notational voting is simply a method used to record the votes of the commission members after the matter has been fully heard, probably discussed between some or all of the commissioners, and a proposed opinion (report and order) has been prepared and circulated to all of the commissioners. The commissioner “notes” his vote while in his office rather than physically meeting with the other commissioners in order to vote or cast his vote in their presence. The principal opinion holds that the commissioners cannot utilize notational voting to adopt a decision. As I understand it, that is the limited scope of the court’s holding in this case.

Nevertheless, even though the opinion be narrow in scope, I dissent. Although I agree with the statement of the general rule of statutory construction set forth in the principal opinion and supported by Burnside v. Wand, 170 Mo. 531, 71 S.W. 337 (banc 1902), and State v. Anderson, 515 S.W.2d 534, 539 (Mo.banc 1974), I do not accept such a rule of construction as absolutely binding on this court. I have great difficulty believing that the members of the general assembly of Missouri in March 1913 were cognizant of the Whitridge case decided in New York in 1912. I say this partly because it appears to be accepted by all parties that the Missouri Public Service Commission used “notational voting” from the beginning. I think that sixty-odd years of such practice, without complaints, should be given more weight than the principal opinion affords. If this interpretation and practice were clearly contrary to the statute then, of course, it should be given no weight at all. But the statute does not clearly prohibit the adoption of decisions by this method and, therefore, I think the procedural practice of the commission should be given great weight in deciding this narrow issue.

In my opinion no prejudice whatever accrued to Philipp Transit Lines by reason of the commission members noting their votes rather than meeting together simply to cast their votes in each other’s presence. Each member was required to read the evidence if he did not attend the particular hearing, section 536.080, RSMo 1969, State ex rel. Jackson County v. Public Service Commission, 532 S.W.2d 20 (Mo.banc 1975), and there is no contention that any irregularity occurred in that regard. Although Philipp Transit argues that the commission’s procedure makes it possible to bypass two of the five commissioners by not circulating the draft order to them, the practicalities of the situation dictate that it could not be done without the bypassed commissioners knowing about it. This is so because the participation or nonparticipation and vote of each member is recorded and made public.

None of the cases cited by appellant Phi-lipp Transit deal with notational voting in a pure sense. They are premised on a fundamental defect common to each case which was that notice and opportunity to vote was actually and prejudicially denied to at least one member or commissioner in each case. Those cases are Alabama Public Service Commission v. Redwing Carriers, Inc., 281 Ala. 111, 199 So.2d 653 (1967), Webster v. Texas & Pacific Motor Transport Co., 140 Tex. 131, 166 S.W.2d 75 (1942), Carroll v. Alabama Public Service Commission, 281 Ala. 559, 206 So.2d 364 (1968), Houston & North Texas Motor Freight Lines, Inc. v. Johnson, 140 Tex. 166, 166 S.W.2d 78 (1942), Terre Haute Gas Corp. v. Johnson, 221 Ind. 499, 45 N.E.2d 484, 48 N.E.2d 455 (1942), and Paola & F. R. Ry. Co. v. Commissioners of Anderson County, 16 Kan. 302 (1876).

In the instant case each commissioner was notified of the proposed opinion and order and was afforded the opportunity of voting. Four voted and one was absent, but as to the one absent no one contends, nor was it shown, that it constituted any irregularity.

In Braniff Airways, Inc. v. C.A.B., 126 U.S.App.D.C. 399, 379 F.2d 453 (1967), the court upheld the “notation” procedures utilized by the Civil Aeronautics Board. The C.A.B. was working under similar statutory language as the Missouri Public Service Commission. The court in Braniff concluded that the required forum need not be physically present at any one time and that the board was allowed “to proceed with its members acting separately, in their various offices, rather than jointly in conference.” 379 F.2d at 460. The court reasoned that the workload involved made this procedure quite reasonable and even drew an analogy between that notational voting system and the procedure used by the court itself. T.S.C. Motor Freight Lines, Inc. v. United States, 186 F.Supp. 777 (S.D.Texas, 1960), aff’d per curiam sub nom. Herrin Transp. Co. v. United States, 366 U.S. 419, 81 S.Ct. 1356, 6 L.Ed.2d 387 (1961).

The Missouri Public Service Commission issued 7,545 orders during the fiscal year July 1, 1971, through June 30,1972, Annual Report of Missouri Public Service Commission 1971-72, p. 9; 7,027 orders in fiscal 1972-73, and 7,950 orders in fiscal 1973-74, Missouri Public Service Commission Annual Report 1973-74, p. 6.

In my opinion the procedure called "notational voting" is not prohibited by sec. 386.-130, RSMo 1969, and is fully justified by the workload of the commission. I would hold that sec. 386.130 does not require a formal meeting to cast votes and does not prohibit notational voting.

The other issue is whether a meeting is required by sees. 610.010-610.115 (Sunshine Law). The principal opinion did not need to reach that issue because of its determination that sec. 386.130 does not permit notational voting. In my opinion the Sunshine Law does not require a meeting for the purpose of voting to adopt a decision.

For the foregoing reasons I dissent.

ON REHEARING

PER CURIAM.

In its motion for rehearing, the Pubic Service Commission again argues that in order to permit commissoners to attend local hearings over the state and at the same time handle the large volume of orders, it needs the flexibility provided by a system of notational voting. It further urges that if there is to be a requirement that members meet to vote upon matters before it, the legislature should impose that obligation. This contention overlooks the fact that we have held that the present statute does so require. If that is to be changed, the request necessarily must be addressed to the general assembly.

Respondents' motion for rehearing is overruled.

      . . Under this procedure, frequently employed by the PSC, each commissioner, after consideration of the circulated order, indicates approval or dissent on a notational voting sheet which accompanies the report and order. If a commissioner is not in agreement, he has various options, including requesting a conference or preparing and filing a dissent.

      . The PSC order directed Philipp to cease providing service between St. Louis and Kansas City. It also suspended Philipp’s intrastate authority for 30 days and ordered the PSC General Counsel to file an action seeking penalties for violations under § 390.051 RSMo 1969. Since we conclude that a meeting of the PSC was necessary and reverse and remand for that reason, we do not detail the evidence relative to the operations between St. Louis and Kansas City and whether they were authorized.

      . All statutory references are to RSMo 1969 unless otherwise indicated.

        Sec. 386.130 RSMo 1969
      “The commission shall promptly and duly organize. A majority of the commissioners shall constitute a quorum for the transaction of any business, for the performance of any duty or for the exercise of any power of the commission, and may hold meetings of the commission at any time or place within the state. Any investigation, inquiry or hearing which the commission has power to undertake or to hold may be undertaken or held by or before any commissioner. All investigations, inquiries, hearings and decisions of a commissioner shall be and be deemed to be the investigations, inquiries, hearings and decisions of the commission, and every order and decision made by a commissioner, when approved and confirmed by the commission and ordered filed in its office, shall be and be deemed to be the order of the commission.”
      1907 N.Y.Laws. ch. 429. S 11
      “A majority of the commissioners shall constitute a quorum for the transaction of any business, for the performance of any duty or for the exercise of any power of the commission, and may hold meetings of the commission at any time or place within the state. Any investigation, inquiry or hearing which either commission has power to undertake or to hold may be undertaken or held by or before any commissioner. All investigations, inquiries, hearings and decisions of a commissioner shall be and be deemed to be the investigations, inquiries, hearings and decisions of the commission and every order made by a commissioner, when approved and confirmed by the commission and ordered filed in its office, shall be and be deemed to be the order of the commission.”

      . Our construction of § 386.130 is in accord with the rule stated in 2 Am.Jur.2d Administrative Law § 227 (1962):
      “The powers and duties of boards and commissions may not be exercised by the individual members separately. Their acts, and, specifically, acts involving discretion and judgment, particularly acts in a judicial or quasi-judicial capacity, are official only when done by the members formally convened in session, upon a concurrence of at least a majority, and with the presence of a quorum or the number designated by statute.”
      See also 73 C.J.S. Public Utilities § 58 (1951).
      It is of interest, but not determinative, that Missouri courts have established a similar requirement that various boards and commissions meet and act as a collegial body or body corporate rather than by a composite of individual actions by members of the board or commission, even if all concur in doing the particular thing. State ex inf. Mooney ex rel. Stewart v. Consolidated School Dist. No. 3, 281 S.W.2d 511 (Mo.App.1955); State ex rel. Bank of Belton v. Wray, 55 Mo.App. 646 (1893).

      . Sec. 386.610 provides as follows:
      “A substantial compliance with the requirements of this chapter shall be sufficient to give effect to all the rules, orders, acts and regulation of the commission, and they shall not be declared inoperative, illegal or void for any omission of a technical nature in respect thereto. The provisions of this chapter shall be liberally construed with a view to the public welfare, efficient facilities and substantial justice between patrons and public utilities.”


author: FINCH, Judge.

text:
    Ed RYDER, Dan Labrayere, Ray Labrayere, and John Givens, partners, formerly known as Earthmoving, Inc., a Missouri Corporation, and Henry Stealey and Dorothy Stealey, husband and wife, Plaintiffs-Appellants-Respondents, v. The COUNTY OF ST. CHARLES, a second class County, Defendant-Appellant-Respondent, and The City of Wentzville et al., Intervenors-Defendants-Appellants-Respondents.
    No. 59820.
    Supreme Court of Missouri, En Banc.
    June 14, 1977.
    Plaintiffs-Appellants-Respondents' Motion for Rehearing Denied July 11, 1977.

      Paul F. Niedner, St. Charles, for appellants.
    Keith W. Hazelwood, St. Charles, for respondent.
   FINCH, Judge.

This case was transferred here pursuant to opinion of the Missouri Court of Appeals, St. Louis District, in Ryder v. County of St. Charles, Nos. 36571, 36802 and 37025 (Mo.App., filed Sept. 21, 1976), and we decide it as though here on direct appeal.

St. Charles, a second class county, adopted a zoning plan pursuant to §§ 64.510 to 64.690 inclusive. Under that plan certain land owned by plaintiffs (including land on which they had an option to purchase) was zoned A-l (agricultural use). Plaintiffs, desirous of opening and operating an open cut limestone quarry on the 124 acre tract in question, filed with the county planning and zoning commission an application to change the zoning for this tract to M-2 (industrial). A majority of that commission voted in favor of the requested rezoning and recommended to the county court that it approve the change. Thereupon, the City of Wentzville and certain property owners owning land adjacent to the proposed quarry filed remonstrances, the effect of which was to require unanimous approval of the county court for the proposed zoning change to be adopted. The rezoning was denied when the county court voted 2-1 in favor of the change.

Plaintiffs sought review of the county court action by filing a petition for writ of certiorari in the circuit court. They added to that petition a second count seeking a declaratory judgment that plaintiffs’ proposed use of the property as an open cut rock quarry could not be prohibited or regulated by St. Charles County by means of zoning regulations because § 64.560 exempts the recovery of natural resources by strip or open cut mining from the zoning which a second class county is authorized to adopt.

By sustaining a motion for summary judgment on Count I, the circuit court disposed of the petition for writ of certiorari adversely to plaintiffs. The case then proceeded on Count II which sought a declaratory judgment.

The City of Wentzville and the owners of property adjacent to the proposed quarry were permitted to intervene as defendants. All defendants then asserted by motions to dismiss and by their answers that § 64.560 does not limit the right of St. Charles County to zone the land in question because said statute is a special law which is violative of Mo.Const. art. Ill, § 40, and, hence, unconstitutional.

In its findings and conclusions, the trial court stated that there is at least arguable logic in the position taken by the defendants in asserting unconstitutionality of § 64.560 but that it would be presumptive for a trial court to rule the section unconstitutional. That, he concluded, should be determined at the appellate level. Having so stated, the court held the section to be constitutional and, hence, a limitation on the power of St. Charles County to zone the land so as to affect the recovery of limestone therefrom by open cut mining.

The court then proceeded to construe § 64.560, in order to determine whether the activities proposed by plaintiffs would be permissible as constituting “the recovery of natural resources by strip or open cut mining.” It held that the statutory language would permit plaintiffs to strip the overburden above the limestone deposits, to drill and blast the limestone rock, to use heavy machinery to transport the resulting sho-trock to a primary crusher located in the quarry pit and finally to further crush and screen the rock to various finished sizes of commercial value. All of these things, said the court, which constitute integral parts of the recovery of the natural resource limestone, would be within the purview of the exemption established by § 64.560 and could be performed on the premises. However, the court held that the plan of plaintiffs to stockpile the various finished products on the site and sell them from a building built to serve as a quarry office, sales office and scale office would not be an integral or permissible part of the recovery of the natural resource. Instead, those activities would constitute a commercial operation of selling the finished products. Accordingly, the court ruled that the products would have to be hauled to some other location and stockpiled there.

Defendants appealed from the judgment that § 64.560 is constitutional and that St. Charles County may not zone against the quarrying operation proposed by plaintiffs. Plaintiffs appealed from that portion of the judgment which denies them the right to stockpile the limestone on the site and then sell it from that location. No appeal was taken from the summary judgment entered as to Count I.

Do defendants have standing to attack the constitutionality of § 64.560?

A threshold issue raised by plaintiffs is their contention that constitutionality of § 64.560 may not be considered in this case for the reason that none of the defendants have standing to raise that issue. It is true that not just anyone has standing to attack the constitutionality of a statute. Only those adversely affected by the statute in question have the requisite standing. In order to determine whether the case must be dismissed for lack of standing, we consider whether any defendant has standing.

St. Charles County has acted pursuant to the planning and zoning statutes applicable to second class counties (§§ 64.-510-64.690) and in the exercise of its discretion has assigned areas to various types of zones. In so doing, the county is exercising the police power to promote the order, health, safety, morals, and general welfare of society. 16 C.J.S. Constitutional Law § 174 (1956). The provisions of § 64.560, if valid, limit the ability of the county to zone land consistently according to the best judgment of the county court. Since such statutory exemption directly affects the county’s action and, in its view, does so adversely, the county asserts that it should have standing to raise the question of constitutionality and have it judicially resolved pursuant to Mo.Const. art. Ill, § 40. In opposition, plaintiffs argue that local units of the government are mere arms of the state which may do only those things which the state authorizes them to do and that they have no right to attack the validity of a statute which affects them in the absence of a constitutional provision which gives them that right. In oral argument, counsel for plaintiff conceded that this would mean that even assuming that a law affecting operations of a county or city is one which under the constitution the legislature clearly may not pass, no county or city could raise that issue.

We overrule this contention. As the Supreme Court of Minnesota recognized in Minnesota State Bd. of Health v. City of Brainerd, 241 N.W.2d 624 (Minn.), appeal dismissed, 429 U.S. 803, 97 S.Ct. 35, 50 L.Ed.2d 63 (1976), a primary objective of the standing doctrine is to assure that there is a sufficient controversy between the parties that the case will be adequately presented to the court. That, plus the purpose of preventing parties from creating controversies in matters in which they are not involved and which do not directly affect them are the principal reasons for the rule which requires standing. Both of those objectives are satisfied in this case.

Furthermore, there are prior decisions of this court which support our decision that St. Charles County may attack the constitutionality of § 64.560. In State ex rel. Burke v. Cervantes, 423 S.W.2d 791 (Mo.1968), a dispute concerning wages and conditions of employment arose between firemen of St. Louis and the mayor. The firemen requested the mayor to act pursuant to the Firemen’s Arbitration Board Act and appoint an arbitration board to resolve the dispute. When he refused, the firemen sought mandamus to compel him to appoint the board. The trial court granted mandamus but this court reversed, holding the statute unconstitutional as applied to constitutional charter cities. If the position asserted herein by plaintiffs were sustained, the mayor of St. Louis would have had no standing to attack the constitutionality of the statute relied on by the firemen. The opinion in that case does not discuss standing, but we consider that the case necessarily recognizes that there was standing. See also City of St. Louis v. Missouri Commission on Human Rights, 517 S.W.2d 65 (Mo.1974) and State ex rel. Carpenter v. City of St. Louis, 318 Mo. 870, 2 S.W.2d 713 (banc 1928).

Having concluded that St. Charles County has standing and that based on its attack we will consider whether § 64.560 is unconstitutional as a special law, it would serve no useful purpose to extend this opinion in order to discuss or decide plaintiffs’ contention that the other defendants have no standing to raise the constitutional issue.

Is § 64.560 a special law which violates Mo.Const. art. Ill, § 40(30)2

Mo.Const. art. Ill, § 40(30) prohibits the legislature from passing a special law where a general law can be made applicable. It then makes the determination of whether a statute violates this constitutional limitation a judicial question to be resolved by the courts. The standards to be utilized by a court in deciding such a question have been stated and repeated in a number of cases. Some of the cases frequently cited include State ex rel. Toedebusch Transfer, Inc. v. Public Service Commission, 520 S.W.2d 38 (Mo. banc 1975); McKaig v. Kansas City, 363 Mo. 1033, 256 S.W.2d 815 (banc 1953); Reals v. Courson, 349 Mo. 1193, 164 S.W.2d 306 (1942); State ex rel. Hollaway v. Knight, 323 Mo. 1241, 21 S.W.2d 767 (banc 1929); City of Springfield v. Smith, 322 Mo. 1129, 19 S.W.2d 1 (banc 1929); and State ex inf. Barrett ex rel. Bradshaw v. Hedrick, 294 Mo. 21, 241 S.W. 402 (banc 1922).

It would serve no useful purpose to quote extensively from those and other cases. Perhaps they can best be summarized by what Judge Storckman said in Gem Stores, Inc. v. O’Brien, 374 S.W.2d 109, 118 (Mo. banc 1963):

“* * * The demands of the constitutional provision prohibiting a local or special law where a general law can be made applicable are satisfied if the statute in question includes all who are similarly situated and omits none whose relationship to the subject matter cannot reasonably be distinguished from those included.”

These are the tests which we apply in deciding defendants’ contention that § 64.560 is a special law.

The exemption established by § 64.560 is not made applicable to all who are engaged in the recovery of natural resources. If it had been, it clearly would have been applicable to all who are similarly situated and would have been a general law. It is not even made applicable to all who recover natural resources by mining. Instead, it is made applicable only to those recovering natural resources by mining by the strip or open cut method. Consequently, we must determine whether it applies to all who are similarly situated and whether it omits anyone whose relationship to the recovery of natural resources cannot be distinguished on any reasonable basis from those included.

In answering these questions, we look to the cases of City of Springfield v. Smith, supra, and McKaig v. Kansas City, supra, which we conclude are the ones which involved questions comparable to the ones we must resolve in this case.

In City of Springfield a defendant was prosecuted under a city ordinance which prohibited anyone from keeping open on Sunday “any theatre, playhouse, or any other place where theatrical performances, vaudeville shows or moving picture exhibitions are given or conducted, * * * The court recognized that not every kind of business would fall within the same category as amusement businesses but concluded there was no basis for omitting from the group named in the ordinance those engaged in “such public amusement businesses as concerts, circuses, amusement parks, public halls, sparring exhibitions, wrestling exhibitions, and like public amusement businesses, * * * 19 S.W.2d at 6. The ordinance was invalidated on the basis that it was a special law.

In McKaig the court dealt with an action to enjoin defendants from enforcing an ordinance which prohibited any automobile dealer from keeping his place of business open on Sunday or certain national holidays for the purpose of selling or trading automobiles. Plaintiffs contended that the ordinance was a special law which was void under Mo.Const. art. Ill, § 40(30). The court held the ordinance invalid, concluding that there was no reasonable basis for including automobile dealers while excluding those engaged in the business of selling television sets, radios, phonographs, refrigerators, washing machines, electric and gas ranges and heaters, trailers, golf equipment, furniture, hardware, clothing and many other articles. 256 S.W.2d at 817— 818.

Applying the same analysis and reasoning to this case, we must ask ourselves what justification can there be for exempting from county zoning the recovery of natural resources when it is done by strip or open cut mining but not when it is done otherwise? Does such statutory classification meet the test stated by Judge Storckman in Gem Stores, Inc. in that it “includes all who are similarly situated and omits none whose relationship to the subject matter cannot reasonably be distinguished from those included"?

The only explanation and justification advanced by plaintiffs for a legislative exemption limited to recovery of natural resources by strip or open cut mining is that since it is the most objectionable method of mining it is the type most likely to be zoned against and the legislature wanted to protect it from being zoned out of existence. They say that the legislature apparently concluded that regulation and control of this method of mining should be left to state and federal regulation and to utilization of the common law doctrine of nuisance. This, they say, provides a reasonable basis for the distinction contained in the exemption provided by § 64.560.

We find this argument not persuasive. State and federal regulation can be and is as applicable to other types of mining as it is to strip and open cut methods and if those means, plus availability of the doctrine of nuisance is adequate to control the latter, it is equally adequate to control the former. This explanation by plaintiffs does not demonstrate that the relationship of those employing methods other than strip and open cut mining have a relationship to zoning with reference to those recovering natural resources which can reasonably be distinguished from those utilizing strip or open cut methods.

Is there some other basis on which we might find that the method exempted by § 64.560 has a relationship to zoning which we can distinguish on a reasonable basis from that of the methods not included in the exemption?

If the purpose of the exemption is to make sure that natural resources are available for the benefit of the public and that second and third class counties cannot zone against such recovery, then such reason is applicable to all recovery thereof, not just to that which is done by strip or open cut mining. If the purpose is to insure the right to recover natural resources when done by means least offensive to the general public, then such objective is not accomplished by § 64.560 as written because it protects from zoning those whose method is most offensive to the public while allowing zoning against recovery by other less offensive methods. This is recognized in plaintiffs’ brief when it states “strip or open cut mining is perhaps the most objectionable method of mining”. The classification made by the exemption cannot be explained or justified on the basis that it was to protect the public from more offensive methods of recovering natural resources.

The impossibility of finding a reasonable basis for singling out and exempting from permitted zoning those mining by strip or open cut methods from others recovering natural resources perhaps can be illustrated by the following hypothetical. Assume that one owns a tract of land containing limestone deposits which is located in land zoned for agricultural purposes. If § 64.560 is valid, the owner could remove the overburden and then operate an open cut quarry to remove and crush the stone, free from any zoning restriction. However, if that same owner sought to utilize a less offensive method by cutting a hole in the side of a bluff, moving in equipment to do all blasting and crushing underground, and then sending the crushed stone out on conveyer belts, he would be in violation of the zoning for agricultural purposes and could be stopped. Counsel for plaintiffs conceded during oral argument that this would be true. What possible reasonable basis exists for such a distinction in what the same owner can do on the same tract to recover exactly the same natural resources? It seems obvious that such classification, established by § 64.560, is no more reasonable than those held bad in City of Springfield and McKaig.

We hold that § 64.560 is a special law and therefore unconstitutional under the provisions of Mo.Const. art. Ill, § 40(30). Accordingly, we reverse and remand with directions to enter a judgment in conformity with the views herein expressed. This holding disposes of the appeal of defendants from that portion of the judgment which held § 64.560 constitutional and the appeal of plaintiffs which sought reversal of that part of the judgment which limited what they would be permitted to do under the exemption contained in § 64.560.

SEILER, C. J., and MORGAN, BARD-GETT, HENLEY, DONNELLY, JJ., and FLANIGAN, Special Judge, concur.

RENDLEN, J., not sitting.

      . All statutory references are to RSMo 1969 unless stated otherwise.

      . Sec. 64.560 provides as follows:
      “That nothing herein shall affect the recovery of natural resources by strip or open cut mining; provided that commercial structures shall be permitted in all districts except those zoned for residential or recreational use. (L.1951 p. 406 § 18)”

      .Mo.Const. art. Ill, § 40, provides in pertinent part as follows:
      “The general assembly shall not pass any local or special law: * * * (30) where a general law can be made applicable, and whether a general law could have been made applicable is a judicial question to be judicially determined without regard to any legislative assertion on that subject.”


author: DONNELLY, Judge. SHANGLER, Special Judge,

text:
    STATE ex rel. Norman Forrest CARLTON, Relator-Petitioner, v. Edward HAYNES, Director, Missouri Department of Corrections, Respondent.
    No. 59838.
    Supreme Court of Missouri, En Banc.
    June 14, 1977.
    Petitioner’s Motion for Rehearing Denied July 11, 1977.

      T. Christopher Graham, Jefferson City, for relator-petitioner.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   DONNELLY, Judge.

Petitioner brought this action seeking a writ of habeas corpus. The writ was ordered issued and counsel was appointed for petitioner. Petitioner is presently in the custody of the Missouri Department of Corrections and confined at the Missouri State Penitentiary in Jefferson City, Missouri.

On July 9, 1970, petitioner pleaded guilty to first degree robbery before Judge James F. Nangle in the Circuit Court of the City of St. Louis. On October 22, 1970, Judge Nangle, according to the record, suspended imposition of sentence and petitioner was placed on three years’ probation.

On April 3, 1973, Judge Nangle ordered petitioner’s probation revoked; however, on April 13, 1973, Judge Nangle ordered the revocation be “disregarded” and reinstated petitioner’s probation for a term which would expire on October 22, 1975, thereby extending the original period of probation by two years.

On February 11, 1974, petitioner was accepted into a “half-way house” known as Archway House in St. Louis, Missouri. Petitioner agreed with his probation officer that he would reside there subject to the rules and regulations of the facility. On or about March 29, 1974, petitioner was granted a week-end furlough from Archway House from which he failed to return. On April 15,1974, petitioner’s probation officer issued a probation violation warrant because petitioner was absent from Archway House without permission. Petitioner returned to Archway House of his own volition on May 20,1974, but left again on June 23, 1974.

On September 10, 1974, petitioner failed to appear in Circuit Court at his probation revocation hearing. On May 5,1975, a capi-as warrant was issued by the Circuit Court for the arrest of the petitioner. Petitioner’s probation officer also issued another probation violation warrant for petitioner. On August 6, 1975, petitioner was arrested on several charges, including probation violation. Petitioner was hospitalized subsequent to his arrest and the probation revocation hearing, set for September 12, 1975, was continued because of petitioner’s illness.

Eventually, a revocation hearing was held on October 27, 1975, five days after petitioner’s probation was to expire under the extension ordered by Judge Nangle on April 3, 1973. Petitioner appeared represented by counsel, at the revocation hearing before Judge Thomas W. Challis. As a result of the evidence presented at the hearing, Judge Challis revoked petitioner’s probation for several reasons enumerated in the findings and order of the court. Further, the court ordered that petitioner be brought before the court for imposition of sentence on the charge of first degree robbery to which petitioner entered a plea of guilty on October 22,1970. On December 1, 1975, the petitioner appeared before Judge Challis who imposed a sentence of ten years imprisonment, suspended execution of the sentence, and placed petitioner on another term of probation for three years.

On March 29, 1976, petitioner was convicted and sentenced on a charge of common assault in the St. Louis Court of Criminal Corrections. Once again execution of sentence was suspended and petitioner was placed on probation. Two days later, a probation violation warrant authorizing the apprehension of the petitioner was issued by his probation officer.

Finally on April 23, 1976, petitioner appeared with counsel once more at a probation revocation hearing before Judge Challis. Petitioner’s probation was ordered revoked for the reason that he had been convicted of common assault and had thereby violated the laws of this state which, of course, also constituted a violation of petitioner’s conditions of probation. Judge Challis ordered execution of the ten-year sentence he had previously imposed.

The center of controversy in this case involves the statutory construction and interrelationship of §§ 549.071, .101, and .111, RSMo 1969, as amended, which read as follows:

“549.071. Parole and probation may be granted, when — terms, length of— extensions
“1. When any person of previous good character is convicted of any crime and commitment to the state department of correction or other confinement or fine is assessed as the punishment therefor, the court before whom the conviction was had, if satisfied that the defendant, if permitted to go at large, would not again violate the law, may in its discretion, by order of record, suspend the imposition of sentence or may pronounce sentence and suspend the execution thereof and may also place the defendant on probation upon such conditions as the court sees fit to impose. The probation shall be for a specific term which shall be stipulated in the order of record. In the case of a felony offense no probation under this chapter shall be granted for a term of less than one year, and no probation shall be granted for a term of longer than five years. In the case of a misdemeanor offense no probation shall be granted for a term of longer than two years. The court may extend the term of the probation, but no more than one extension of any probation may be ordered.
“2. The courts, subject to the restrictions herein provided, may, in their discretion, when satisfied that any person against whom a fine has been assessed or a jail sentence imposed, will, if permitted to go at large, not again violate the law, parole the defendant upon such conditions as the court sees fit to impose. Added Laws 1963, p. 671, § A(§ 3), as amended Laws 1967, p. 668, § 1.
“549.101. Arrest of person on probation or parole — revocation of probation or parole — costs—second probation or parole
“1. The court granting probation or parole may at any time before order of discharge without notice to the defendant order his apprehension by the issuance of a warrant for his arrest and his appearance in court forthwith. Any probation or parole officer assigned to or serving the' court or judge having jurisdiction may arrest such defendant without a warrant, or may deputize any other officer with power of arrest to do so by giving him a written statement setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. The written statement delivered with the defendant by the arresting officer to the official in charge of a county jail or other place of detention shall be sufficient warrant for the detention of the defendant. After making an arrest the probation officer shall present to the detaining authorities a similar statement of the circumstances of violation. The court may in its discretion with or without hearing, order the probation or parole revoked and direct that the sentence theretofore imposed be commenced and order execution thereof or in the event imposition of- sentence was suspended the court may pronounce sentence and order execution thereof. The court may in its discretion, order the continuance of the probation or parole upon such conditions as the court may prescribe. The court in its discretion may order the allowance in mitigation of the sentence credit for all or for part of the time the defendant was upon probation or parole.
“2. After probation or parole has been revoked, as provided in subsection 1, the court may in its discretion require the payment of all costs in the case and may grant a second probation or parole, but no more than two probations or parole shall be granted the same person under the same judgment of conviction. Laws 1963, p. 671, § A (§ 6), as amended Laws 1965, p. 664, § 1.
“549.111. Absolute discharge of person on probation or parole — citizenship restored — order of discharge to indicate restoration of rights
“1. When a defendant who has been placed upon probation or parole for the term prescribed by the court, and the court granting the probation or parole is satisfied that the reformation of the defendant is complete and that he will not again violate the law, the court shall, by order of record, grant his absolute discharge. When a defendant has completed the term of probation prescribed by the court, if the original order of probation has not been amended, modified, extended or revoked by the court, he shall automatically be absolutely discharged from the probation and from the supervision of the board of probation and parole and the court shall so note by order of record. The order operates as a complete satisfaction of the original judgment by which the fine or jail sentence or commitment to the state department of corrections was imposed or suspended.
“2. Any defendant who receives his final discharge under sections 549.058 to 549.161 shall be restored all the rights and privileges of citizenship. The court granting the final discharge shall supply the defendant with a copy of the order terminating probation, which shall clearly indicate that all the rights and privileges of citizenship have been restored. The court shall also send a copy of the order of final discharge to the board of probation and parole if the defendant has been under the supervision of the board. Added Laws 1963, p. 671, § A (§ 7), as amended Laws 1967, p. 668, § 1.”

Petitioner first contends that the circuit court was without jurisdiction to hold the revocation hearing that took place on October 27,1975. Petitioner points out that the term of his probation expired on October 22, 1975, five days before the hearing, and since his period of probation had been extended once already by Judge Nangle, on April 13, 1973, it could not be extended again. According to petitioner, by holding the hearing after the date his probation expired, the court in effect granted a second extension of his probation in order to retain its jurisdiction in the matter and such an extension is impermissible under § 549.071.1, which prohibits any court from granting more than one extension of any probation.

The undisputed facts of this case, relevant to this point, show both the issuance of the warrant for petitioner’s arrest and his apprehension for probation violation occurred during his probation. Moreover, a hearing had been scheduled before the expiration of the probationary period, but was continued due to petitioner’s hospitalization and consequent inability to appear before the court. In order to have prevented petitioner from being “automatically” and “absolutely discharged” by the expiration of his term of probation, as mandated by § 549.-111.1, RSMo 1969, petitioner maintains the trial court could only have summarily revoked his probation prior to its expiration.

While it may be conceded that summary revocation as was employed in Brandt v. Percich, 507 S.W.2d 951 (Mo.App.1974), would prevent the court from losing jurisdiction at the conclusion of the period of probation, it is not the sole means by which the court may retain jurisdiction over a probationer, who through no fault of the court or prosecutorial authorities, would have been unavailable or unable to appear at a revocation hearing if such a proceeding had been held before the expiration of the probation period.

Although “we recognize the vital significance of the fixed period of probation to probationers” in terms of creating an expectation of regaining one’s liberty, we can envision that “a revocation can occur after the probationary period only if the violation is one that occurred during that period and if formal revocation procedures — usually the issuance of an arrest warrant — are initiated during-that period.” United States v. Strada, 503 F.2d 1081, 1084 (8th Cir. 1974). The jurisdiction of the circuit court attached upon the execution of the warrant by arrest. At that instant the court acquired control of the person of the defendant for the purposes of the revocation proceedings. State ex rel. Lamar v. Impey, 283 S.W.2d 480, 483 (Mo. banc 1955). Of course, no unreasonable delay should occur in affording the probationer a hearing. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed. 484 (1972); Moore v. Stamps, 507 S.W.2d 939, 950-951 (Mo.App.1974).

In conclusion on this point we find that the issuance of the warrant within a reasonable time after the court learned of the probation violation, and the execution of the warrant within a reasonable time after its issuance, vested the court with jurisdiction over the person of the petitioner, and such jurisdiction was not divested by the postponement for good cause of the revocation hearing until a date after the expiration of petitioner’s term of probation, unless the resulting delay was unreasonable and prejudicial to the petitioner. See, Gag-non, supra; Morrissey, supra. “In any event petitioner is not entitled to relief by reason of . any delay in holding the final revocation hearing unless he was prejudiced thereby. And the burden is upon him to make such a showing.” Ewing v. Wyrick, 535 S.W.2d 443, 445 (Mo. banc 1976). Petitioner made no such demonstration of prejudice.

Secondly, petitioner suggests that there is a conflict between §§ 549.071 and 549.101, RSMo 1969, since § 549.071.1, with reference to granting probation, limits the length of any probation to a maximum term of five years and prohibits extending any person’s probation more than once. On the other hand, § 549.101 concerns the alternatives available to the court when considering revocation of probation. Under § 549.101.2 the court may, after revocation of a person’s probation, grant a second probation. Petitioner contends that the legislature intended that under no circumstances should a person serve more than five years’ probation for any one judgment of conviction. Furthermore, petitioner argues since § 549.071.1 was enacted in 1967 and § 549.-101.2 was enacted in 1965, the later enactment of § 549.071.1 prevails and by implication repeals § 549.101.2.

We believe the two sections are in pari materia and must be harmonized, if this can be done. In State ex rel. Cairo Bridge Commission v. Mitchell, 352 Mo. 1136, 1143, 181 S.W.2d 496, 499 (banc 1944), this Court said:

“. . . Statutes are in ‘pari materia’ when they are upon the same matter or subject. 31 C.J., p. 358; and the rule of construction in such instances proceeds upon the supposition that the several statutes relating to one subject were governed by one spirit and policy and were intended to be consistent and harmonious in their several parts and provisions.”

While it is true that under § 549.-071.1 a person cannot be ordered to serve more than five years on any one term of probation, a court may order a person to serve two terms of probation under the authority of § 549.101.2. Thus, a court may lawfully order a person to serve more than five years’ probation when, as in the instant case, the court revokes the probation granted after judgment of conviction but before imposition of sentence, and imposes the sentence, but then suspends execution of the sentence and grants a second probation as provided for by § 549.101.2. This procedure followed by Judge Challis on December 1, 1975, fully comported with one of the authorized alternatives available to a judge following revocation of a person’s probation and for that reason petitioner is not entitled to discharge under § 549.111.1.

Lastly, petitioner maintains that the sentencing procedure in this cause was irregular and excessive. We may not address this contention in an action brought to obtain a writ of habeas corpus since a motion filed pursuant to our Rule 27.26 is the exclusive procedure by which to attack and have corrected or vacated an unlawful sentence. Wiglesworth v. Wyrick, 531 S.W.2d 713, 715-716 (Mo. banc 1976).

Accordingly the writ of habeas corpus is quashed and petitioner is remanded to the custody of the respondent.

MORGAN, HENLEY and FINCH, JJ., concur.

BARDGETT, J., concurs in result.

SHANGLER, Special Judge, concurs in result in separate opinion filed.

SEILER, C. J., dubitante by reason of Smith v. Carnes, 481 S.W.2d 243 (Mo. banc 1972).

RENDLEN, J., not sitting.

SHANGLER, Special Judge,

concurring in result.

The principal opinion finds no cause for discharge of the petitioner on habeas corpus, and on the singular chronology of the events pleaded and proved, I concur. I do not concur, however, that the opinion can serve as precedent for the construction the court gives to §§ 549.071 and 549.101, RSMo 1969, as amended, except under circumstances which antedate Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and those opinions which have since invested the procedures to alter or revoke a probation already granted with benefits of due process.

The petition for habeas corpus contends that the three year period of probation imposed by Judge Nangle on October 22,1970, and extended to five years on April 13, 1973, was fully served by October 22, 1975, ■ that the period thereafter until formal revocation on November 21, 1975, was an impermissible second extension of probation under § 549.107.1 and so he was entitled to absolute discharge from custody under § 549.111.1.

The court answers that the issuance of capias and arrest of petitioner were both accomplished before expiration of probation, and that the hearing scheduled within that time was postponed because of the physical disability of petitioner to appear. The court explains that while summary revocation of probation was a method available to preserve jurisdiction over the person of the petitioner, commencement of revocation proceedings by warrant and arrest within a reasonable time after knowledge of the violation — and before expiration of the probation term — accomplished the same purpose. The court goes on to say that, in any event, the burden is on petitioner to show prejudice from delay of the final revocation hearing, a proof not made here.

I all but agree with the response by the court to this first contention. The use of summary revocation of probation as a means to preserve jurisdiction of the court — but not as a substitute for the hearings required for substantive revocation— over a subject who escapes and remains at large does not offend the due process requirements of Morrissey and Gagnon. A probationer should not be allowed to profit from his abscondence by the claim, after the period of probation has terminated, that the court no longer has jurisdiction over him. People v. Vickers, 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313 (Bank 1972); Brandt v. Percich, 507 S.W.2d 951, 957[9] (Mo.App.1974). This discussion of summary revocation is precluded here by the fact that the delay was occasioned by the probationer and for the benefit of his physical condition. In a word, the petitioner waived the hearing scheduled for within the probationary period and simply cannot be heard to complain that the adjudication of his status was determined after the end of the formal term of probation. People v. Ham, 44 Cal.App.3d 288, 118 Cal.Rptr. 591, 595[6] (1975); People v. Journey, 58 Cal.App.3d 24, 129 Cal.Rptr. 478, 480 (1976).

I do take issue with the holding of the opinion that in the circumstances presented the burden was on petitioner to show prejudice from the delay in the conduct of revocation hearing. Ewing v. Wyrick, 535 S.W.2d 443 (Mo. banc 1976) does not bear on the point to which it is cited by the court because that hearing was eventually held within the probationary period. In view of the provision in § 549.111.1 for the automatic and absolute discharge of a probationer upon completion of his term, however, where the probation is revoked after the expiration of the designated term, the burden to go forward with evidence that there was legal excuse for the delay falls on the State, not the probationer.

The petition for habeas corpus makes the second contention that § 549.071.1 which provides that no probation for a felony may be granted for a term longer than five years and may be extended only once and § 549.101.2 which purports to allow a second probation for the same conviction are in conflict, and consequently the later enactment which limits probation for a felony to five years repeals the earlier statute by implication and governs. The petitioner contends he has served the full five year term of probation and is entitled to be discharged from custody.

The opinion finds these statutes compatible because although under § 549.071.1 a person cannot be ordered to serve more than five years on any one term of probation, under § 549.101.2 the court may order a person to serve two terms of probation for one conviction, and as a result the second period of probation imposed by Judge Challis was proper under § 549.101.2 following the revocation of the first probation [the total of five years imposed by Judge Nangle]. The opinion sees a difference between an extension of probation already granted [§ 549.071.1] and a grant of second probation upon revocation of the first for the same conviction [§ 549.101] and so comes to a view that these statutes permit a term of probation under a conviction for felony which could exceed five years and two enlargements of the probationary term.

Such a construction may have been plausible when these statutes — and their amendments — were enacted, but these statutes have since become suffused with the due process values of Morrissey and Gagnon and can no longer be understood outside of that matrix; §§ 549.071 and 549.101 were enacted (1963) at a time when the grant or probation and the continuation of that status were within the complete discretion of the trial court. The grant of probation was purely a matter of grace and could be terminated as readily as it was granted. In fact, a defendant accepted probation subject to the condition that the court could revoke that status without further notice. State v. Collins, 225 Mo. 633, 125 S.W. 465, 466 (Mo.1910). Nor was it denial of due process to revoke a probation without notice or hearing. State v. Small, 386 S.W.2d 379, 382[8] (Mo.1965); State v. Brantley, 353 S.W.2d 793, 796 (Mo.1962). Further, revocation of probation was [and remains] not subject to appellate review. § 549.141.

Thus, at the time of these enactments the extension of probation aspect of § 549.071 and the revocation of probation with or without hearing provision of § 549.101 were acceptable procedures. Then came Morris-sey and Gagnon which colored these pro-eeedings with principles of due process. That decision prompted recognition by the Missouri Supreme Court that probation, once given, was a right which could not be taken away without due process, and the court fashioned a remedy by habeas corpus to review the legality of revocation proceedings. Green v. State, 494 S.W.2d 356, 357[2-4] (Mo. banc 1973). In this manner, § 549.141, which denies a conventional appeal from revocation of probation has been judicially modified to reflect the impact of Morrissey and Gagnon.

In Moore v. Stamps, 507 S.W.2d 939 (Mo.App.1974), the St. Louis District of the Missouri Court of Appeals undertook to formulate procedures for the revocation of probation to comport with the due process requirements of Morrissey and Gagnon. That court made parenthetical reference that the language of § 549.101 which allows revocation without hearing was not compatible with Gagnon. 507 S.W.2d at 948, n. 4. [The constitutionality of § 549.101 was questioned, but not decided, by the Missouri Supreme Court en banc in Green v. State, supra, l.c. 357[5]]. The effect of Moore v. Stamps, supra, and those numerous cases which have followed its rationale, is to judicially modify § 549.101 so that a court may not revoke probation without a hearing. These cases do not consider the right of a court on discretion to extend probation without comparable hearing and due process procedures.

The response of the principal opinion to the second point is based on the assumption that an extension of probation is something different from a revocation of probation. It may have been when the statutes were written and as they were written, but no longer. It is the interest of the parolee in his continued liberty which due process surrounds and protects. When probation is offered and accepted as an option to commitment [Morrissey v. Brewer, supra, 408 U.S. l.c. 482, 92 S.Ct. l.c. 2601]:

[t]he parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions ... We see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a “grievous loss” on the parolee.

The expectation of regaining this “unqualified liberty” after the conditions of probation have been met and the fixed period of probation has ended are of equally vital significance to the probationer. United States v. Strada, 503 F.2d 1081, 1083 (8th Cir. 1974). Thus, an order which extends probation without cause is as offensive as one which revokes probation without cause. That is to say, a court may no more extend a term of probation already fixed without notice, hearing and cause, then to revoke it altogether.

When these statutory terms are seen as equivalents, and not of different import in terms of due process requirements, §§ 549.-071.1 and 549.101.2 are understood to mean that only one increment in the probation term under the same judgment may be allowed, whether by extension or by a new probation, and that the total term of probation shall not exceed five years.

I would not apply this suggested rationale to these proceedings,- however, because the petitioner does not seek discharge on constitutional grounds. Further, at the time Judge Nangle summarily revoked, reinstated and extended probation [April, 1973], Gagnon [effective May 14, 1973] which applied the parole proceedings due process requirements of Morrissey to probation had not been decided nor given effect by an appellate court of this state.

I come to this position with awareness of the decision of this court in Ockel v. Riley, 541 S.W.2d 535 (Mo. banc 1976). That case posed the broad question [l.c. 541]: “whether the continuation or extension of probation constitutes such a grievous loss as to constitutionally require prior notice and hearing”. The answer of the court was more limited than the question.

Ockel had pleaded guilty to a felony and was placed on probation for a term of three years. Throughout that period of supervision, Ockel was heedless of the conditions of probation, was convicted of petty offenses, kept a gun, and was simply a chronic violat- or. About two months before the probation term was to have expired, he was arrested on a warrant which charged violation of probation conditions. He admitted the assault which was the subject of the warrant, and that proceeding was withdrawn. In the face of these infractions, some of which apparently there had not been time to evaluate, the trial court — within a month and a half of the expiration of the term — ordered probation extended for another two years. Thereafter, during the extended term, another violation warrant issued, but Ockel was continued on probation.

Ockel brought habeas corpus on the contention that he was entitled to unconditional discharge from custody because he had served the full three yéar term of probation without revocation, and that the two year extension for that term, without notice or hearing, was unlawful.

It was within this context that Ockel concluded [with basic reliance on Skipworth v. United States, 508 F.2d 598 (3rd Cir. 1975)] that neither notice nor hearing were required prior to an order to extend the term of probation. As in Skipworth —where charges still pended against the probationer when the court acted to extend probation about to expire in five days — and in Ockel — where the court acted within weeks of the expiration of the term — there was uncertainty that the court had sufficient reliable information on hand to revoke or discharge before the termination date then imminent. Ockel gives this rationale [l.c. 543]:

What is demonstrated by the facts of all of these cases is that, as a practical matter, the judge does not or may not receive the information as to the probationer’s conduct until shortly before the initial term of probation expires. The judge is then faced with the alternative of allowing the probation period to expire with consequential discharge of the probationer, or giving a quick hearing on revocation and consequent imprisonment, or extending the term of probation. The judge’s obligation is to act responsibly in the matter and to do so requires time and thought. Extending the term does not drastically change the status of the probationer but does provide the necessary time to give the matter due consideration.

This postulate I understand to fall within the dictum of the principal opinion — with which I agree — that when exigent circumstances compel, a court may by summary order preserve jurisdiction over a probationer which would otherwise be lost by expiration of the probation term.

In whatever terms Ockel must be understood, however, by its own rationale it has no application to the extension ordered by Judge Nangle six months before expiration, prompted neither by infraction, misconduct, nor by reason of impending termination. On its face the judicial act was arbitrary. A convict who accepts terms of probation understands that if those conditions are met uneventfully for the period imposed, he will then be a free man. Sanford v. King, 136 F.2d 106, 108[4, 5] (5th Cir. 1943). The right to unhindered movement, consort and occupation are the nurture of a free society. To extend probation for any significant period is to impair these rights and inflicts a grievous personal loss. Morrissey, supra, l.c. 482. To do so without legal cause is to break faith with the principles of due process.

I would insist, then, that except for the unusual circumstance when summary continuation of probation is necessary to allow time to determine whether there is cause for revocation — which a court in any event may do even without express authority of statute — the extension of probation under § 549.071.1 and the revocation and grant of a second probation under § 549.101.2 are equivalent in terms of due process, so that the grant of either under one judgment of conviction is all that our law allows.

For these reasons, I concur in the result of the principal opinion.

      . It will be recalled that the petitioner has been ordered to serve a total of eight years probation on the first degree robbery conviction: the initial three year term imposed by Judge Nan-gle on October 22, 1970, the two year extension by Judge Nangle on April 13, 1973, and the three year term of probation imposed by Judge Challis following the October 22, 1975, revocation of probation.

      . It is of interest that from 1957 to 1961 there was a Missouri enactment, § 549.254, RSMo 1959, which required that prior to arrest for violation of probation, notice of violation was to be served on the probationer, and after arrest, he was to be brought before the court without unnecessary delay for hearing which could be informal. This statute was repealed by Laws, 1961, p. 338.

      . Skipworth makes it clear, however, that an ex parte extension of probation for any significant period is prejudicial [l.c. 602[8]]:
      . . . [B]ecause of the potential for prejudice in such extensions, we are in agreement with the district court in Freeman [U. S. v. Freeman, D.C., 160 F.Supp. 532] [also relied on by Ockel ] that they are inadvisable. Accordingly, we will hereafter require district courts in this Circuit before extending probation to provide notice to the probationer of the proposed extension should he so desire, together with the assistance of counsel. [Latter emphasis added.]


author: FINCH, Presiding Judge.

text:
    REGAL-TINNEYS GROVE SPECIAL ROAD DISTRICT OF RAY COUNTY, Missouri, et al., Plaintiffs-Appellants, v. Monroe FIELDS et al., Defendants-Respondents.
    No. 60003.
    Supreme Court of Missouri, En Banc.
    July 11, 1977.

      Norman M. Rankin, Kansas City, for plaintiffs-appellants.
    David L. Busch, Richmond, for defendants-respondents.
   FINCH, Presiding Judge.

This is an appeal from an order dismissing plaintiffs’ petition for declaratory judgment on the basis that it failed to state facts sufficient to constitute a cause of action. An appeal was directed to the Missouri Court of Appeals, Kansas City District, but that court ordered the case transferred to this court for the reason that it involves construction of a revenue law of the state and that exclusive appellate jurisdiction is vested in the Supreme Court. Cited in support of that conclusion was State ex rel. Attorney General v. Adkins, 221 Mo. 112, 119 S.W. 1091 (1909), in which the court, in considering a question of jurisdiction under the constitutional proviso conferring jurisdiction on the Supreme Court in cases “involving * * * the construction of the revenue laws of this state” (presently Mo.Const. art. V, § 3), held “* * * that the term ‘revenue law’ covers and includes laws relating to the disbursement of the revenue and its preservation, as well as provisions relating to the assessment, levy, and collection of it; * *.” 119 S.W. at 1093. We conclude that we do have jurisdiction. We reverse and remand.

Plaintiffs are three special road districts located in Ray County, Missouri, organized under provisions of §§ 233.010 to 233.165. Defendants are the three judges of the County Court of Ray County and the other five special road districts in the county. Only the three county judges have filed pleadings. At times, they will be referred to herein as defendants.

The first amended petition, liberally construed, alleged the following:

(1) that each of the eight special road districts has exclusive control over county roads located within their district and are obligated to keep said roads in as good repair as the means at their command will permit;

(2) that the eight special road districts have exclusive control over approximately one-half of all Ray County roads;

(3) that the County Court of Ray County has exclusive control over and responsibility for the remaining one-half of the county roads;

(4) that the Ray County Court receives from the state, out of the county aid trust fund (CART), certain funds which under the provisions of § 231.441, Missouri Laws of 1973, must be used within the county solely for the construction, reconstruction, maintenance and repair of roads, bridges and highways as the county court shall direct;

(5) that § 231.441 requires that the county court formulate and file with the county recorder written regulations which establish rules and policies for use of such funds;

(6) that this statutory provision means that the county court must establish a plan for construction, repair and maintenance of county roads, including a method and policy for disbursement of CART funds and then for the use thereof;

(7) that the county court has established road specifications which govern the method and procedure which shall govern all work done in whole or in part with CART funds but those specifications fail to provide those things enumerated in (6) above, all of which are required by § 231.441;

(8) that a controversy exists between plaintiffs and the county court, plaintiffs contending that § 231.441 does require the county court to do those things enumerated aboye and that under said statute the special road districts have certain rights to CART funds which must be spelled out in the county court’s regulations but that the county court contends that the special road districts have no right to CART funds and that the road specifications filed by the county court with the recorder of deeds complies with the requirements of § 231.-441.

In response to the first amended petition, defendants filed a motion to dismiss for failure to state a cause of action. That squarely raised the question of whether under Rule 87.02, V.A.M.R., plaintiffs, as governmental entities which have exclusive control over certain portions of the county roads in Ray County and which both desire to apply for and receive (and from time to time do receive) CART funds for expenditure, pursuant to the requirements of § 231.441, on the county roads under their control, are entitled to a declaratory judgment determining the meaning of § 231.441 and whether, by filing with the county recorder the document entitled “Ray County Roads Specifications (1973) General Re-

quirements and Covenants” the defendants have satisfied the requirements of said statutory provision.

A declaratory judgment action provides an appropriate method of determining controversies concerning the construction of statutes and powers and duties of governmental agencies thereunder, provided the court is presented with a justiciable controversy, ripe for determination, brought by someone with standing by reason of having a legally protectable interest at stake, in a case wherein a judgment conclusive in character which settles the issues involved may be entered. City of Camdenton v. Sho-Me Power Corp., 361 Mo. 790, 237 S.W.2d 94 (1951); City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411 (1942). See also ABC Security Service, Inc. v. Miller, 514 S.W.2d 521 (Mo.1974). We must consider whether those requirements are met in this case.

Plaintiffs’ first amended petition presents an existing controversy between plaintiffs and defendants as to the meaning of § 231.441 and whether the road specifications prepared and filed by defendants comply with the statutory requirement of written regulations which state rules and policies for the use of such funds. Plaintiffs contend that such regulations should set out a plan for use of the funds which would specify priorities in use of CART funds in accomplishing a plan for construction, repair and maintenance of the county road system and that plaintiffs are entitled to and need to know that plan and those priorities. These will affect application for and allocation of funds and how plaintiffs spend money which is allocated to them by the county court. This is a real, not a hypothetical, controversy. If plaintiffs are correct in their interpretation of the statute, then the road specifications, although appropriate as a directive for methods of construction, do not establish an overall plan for construction, repair and maintenance of the county road system or a set of priorities to be followed in accomplishing the overall plan. In that event, it is appropriate and necessary that the court so state and direct that appropriate regulations be prepared and filed. If, on the other hand, what defendants have done is a sufficient compliance with § 231.441, then the court should resolve the existing controversy so that the parties can act on that basis. This dispute presents an actual justiciable controversy which is ripe for resolution.

Defendants argue that plaintiffs have no legally protectable interest which would entitle them to maintain this action. We conclude otherwise. Plaintiffs are obligated to expend CART funds as required by § 231.441 as well as in accordance with Mo.Const. art. IV, § 30(a), which provides for establishment of the CART fund and for what purposes those funds are to be expended. Regulations issued by defendants pursuant to § 231.441 directly affect plaintiffs in the performance of their responsibility for construction, repair and maintenance of county roads within their boundaries. Plaintiffs have a sufficient interest to entitle them to maintain this action. Furthermore, a judgment declaring the meaning of § 231.441 and what it requires in the way of regulations, including the sufficiency of what defendants have issued and filed, will settle the issues involved.

Finally, defendants argue that the trial court was correct in dismissing the amended petition because the county court has discretion in the case of the CART funds and there were no allegations in the petition of an abuse of discretion by the county court. We disagree. The petition is not drafted on the theory that plaintiffs are entitled to some specific percentage of CART funds or a greater percentage than they have received or that there has been an abuse of discretion in allocation of the funds. Rather, as previously noted, the controversy relates to whether § 231.441 requires the county court to promulgate regulations which spell out a policy which shall govern how the funds are allocated to accomplish an overall plan spelled out in the regulations, and what the procedure will be whereby the funds will be allocated. That controversy has not been resolved by the dismissal of the petition. The court has not declared the meaning of the statute and the respective obligations and rights thereunder.

We hold that the court erred in dismissing plaintiffs’ petition for failure to state a cause of action. Accordingly, the case is reversed and remanded for further proceedings.

All concur.

      . All statutory references are to RSMo 1969 unless otherwise indicated.

      . Rule 87.02(a), which is pertinent to this case, provides as follows:
      “(a) Persons Interested Under Deeds— Wills — Contracts—Statutes and the Like. Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.”
      The foregoing rule is identical with § 527.020.