author: MORGAN, Judge.

text:
    STATE ex inf. John C. DANFORTH, Attorney General, Appellant, v. The READER’S DIGEST ASSOCIATION, INC., Respondent.
    No. 58433.
    Supreme Court of Missouri, En Banc.
    Sept. 8, 1975.

      John C. Danforth, Atty. Gen., Harvey M. Tettlebaum, Asst. Atty. Gen., Jefferson City, for appellant.
    Joseph E. Stevens, Jr., William C. Hopkins, II, Kansas City, for respondent; La-throp, Koontz, Righter, Clagett, Parker & Norquist, Kansas City, William Barnabas McHenry, New York City, of counsel.
   MORGAN, Judge.

The Attorney General of Missouri filed, in the trial court, an information in the nature of quo warranto wherein it was alleged that The Reader’s Digest Association, Inc., was conducting a promotion for the sale of magazines and various items of merchandise in violation of the lottery laws and public policy of the state of Missouri — Article III, § 39(9) of the 1945 Missouri Constitution and §§ 563.430 and 563.440, RSMo 1969 — and therein prayed that respondent “be ousted and excluded from exercising all privileges and rights granted it as a foreign corporation transacting business in this state and . . . fined an amount equal to its gross receipts attributable to any advertising . . . using the Reader’s Digest Ninth Annual Sweepstakes.” Service of process was effected under § 506.500, RSMo 1969, commonly referred to as the long-arm statute. Respondent sought to remove the controversy to the U.S. District Court for the Western District of Missouri, but the cause was remanded as one not arising under federal law or the Constitution of the United States. (Civil Action No. 19262-2, Memorandum and Order by Judge Collinson.) Respondent then filed a motion to quash service of process premised on the trial court’s lack of jurisdiction over the ■person of respondent and for dismissal for lack of jurisdiction over the subject matter. After the filing of exhaustive suggestions and oral arguments by the parties, the trial court found that the (due process) jurisdictional requirements of the long-arm statute were satisfied, but the motion to dismiss was sustained for lack of jurisdiction over the subject matter on the theory that the state lottery laws conflict with Art. 1, § 8, Clause 7 (postal powers) of the U.S. Constitution and are unconstitutional as applied to users of the U.S. Mail because “respondent is subject only to the Federal Lottery Statutes, 18 U.S.C. § 1302, and regulations promulgated by the U.S. Postal Service thereunder.” The state has appealed from the final order of dismissal. Jurisdiction to resolve federal and state constitutional questions lies in this court. Art. V, § 3, 1945 Missouri Constitution.

In late 1970 and early 1971, respondent mailed or caused to be mailed into Missouri solicitations for magazine subscriptions and purchase orders for numerous items. Receipt of the same entitled the recipient to participate in respondent’s' “Ninth Annual $400,000. Sweepstakes.” Prior to the mailing, respondent sought and obtained from the Assistant General Counsel of the Mailability Division, U.S. Postal Department, an advisory ruling that use of the mails to distribute such solicitations and receive responses therefrom would not violate federal statutes prohibiting the use of the mails in the conduct of a lottery or gift enterprise. Counsel for the Mailability Division concluded that there was no violation because the necessary element of “consideration” was lacking although the elements of “chance” and “prize” were obviously present; and, thus declared that the department had “no standing to initiate action under federal laws.”

Article III, § 39(9) of this state’s constitution declares that “[t]he general assembly shall not have power . . . [t]o authorize lotteries or gift enterprises for any purpose, and shall enact laws to prohibit the sale of lottery or gift enterprise tickets, or tickets in any scheme in the nature of a lottery.” Sections 563.430 and 563.440, RSMo 1969, adopted in apparent compliance with the constitutional mandate, outlaw lotteries and the promotion thereof as felonious offenses and prescribe penalties for violations. The most recent and presently controlling interpretation of such provisions may be found in Mobil Oil Corporation v. Danforth, 455 S.W.2d 505 (Mo. banc 1970).

In the present posture of this case, however, we are not called on to decide whether or not there has been a substantive violation of the laws of this state. Since the appeal is from an “order of dismissal,” we assume that respondent’s promotional activity does constitute a proscribed lottery in the state of Missouri.

Thus, the underlying question is whether or not this state can enforce its lottery laws against respondent. For the answer to be in the affirmative, it must be found that the trial court had jurisdiction over both the “person” of respondent and the “subject matter” of the action. The parties, while taking opposing positions on each of the issues, have in both suggestions of record and formal briefs reviewed extensively historical precedents and legal writings which have been helpful; but, due to the number thereof, it would be inappropriate in an opinion to seek to establish or detail the possible relevance of each — most all of which deal with “preemption” under the “commerce clause” of the U.S. Constitution.

The first issue is whether this state can constitutionally assert in personam jurisdiction over respondent in view of its contacts within the state, which allegedly have been made without the fixed presence of offices or officers in Missouri. This court established sufficient standards in State ex rel. Deere and Company v. Pinnell, 454 S.W.2d 389 (banc 1970), to resolve the issue. Therein it was held, l.c. 892: “In concluding our effort to determine the legislative intent of the General Assembly of Missouri, we are convinced that the ultimate objective was to extend the jurisdiction of the courts of this state over nonresident defendants to that extent permissible under the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States.

“[1,2] What precise federal constitutional limitations there presently may be on the application of this jurisdictional concept rests in the interpretation placed thereon by the Supreme Court of the United States. Since Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, this question has been the subject of innumerable judicial decisions and exhaustive academic writings, but ‘ * * just where this line of limitation falls has been the subject of prolific controversy, particularly with respect to foreign corporations.’ McGee v. International Life Insurance Co., 355 U.S. 220, 222, 78 S.Ct. 199, 200, 2 L.Ed.2d 223. In McGee (loc. cit. 222, 78 S.Ct. 200) the court recognized that, ‘Looking back over this long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents.’ More specifically, ‘ * * * due process requires only that in order to subject a defendant to a judgment in per-sonam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. See Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283.”

Later consideration of the question may be found in State ex rel. Apco Oil Corp. v. Turpin, 490 S.W.2d 400 (Mo.App.1973). See also American Hoechst Corp. v. Bandy Laboratories, Inc., 332 F.Supp. 241 (W.D.Mo.1970); Fulton v. Chicago, Rock Island and Pacific Railroad Co., 481 F.2d 326 (8th Cir. 1973), cert. denied, 414 U.S. 1040, 94 S.Ct. 540, 38 L.Ed.2d 330 (1973) and 27 A.L,R.3d 397.

The trial court ruled that “[t]he activity of the respondent of which complaint is made in this action establishes sufficient minimum contact with the State of Missouri to satisfy the jurisdictional requirements of § 506.500, RSMo 1969,” which reads, in part: “Any corporation, who does any of the acts enumerated in this section, thereby submits such . . corporation ... to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts: The transaction of any business within this state; The making of any contract within this state; * * * ” Related sections detail the manner in which service of process must be made.

We think it sufficient to state that we believe the promotional activity engaged in by respondent in Missouri to sell magazines and various items of merchandise to thousands of persons constitutes “the transaction of any business” within the meaning of the statute. This is not a case, involving minimal contacts on a sporadic basis but a continuous business scheme involving potential obligations of citizens of this state. As the court said in Reader's Digest Ass’n v. State ex rel. Conner, 251 So.2d 552, at 556 (Fla.App., First Dist. 1971): “We are not concerned here . with ‘the mere mailing of magazines into Florida’, nor are we concerned with a single act on the part of defendant. We are concerned with Reader’s Digest invading the offices and homes of more than 10,000 Florida citizens and, at this stage of the pleadings, urging them to participate in an alleged lottery and purchase various goods and merchandise, such activities allegedly being contrary to the criminal and civil laws of Florida.”

The factual situation presented falls within the scope of acceptable due process concepts as not only enunciated by this court but, more importantly, by the Supreme Court of the United States. The issue is resolved against respondent.

The second issue involves “subject matter” jurisdiction. It can not be disputed but that the lottery laws of Missouri prohibit lotteries of all kinds and the advertisement thereof. Although not expressly referred to, circulation by mail falls within the generality and universal reach of the state’s prohibitions against such activity. Respondent concedes as much, but then submits that the federal government has occupied the field of mailability of lottery material and that regulation thereof has been preempted to the exclusion of state action. The contention is bottomed on reasoning which can be outlined fairly.

“Congress, under its power to establish post offices and post roads, has the right, within constitutional limitations, to determine what may be carried in the mails, and what may be excluded therefrom.” 62 Am. Jur.2d 22, Post Office § 82, fn. 20, citing Public Clearing House v. Coyne, 194 U.S. 497, 24 S.Ct. 789, 48 L.Ed. 1092 (1904); Re Rapier, 143 U.S. 110, 12 S.Ct. 374, 36 L.Ed. 93 (1892); Ex Parte Jackson, 96 U.S. 727,24 L.Ed. 877 (1877); McCrossen v. United States, 339 F.2d 810 (10th Cir. 1965), and 11 A.L.R.3d 1268.

18 U.S.C. § 1302, the Federal Lottery Law, prohibits lotteries of all kinds advertised by way of material deposited in, sent or delivered by mail, and penalizes violators by a fine of not more than $1000. or imprisonment for not more than two years, or both, and imprisonment not more than five years for any subsequent offense. 39 U.S.C. § 3001(a) provides that matter, the deposit of which in the mails is punishable under § 1302, is nonmailable. The Postal Service has power and is directed by 39 U.S.C. § 401 to prescribe rides and regulations to accomplish the objectives of Title 39. Such regulations and the rulings properly promulgated thereunder are controlling and have the force of law. Ex parte Willman, 277 F. 819 (S.D.Ohio 1921); Spiegel, May, Stern Co. v. Waterman, 131 Me. 342, 163 A. 105 (1932). Other cases involving the Treasury Department and other departments of the federal government hold that federal administrative rulings insofar as they are consistent with statutory powers delegated to department heads, are “Laws of the United States” having the force and effect of law, and by virtue of the Supremacy Clause of the Constitution of the United States become the supreme law of the land. Yiatchos v. Yiatchos, 376 U.S. 306, 84 S.Ct. 742, 11 L.Ed.2d 724 (1964); Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962); Hood & Sons v. Du Mond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865 (1949); Campbell v. Hussey 368 U.S. 297, 82 S.Ct. 327, 7 L.Ed.2d 299 (1961); Catholic Med. Center of Brooklyn & Queens, Inc. v. Rockefeller, 305 F.Supp. 1268 (E.D.N.Y.1969); Marino v. Town of Ramapo, 68 Misc.2d 44, 326 N.Y.S.2d 162, 180[21] (1971); Ervin v. Conn., 225 N.C. 267, 34 S.E.2d 402 (1945); Harvey v. Rackliffe, 141 Me. 169, 41 A.2d 455, 161 A.L.R. 296 (1945); In re Cochran’s Estate, 398 Pa. 506, 159 A.2d 514 (1960); Parkinson v. Wood, 320 Mich. 143, 30 N.W.2d 813 (1948). Any state law in conflict with such federal regulations must yield to the controlling federal regulations. Free v. Bland, Yiatchos v. Yiatchos, and Marino v. Town of Ramapo, supra; Hoeppner v. Slagle, 141 Ind.App. 622, 231 N.E.2d 51 (1967); In re Estate of Freedland, 38 Mich.App. 592, 197 N.W.2d 143, 145 (1972). “Since the authority of the United States is supreme on all subjects which the Constitution has committed to it * * * an exercise of federal power generally prevails over state legislation or action, and, if the laws or public policy of the states come into conflict with the federal statutes, or with administrative regulations properly adopted under federal law, the state law must yield.” 81 C.J.S. States § 7aa, pp. 879-881. From all of which, the respondent draws the conclusion heretofore noted.

The Postal Service has participated in this litigation and we quote a portion of its “Memorandum” filed in the trial court, to-wit: “. . . the Postal Service takes no position concerning the merits of this action; the authority of the State of Missouri to enact legislation defining and regulating lotteries and gift enterprises; or, the interpretation of those statutes by the parties herein. Our exclusive interest in this proceeding is the avoidance of potential interference with the United States mails * * The interests of the Postal Service at the present stage of the proceedings are in the continued maintenance of a national postal system, free from State regulation or control. These interests would be endangered, should this proceeding involve any attempt by the State of Missouri to determine what may lawfully be carried in and delivered by the United States Postal Service within the State of Missouri or to interfere with the movement of the United States mail within the State of Missouri. Such action would, we suggest, violate the constitution and laws of the United States * * * In our opinion, 39 U.S.C. §§ 3001-3010 constitute a scheme of Federal regulation over the content of the United States mail which precludes state regulation of mailability * * [W]e believe that the authority to determine the mailability of matter — including matter relating to lotteries, sweepstakes, and gift enterprises — has been pre-empted by the United States.”

The state does not challenge the resulting legal consequences if the federal government, in fact, has preempted control over the existing factual situation presented, but it does submit that “preemption” as such is not involved. It is argued that “[e]very decided case wherein a State or Federal Court has found preemption under the ‘Postal Powers Clause’ of the United States Constitution involved the direct, physical interference by a state authority with the personnel or facilities of the United States Postal Service.” Representative cases cited are Johnson v. Maryland, 254 U.S. 51, 41 S.Ct. 16, 65 L.Ed. 126 (1920), and Ex parte Willman, supra, buttressed by Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and its companion case of Alberts v. California, both of which were decided in one opinion. Alberts conducted a mail-order business from Los Angeles, California. He was convicted under state law for keeping obscene literature for sale and for publishing an obscene advertisement of the same. Alberts’ contention and the court’s disposition of it appear in the following excerpt from the case, 354 U.S. at 493-494, 77 S.Ct. at 1314: “Alberts argues that because his was a mail-order business, the California statute is repugnant to Art. I, § 8, cl. 7, under which the Congress allegedly pre-empted the regulatory field by enacting the federal obscenity statute punishing the mailing or advertising by mail of obscene material. The federal statute deals only with actual mailing; it does not eliminate the power of the state to punish ‘keeping for sale’ or ‘advertising’ obscene material. The state statute in no way imposes a burden or interferes with the federal postal functions. . . . The decided cases which indicate the limits of state regulatory power in relation to the federal mail service involve situations where state regulation involved a direct, physical interference with federal activities under the postal power or some direct, immediate burden on the performance of the postal functions. . . .” The federal statute in issue in the Roth case, 18 U.S.C. § 1461, provided for the imprisonment and fining of anyone who “knowingly deposits for mailing or delivery [obscene material] . or knowingly takes the same from the mails for the purpose of circulating or disposing thereof.” It is submitted by the state that 18 U.S.C. § 1302 provides for the punishment of one who “knowingly deposits in the mail, or sends or delivers by mail” lottery material; and, according to the rationale of the Roth case, it deals only with actual mailing and would not eliminate the power of the state to punish a party for conducting or advertising a lottery or soliciting participation in a lottery scheme. It would appear that the Roth case is the most recent U. S. Supreme Court pronouncement on the question of federal preemption under the postal powers clause of the Constitution of the United States.

In light of the arguments herein noted, we seek to resolve the issue. In this task, we have the guidance of a nearly identical case involving the respondent — State of Washington v. Reader’s Digest Association, Inc., 81 Wash.2d 259, 501 P.2d 290 (banc 1972), appeal dismissed, 411 U.S. 945, 93 S.Ct. 1927, 36 L.Ed.2d 406 (1973). In that case the Attorney General of Washington brought suit against respondent seeking a declaratory judgment that the latter’s sweepstakes violated the state’s Consumer Protection Act, an injunction against conducting or advertising the sweepstakes in Washington or accepting sweepstakes entries from that state and an order directing Reader’s Digest to pay a civil penalty for each advertisement of the sweepstakes disseminated after a certain date. In that case, as here, respondent had “no agents, employees, offices or other property within [the] jurisdiction. Its Sweepstakes promotion is conducted through the mails.” 501 P.2d at 302. Respondent filed a pre-trial motion to dismiss on the ground of lack of subject-matter jurisdiction which was rejected. At the end of the trial, however, the court did dismiss the complaint and the state appealed. Respondent cross-appealed the denial of its pre-trial motion to dismiss asserting that the field which the state was seeking to regulate had been preempted by the U. S. Postal Department. The Supreme Court of Washington held that the sweepstakes in issue was a lottery and therefore per se an unfair trade practice and the court disposed of the preemption contention as follows: “In its cross-appeal respondent argues that federal statutory control over lotteries by mail pre-empts the regulation of mail order lotteries by states. This contention is without merit. While it is true the state is without power to regulate the mail, it is not powerless to prevent respondent from using unfair trade practices within its borders. Roth v. United States, 354 U.S. 476, 493-494, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The state cannot enjoin the mails, but it can enjoin respondent from conducting the Sweepstakes within its borders, subjecting respondent to the penalties of the Consumer Protection Act for refusal to comply.” 501 P.2d at 303. As regards the U. S. Supreme Court’s disposition of the case, the entry in the U. S. Reports reads: “Appeal . . . dismissed for want of substantial federal question.” 411 U.S. 945, 93 S.Ct. 1927, 36 L.Ed.2d 406 (1973).

Respondent seeks to distinguish the Washington case, which obviously involved the identical activity herein challenged, for the reason there was no “prior approval of mailability” by the postal department — and, thus, the reported opinion does not reflect a' direct conflict between the exercise of federal and state power. We do not believe the case is distinguishable. As is conceded by the state, a determination of “mailability” under existing law of long standing is solely for the postal department. It alone has the power to make such a determination. However, the fundamental issue is not one of “mailability” but one of “preemption.” If indeed the federal government has preempted the field of “regulating lotteries by mail,” then it would make no difference whether the postal department had or had not issued a prior mailability certificate because a state could not move into the field in any event.

Analogous in principle only is the holding of the Wisconsin Supreme Court in Ministers Life and Casualty Union v. Haase, 30 Wis.2d 339, 141 N.W.2d 287 (1966), a case which decided the applicability of a portion of Wisconsin’s insurance law to out-of-state mail-order insurance companies whose contact with Wisconsin was through the U. S. Mails. The plaintiff insurance company, which had no office, officer, bank account or real estate in Wisconsin, brought a declaratory judgment action contending that the state had no jurisdiction to tax or regulate its mail-order insurance business because the state statute authorizing the same violated the postal clause of the U. S. Constitution (and four other clauses as well). The Wisconsin Supreme Court rejected that contention as follows: “Ministers’ final attack on the statute as a violation of the postal clause, sec. 8, art. 1, U.S.Const., is without merit. The Wisconsin section does not interfere with the use of the mail, does not prohibit Ministers from using the mail and more importantly does not interfere with congress’ exclusive power to determine what shall be carried and what shall be excluded in the mails. The postal clause is not talismanic and does not immunize Ministers from regulation.” 141 N.W.2d at 297.

The two cases, last noted, would tend to sustain the state’s theory, i. e., that regulation of one who uses the mail is not the same as regulation of the mail. Although, we believe such a concise and abbreviated approach has merit, it must be evaluated in light of the most relevant law as declared by the Supreme Court of the United States, which, in Goldstein v. California, 412 U.S. 546, at 561, 93 S.Ct. 2303, at 2312, 37 L.Ed.2d 163, said: “We must proceed to determine whether the challenged state statute is void under the Supremacy Clause. No single formula can capture the complexities of this determination; the conflicts which may develop between state and federal action are as varied as the fields to which congressional action may apply.” Resolution of such potential conflicts may be made under the guidelines set out in Rice v. Santa Fe Elevator, 331 U.S. 218 at 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947), to-wit: “The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. Pennsylvania R. Co. v. Public Service Comm’n, 250 U.S. 566, 569, 40 S.Ct. 36, 37, 64 L.Ed. 1142; Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 62 S.Ct. 491, 86 L.Ed. 754. Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581. Likewise, the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose. Southern R. Co. v. Railroad Commission, 236 U.S. 439, 35 S.Ct. 304, 59 L.Ed. 661; Charleston v. W. C. R. Co. v. Varnville Co., 237 U.S. 597, 35 S.Ct. 715, 59 L.Ed. 1137; New York Central R. Co. v. Winfield, 244 U.S. 147, 37 S.Ct. 546, 61 L.Ed. 1045; Napier v. Atlantic Coast Line R. Co., supra [272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432], Or the state policy may produce a result inconsistent with the objective of the federal statute. Hill v. Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782.”

In this ease, the state seeks relief which actually would only require respondent alone to delete from its mailing lists those recipients of the alleged lottery material who reside in Missouri. Such a task should not be difficult in this age of computers. What effect, if any, would the granting of such relief in aid of the enforcement of the criminal laws of this state have upon the postal department?

First, it is obvious that there would be no “. . . direct, physical interference with federal activities under the postal power or some direct, immediate burden on the performance of the postal functions .” (Roth, case, supra.) The postal service would not be affected in its operations; there would be no responsibility on its behalf to screen mail addressed to Missourians; in no sense would the service be an enforcement agent of the lottery laws of Missouri; and granting of the relief sought would not be an attempt to decide what can or cannot be accepted and delivered as mail. Only the respondent would be told that it cannot conduct its lottery (if, in fact, it is found to be a lottery) in Missouri or advertise it or solicit participation in it from residents of Missouri. Respondent would not be penalized for using the mails but for conducting an enterprise which is repugnant to the laws and public policy of this state.

Second, it must be determined whether or not granting the relief sought would have a proscribed effect upon the accomplishment of the purposes and objectives of the federal power in regulating the mails. The problem thus becomes one of resolving the significance of the issuance of a “certificate of mailability.” Facially, it evidences a declaration that the material for mailing is not violative of the federal lottery laws and that the postal department will accept and deliver the same. Does it mean that the sender thereof, respondent in this instance, is thereby immunized from a state’s action to enforce its own lottery laws? Respondent has not cited an authority so holding, and we are reluctant to declare that the postal service is or seeks to be in the business of promoting and encouraging violations of state laws. Nothing filed by way of an advisory “brief” by the postal department in this cause even suggests as much. Compliance with federal law is all that is indicated by the mailability permits.

Third, and lastly, the question arises as to whether or not the enactment of the federal lottery laws evidenced an intent and purpose to pre-empt state action to enforce lottery laws. We think not. If such a result would have been the federal purpose, the law enacted would have indicated as much. We reject the idea that the power delegated to the postal department to determine “mailability” encompassed, in what is apparently an ex parte approach, the objective of effectively repealing the lottery laws, if any, of the fifty states. We recognize the same for what it says, i. e., such material is not violative of federal lottery laws. The effectiveness of that ruling will not be frustrated by the requested state action.

We do not believe that the “federal interest [in lotteries] is so dominant that the federal system will be assumed to preclude enforcement of state laws” nor that “state policy may produce a result inconsistent with the objective of the federal statute.” Rice case, supra.

The judgment entered is reversed and the cause is remanded for further proceedings consistent with this opinion.

All concur.

      . The conclusion noted was premised, in part, on the following portion of the judgment entry: . .39 USC Sec. 3001-3010 constitute a scheme of Federal regulations over the content of the U.S. Mail which precludes state regulation of mailability. In the circumstances present in this case, it is a physical impossibility for respondent to comply with both federal and state regulation of lotteries in the use of the U.S. Mail * * * In enacting 18 USC Sec. 1302, dealing with lotteries and in empowering the Postal Service and the Department of Justice to regulate the mails and enforce the Federal Lottery laws, Congress expressly dealt with the subject of lotteries in the mail and thereby exclusively preempted the field of regulating the mailing of lotteries and lottery material * * * Article III, Sec. 39(9) of the Missouri Constitution of 1945 and Secs. 563.430 and 563.440 RSMo as applied to respondent under the circumstances of this case are unconstitutional under Art. I, Sec. 8, Clause 7 of the Constitution of the United States.”

      . The first mailing was an announcement that a named corporation had just completed drawing the winning numbers for the new sweepstakes. The second mailing was a booklet listing the recipient’s “Six Lucky Numbers” and describing the prizes to be awarded. An “official reply envelope” was also included. The instructions advised the recipient that by returning the booklet in the official reply envelope he had a chance to win one of the described prizes. Although it was suggested that there was no record of the number of recipients living in Missouri, the record would indicate that there were thousands. Substantial prizes were offered in the “sweepstakes contest,” including but not limited to $2,000. a month for a year or $100. a month for life, $25,000. in cash, prizes worth $25,000., fifty new automobiles, seventy-five television sets, four hundred stereo 8-tape players, five hundred col- or camera outfits and a large number of steak knife sets. Unclaimed prizes would be awarded by a supplemental drawing limited to sweepstakes’ numbers previously returned. Reply forms provided the opportunity to forward a magazine subscription or purchase certain merchandise. There is a factual dispute between the parties as to whether or not certain reply forms were designed to require a recipient to reject affirmatively a subscription or order while returning the same for the chance of being a winner.

      . For some hoped-for simplicity in reading, we do note at this point that respondent counters with the argument that the Supreme Court of the United States has looked also to the effect of state action upon the accomplishment of the purposes and objectives underlying the federal power and that actual physical interference need not be present. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947), is cited in this connection as are Sperry v. Florida, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963), and New York Broadcasters Ass’n v. United States, 414 F.2d 990, 997 (2nd Cir. 1969).


source: Caselaw Access Project

author: DONNELLY, Judge.

license: Public Domain

text:
    JOHN DEERE COMPANY, Respondent, v. Iva HENSLEY, Administrator, Estate of Henry C. Hensley, Deceased, Appellant.
    No. 58970.
    Supreme Court of Missouri, En Banc.
    Sept. 8, 1975.

      Sam D. Parker, Robert D. Youle, Gary S. Dyer, Kansas City, for respondent John Deere Co.; Lathrop, Koontz, Righter, Cla-gett, Parker & Norquist, Kansas City, of counsel.
    John C. Milholland, A. J. Anderson, Har-risonville, for appellant, Iva Hensley, Ad-ministratrix.
   DONNELLY, Judge.

This case arises from a claim filed by John Deere Company against the Estate of Henry C. Hensley, deceased, in the Probate Court of Cass County. The claim was disallowed in the Probate Court. An appeal was taken to the Circuit Court of Cass County where the claim was allowed. An appeal was then taken to the Kansas City District of the Court of Appeals where the judgment of the Circuit Court was affirmed. The case was then transferred to this Court on the certification of a dissenting judge (Mo.Const. Art. Y, § 10), and will be determined here the same as an original appeal.

In the Fall of 1967, Henry C. Hensley purchased farm machinery from two dealers in John Deere implements: Schrock and Yoder Imp. Co., Inc., Harrisonville, Missouri, and Jackson County Implement Co., Lee’s Summit, Missouri. On November 13, 1967, he executed a note to Schrock and Yoder Imp. Co. in the time balance amount of $16,109.80. On December 20, 1967, he executed a note to Jackson County Implement Co. in the time balance amount of $15,947.76.

On the back of the Purchaser’s Copy of each note appeared a “Notice of Proposed Group Life Insurance for Eligible Debtors,” which read in part as follows:

“If a debtor whose signature is on the Note on the face hereof qualifies as an Eligible Debtor under the provision below, and if John Deere Company becomes the holder of the Note, life insurance protection under Group Creditors Life Insurance Policy No. GL-65001 issued by Rock River Life Insurance Company, Mo-line, Illinois, will be provided in connection with the indebtedness under said Note on the life of such Eligible Debtor. Such insurance will become effective as of the date of said Note, and a certificate describing the insurance will be furnished within thirty days. The insurance will (in absence of default in installment payments) remain in force, subject to the terms of the group policy, until discharge of the indebtedness. The amount of insurance will be the amount necessary to discharge the indebtedness under the Note not exceeding $10,000 with respect to one or more indebtednesses as to which the Eligible Debtor is insured under the group policy and/or Prudential Group Creditors Life Policy GL-41400. Any insurance proceeds payable will be applied toward discharge of the indebtedness. No payment will be collected from or charged to the Eligible Debtor for the insurance.”

The face of the notes provided that such “notices of insurance” would become applicable “only if John Deere Company becomes holder of instrument.” Each note was assigned to John Deere Company. A policy of insurance, in the amount of $10,-000.00, was issued by Rock River Life Insurance Company (a company owned by Deere & Company) on the life of Henry C. Hensley.

Henry C. Hensley died on May 16, 1968. All of the farm machinery covered by the notes was inventoried and sold by his Estate. On June 1, 1968, the sum of $13,-281.75 was due on the Schrock and Yoder note, and the sum of $12,625.00 was due on the Jackson County Implement note. The Estate, contending it was entitled to a $10,-000.00 credit from insurance proceeds on each note (a total credit of $20,000.00), paid John Deere Company $3,281.75 on the Schrock and Yoder note, and $2,625.00 on the Jackson County Implement note. John Deere Company contends the Estate is entitled to a total credit from insurance proceeds of only $10,000.00; has credited the Schrock and Yoder note in the amount of $10,000.00; and claims $10,000.00 is owed John Deere Company by the Estate on the Jackson County Implement note.

The determinative question in the case is the legal effect of the sentence: “The amount of insurance will be the amount necessary to discharge the indebtedness under the Note not exceeding $10,-000 with respect to one or more indebted-nesses as to which the Eligible Debtor is insured under the group policy * * (Emphasis ours.)

The trial court was of the opinion that the above sentence “is applicable to and refers to both the Schrock & Yoder agreement and the Jackson County Implement Company agreement,” and declared that no additional credit of $10,000.00 is due. We agree.

■The provision for insurance, which appeared on the back of the notes, became viable upon assignment of the notes to John Deere Company. The “one or more indebt-ednesses” language referred to “one or more indebtednesses” to John Deere Company. It did not refer to “one or more indebtednesses” to Schrock & Yoder Implement Company. It did not refer to “one or more indebtednesses” to Jackson County Implement Company.

The rule is well-established in Missouri that “if a contract is fairly open to two interpretations that construction must be adopted which is against him who prepared it and favor him who merely signed it. * * * An essential part of this rule is that the contract must be reasonably and fairly susceptible to different constructions before it can be held to be ambiguous. * * The rule therefore is only one of a number of subsidiary aids and has no place as a rule of construction when the contract is plain. City of St. Louis v. St. Louis & S. F. R. Co., 228 Mo. 712, loc. cit. 736, 129 S.W. 691.” Engel v. Cord Moving and Storage Company, 313 S.W.2d 173, 176 (Mo.App.1958).

We may not create an ambiguity where none exists. The language used here indicates a covenant to insure the life of Henry C. Hensley in an amount not exceeding $10,000.00 with respect to one or more in-debtednesses to John Deere Company. We consider the language clear and unambiguous.

The judgment of the Circuit Court of Cass County is affirmed, and the cause remanded for entry of judgment, including interest, and remand to the Probate Court of Cass County for allowance of the claim.

All concur.


author: FINCH, Judge. BARDGETT, Judge

text:
    STATE of Missouri ex rel. Michael D. GARRETT, Director, The Department of Public Safety and former Supervisor of Liquor Control for the State of Missouri and Robert G. Stewart, acting Supervisor of the Division of Liquor Control of the State of Missouri, Relators, v. The Honorable Alvin C. RANDALL, Judge, Circuit Court of Missouri, Sixteenth Judicial Circuit, Division No. 4, Kansas City, Missouri, Respondent.
    No. 58864.
    Supreme Court of Missouri, En Banc.
    Sept. 8, 1975.

      John C. Danforth, Atty. Gen., Daniel P. Card, II, Asst. Atty. Gen., Jefferson City, for relators.
    Law Offices, Anthony J. Romano, Professional Corp., Kansas City, for respondent.
   FINCH, Judge.

This original proceeding in prohibition seeks to limit the actions of respondent judge in his consideration of a petition for judicial review of a decision of the supervisor of liquor control denying renewal of a license for sale of liquor by the drink at retail. It involves the issue of whether in conducting that review respondent lacks jurisdiction to hear and consider evidence other than the record certified to the circuit court by the supervisor in accordance with § 311.700(2). We conclude that he does lack such jurisdiction and we make our rule in prohibition absolute.

On June 25, 1974, the supervisor (then relator Garrett), without conducting an evi-dentiary hearing, notified applicant, Jasper’s Italian Restaurant, Inc., by written communication that he would not renew its liquor license for sale of liquor by the drink for the year beginning July 1, 1974. The supervisor’s decision recited that in reaching this conclusion, he had considered the transcript of a case in the United States District Court for the Western District of Missouri wherein Jasper Mirabile (managing officer and sole stockholder of the corporation) had been charged and convicted in April 1974 of using the mails to defraud the state of Missouri of sales tax. The supervisor’s ruling discussed the evidence in that case, including that of Mirabile himself, and stated that the transcript disclosed that beginning in the mid-1950s, not only did Mira-bile know that accountants employed to file the company’s tax returns were underre-porting restaurant sales, but during much of that time Mirabile actually furnished the accountants with the erroneous figures which they were to report. Such figures generally represented only one-third to one-half of actual sales of the restaurant but in some periods were even less than one-third of sales. The supervisor pointed out in his ruling that the transcript disclosed that Mirabile admitted that he knew he was cheating the state of Missouri by withholding thousands of dollars due and that he continued even after the accountants told him on several occasions that he should discontinue the practice. The letter to applicant then pointed out that § 311.060 provides that no corporation shall be qualified for a liquor license unless its managing officer and officers, directors and stockholders holding 10 per cent or more of the stock of the corporation be persons of good moral character. On the basis of the evidence disclosed by the transcript in the federal prosecution, the supervisor concluded that Jasper Mirabile had failed to maintain the good moral character required by § 311.060 and that for this reason the license should be refused.

Thereafter, on July 8,1974, the applicant corporation filed with the supervisor pursuant to § 311.700(2) its application for review of his ruling, and on July 10, 1974, relator Stewart (he meanwhile had succeeded Garrett) transmitted to the clerk of the Circuit Court for the Sixteenth Judicial Circuit a certified full and complete transcript of all records and other documents considered in the supervisor’s refusal to renew applicant’s liquor license, including the letter conveying his decision.

At a hearing of applicant’s application for review on September 29, 1974, respondent, over relator’s objection, heard oral testimony from Jasper Mirabile and then subpoenaed relator Garrett to appear and testify at a subsequent date. Relators filed a motion to quash the subpoena, which was overruled. Their petition for writ of prohibition herein followed.

Does respondent lack jurisdiction to hear and consider evidence other than the record on appeal certified by the Supervisor?

Sec. 311.700(2), the applicable statutory provision, provides as follows:

“Any party to the proceedings who is aggrieved by any final decision, finding, rule or order of the supervisor may file with the supervisor of liquor control his application for a review within fifteen days after notice of such decision shall have been mailed to said party. Within ten days after receipt of such application for review, the supervisor shall transmit to the circuit court of the county wherein the party aggrieved resides, a certified copy of the entire record of the proceedings under review, including a transcript of the evidence heard in cases in which a hearing is required by law. The filing of such application for review shall not stay enforcement of the supervisor’s decision. Such action shall be given precedence over all other civil cases and shall be heard by the court as soon as possible after the filing thereof, except that they shall not be heard ahead of cases arising under the workmen’s compensation and unemployment compensation laws of this state. The review shall be conducted by the court without a jury. The reviewing court may affirm the decision of the supervisor or may reverse or modify it when such decision is not authorized by law and, in cases in which a hearing is required by law, when such decision is not supported by competent substantial evidence on the whole record. The supervisor or any other party to the proceedings may secure a review of the final judgment of the circuit court by appeal in the manner and form provided by law for appeals from the circuit court in civil cases.” (Emphasis supplied.)

The foregoing statute has been held to call for the circuit court to review the action of the supervisor on the basis of the certified record of the proceedings before the supervisor. This court so stated in Pinzino v. Supervisor of Liquor Control, 334 S.W.2d 20 (Mo.1960), wherein, without holding an evidentiary hearing, the supervisor, acting under § 312.120, refused to renew for a year ending June 30,1960, a 3.2% beer license which Mrs. Pinzino had obtained originally in 1951 and which had been renewed each year thereafter until this renewal application was rejected. In so ruling, this court, after holding that an eviden-tiary hearing by the supervisor was not required under the statute when issuance or renewal of a license is involved, said, 334 S.W.2d at 26:

“It seems apparent, therefore, that inasmuch as no hearing was required by law prior to the supervisor’s refusal to issue the renewal license, the circuit court’s only province on review was to determine whether the supervisor’s final decision was ‘authorized by law,’ that is, to determine whether the exercise of the supervisor’s sole discretion was in accord with statutory authority, whether it was in violation of any constitutional provision, whether the decision reached was arbitrary or capricious, or unreasonable and thus an abuse of discretion.”

The court then concluded, 334 S.W.2d at 28:

“ * * * [I]t seems apparent that where, as we have held was here the case, the province of the circuit court on review was only to determine whether the sole discretion vested in the supervisor, who was authorized to act without a hearing, was lawfully exercised by him, the circuit court properly could not hear evidence.”

This conclusion as to the record to be considered by the circuit court in reviewing (pursuant to § 311.700) the action of the supervisor is confirmed by the opinion of this court in State ex rel. 807 Inc. v. Saitz, 425 S.W.2d 96 (Mo.1968). That case dealt with review of the revocation of a license, and pursuant to the applicable statute (§ 312.370), there had been notice and a hearing before the supervisor at which testimony was heard. The circuit court, on the basis of the record certified to it by the supervisor, affirmed the revocation of the license. Then, without notice or a hearing, the court set aside its judgment (but not the submission) and entered a new judgment which likewise affirmed the revocation. Applicant on appeal complained that the circuit court’s action deprived him of due process. In denying this contention, this court pointed out that the applicant was able to file a motion for new trial and to perfect the appeal and that it was not entitled to any additional hearing in the circuit court, saying, 425 S.W.2d at 101:

“ * * * There was no additional hearing to be held inasmuch as the only authorized submission was of the transcript previously submitted January 24, 1967, and appellant was enabled to file motion for new trial and, ultimately, this appeal.”

Thus, this court in 807 Inc. again recognized that review under § 311.700 is on the transcript certified to the circuit court by the supervisor and that said court is not to hear additional testimony for the purpose of supplementing the record received from the supervisor. We reaffirm that ruling.

On the basis of the record certified to the circuit court by the supervisor, the circuit court is to perform the review contemplated by § 311.700(2). That review was described in Pinzino v. Supervisor of Liquor Control, 334 S.W.2d at 26-27, as follows:

« ⅜ * * Here, as we have noted, the law required no hearing but vested in the supervisor the sole discretion whether to issue or refuse to issue the license. Under those circumstances, as we view it, the record furnished by the supervisor needed only to disclose that the information upon which he exercised his discretion was of such a nature that he could reasonably act thereon or, expressed differently, the record needed only to show that the supervisor acted reasonably in exercising his sole discretion and thus did not act arbitrarily or capriciously, or unreasonably and in abuse of his sole discretion.”

Is the Missouri Liquor Control Law unconstitutional on the basis that it denies due process as guaranteed by the Fourteenth Amendment to the U. S. Constitution and Art. I, § 10 of the Missouri Constitution?

As previously noted, this court in Pinzino held that the supervisor of liquor control is 'not required by statute to conduct an evidentiary hearing as a prerequisite to ruling on applications for liquor licenses, whether of original issue or as renewals. The assertion that this deprivation of an evidentiary hearing constitutes a denial of due process was made and rejected in Pinzino, the court saying, 334 S.W.2d at 27-28:

“Appellant contends, however, that even though we hold that the statutes required no hearing prior to the supervisor’s refusal to issue a renewal license, the supervisor’s failure to hold such a hearing and the refusal of the circuit court to hear evidence on review, constituted a denial of due process in violation of the pertinent provisions of the state and federal constitutions. While this contention probably should be presented as an attack on the constitutionality of the statute empowering the supervisor to refuse to issue a license or a renewal license without a hearing, the contention, as made, overlooks the fact that the license being presently considered is one permitting the sale of 3.2% beer, and thus is in a category separate and apart and not subject to the law applicable to the denial of other licenses to engage in a trade or business or profession, or to sell a certain product. In State v. Wipke, 345 Mo. 283, 133 S.W.2d 354, 359[9, 10], the court en banc quoted this from State v. Parker Distilling Co., 236 Mo. 219, 255, 139 S.W. 453, 237 Mo. 103, 139 S.W. 453, 461: ‘Those authorities also establish the fact that the liquor traffic is not a lawful business, except as authorized by express legislation of the state; that no person has the natural or inherent right to engage therein; that the liquor business does not stand upon the same plane, in the eyes of the law, with other commercial occupations. It is placed under the ban of law, and it is therefore differentiated from all other occupations, and is thereby separated or removed from the natural rights, privileges, and immunities of the citizen.’ In State ex rel. Billado v. Wheelock, supra, 114 Vt. 350, 45 A.2d 432[5, 6], it was said: ‘When the purpose of an administrative determination is to decide whether a privilege which an applicant does not possess, such as a license to sell intoxicating liquor, shall be granted to him or withheld in the exercise of a discretion vested by statute, notice and hearing is not necessary in the absence of an express or implied statutory provision therefor. 42 Am.Jur., Public Administrative Law, § 135; City of Centerville v. Gayken, 20 S.D. 82, 104 N.W. 910; McCormick v. Pfeiffer, 19 S.D. 269, 103 N.W. 31; Burke v. Collins, 18 S.D. 190, 99 N.W. 1112; Casala v. Dio, 65 R.I. 96, 13 A.2d 693; Darby v. Pence, 17 Idaho 697, 107 P. 484, 27 L.R.A.,N.S., 1194; Oval Bar & Restaurant, Inc., v. Bruckman, 177 Misc. 244, 30 N.Y.S.2d 394; Usdane v. Bruckman, Sup., 30 N.Y.S.2d 396. It may be that there would be less danger of arbitrary action if a hearing were made a prerequisite, but that is a matter for legislative consideration, and not for us. The mere refusal to grant an applicant for a license to sell intoxicating liquors a hearing, when the statute does not require one, does not make the denial of the application arbitrary or capricious. Darby v. Pence, supra; State ex rel. Renner v. Noel, 346 Mo. 286, 140 S.W.2d 57; Burke v. Collins, supra.’ And it is generally held that due process is not violated even by suspension or revocation (much less refusal) of a license without notice and hearing (where no notice or hearing is required by law). Annotation, 35 A.L.R.2d 1067, 1070-1073. And so it is that the cases cited by appellant as to the right of an applicant to a hearing prior to the denial of a license are inapplicable where, as here, the license in question is one to engage in some aspect of the liquor business.”

Subsequently, in Peppermint Lounge, Inc. v. Wright, 498 S.W.2d 749, 753 (Mo.1973), this court again discussed the due process contention, saying:

“ * * * In the Pinzino opinion the due process argument, advanced here by appellants, was rejected on the basis of the difference between the liquor business and other commercial occupations and on the basis that ‘ “[w]hen the purpose of an administrative determination is to decide whether a privilege which an applicant does not possess, such as a license to sell intoxicating liquor, shall be granted to him or withheld in the exercise of a discretion vested by statute, notice arid hearing is not necessary in the absence of an express or implied statutory provision therefor.” ’ Pinzino v. Supervisor of Liquor Control, supra, 334 S.W.2d 1. c. 27. Under the broad power of the states under the Twenty-first Amendment to the Constitution of the United States to specify the times, places and circumstances where liquor may be dispensed within its borders, California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), we reemphasize and reaffirm our position that because of the peculiar characteristics of the liquor business due process of law does not require a hearing on an application for a full drink liquor license.”

See also State ex rel. Wiggins v. Hall, 452 S.W.2d 106 (Mo. banc 1970); State ex rel. Renner v. Noel, 346 Mo. 286, 140 S.W.2d 57 (banc 1940); Kehr v. Garrett, 512 S.W.2d 186 (Mo.App.1974).

Most courts in other jurisdictions have adopted a rule similar to that announced in Pinzino and Peppermint Lounge. This fact is recognized in Kopper Kettle Restaurants, Inc. v. City of St. Robert, 439 S.W.2d 1, 4 (Mo.App.1969), where the court stated:

“Although there is some authority to the contrary, e. g., Hornsby v. Allen, 5 Cir., 326 F.2d 605, 608-610, and Martin v. Board of Supervisors of Lake County, 135 Cal.App. 96, 26 P.2d 843, 845-846[4][5-7], the general rule and the rule in Missouri is that, absent a statutory requirement, notice and a hearing are not prerequisites to the exercise of discretionary authority to grant or deny a liquor license. Lewis v. City of Grand Rapids, 6 Cir., 356 F.2d 276, 286-287, cert. den. 385 U.S. 838, 87 S.Ct. 84,17 L.Ed.2d 71; Pinzino v. Supervisor of Liquor Control, Mo., 334 S.W.2d 20, 27-28 [6-8].”

Respondent urges that the liquor license which the restaurant sought to renew was a property right and that due process requirements mandated an evidentiary hearing before applicant could be deprived of such property right. In support thereof, respondent cites and relies on various recent decisions of the United States Supreme Court. We conclude that decisions of that court do not require a change in the rule announced in Pinzino and Peppermint Lounge. In City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), the Supreme Court reviewed the decision of a three judge panel in the district court which held that due process constitutionally required notice and an adversary type hearing prior to denial of an application for renewal of a one year liquor license. The Supreme Court reversed, holding that a city is not a “person” under 42 U.S.C. § 1983. The case was ordered remanded to enable the district court to consider whether it had jurisdiction on some other basis and, if it did, to reconsider asserted Fourteenth Amendment rights in the light of intervening decisions. In so doing, the Court said, 412 U.S. at 515, 93 S.Ct. at 2227:

“Appellees’ licenses have been neither revoked nor suspended. Their claim of deprivation of Fourteenth Amendment procedural due process rights arises from the failure of the cities of Kenosha and Racine to hold full-blown adversary hearings before refusing to renew their one-year licenses. Our decisions last year in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 626 (1972), . discussed the nature of ‘liberty’ and ‘property’ that is protected against denial without due process by the Fourteenth Amendment. The District Court did not discuss these recent cases, and it followed, in part, the decision of the Court of Appeals for the Seventh Circuit which was reversed in Roth. It, therefore, made no evaluation of ‘property’ or ‘liberty’ interests which might require a due process hearing, or of the nature of such a hearing if it were required in the light of our opinions in Roth, supra, and Perry, supra.
“The District Court, also, did not have the benefit of this Court’s decision in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). There we held again that while the Twenty-first Amendment did not abrogate a requirement of procedural due process, Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), it did grant the States broad authority over the distribution and sale of liquor. We also held that regulations prohibiting the sale of liquor by the drink on premises where there were nude but not necessarily obscene performances were facially constitutional.
“We, therefore, direct the District Court, after addressing the issue of jurisdiction, to reconsider its judgment in the light of Roth, Perry, and LaRue. The judgment of the District Court is vacated and the cause is remanded for proceedings consistent with this opinion.”

This court in Peppermint Lounge considered the effect of the cases which the Supreme Court in Bruno directed the district court to consider in determining the need for an evidentiary hearing in connection with an application for a liquor license. Having so done, this court concluded, 498 S.W.2d at 753:

“ * * * The position taken by this Court in Noel and Pinzino, supra, are not inconsistent with later concepts of the nature and limits of the property interests procedurally protected by the Fourteenth Amendment. For instance, in Board of Regents v. Roth, 408 U.S. 564, 576-577, 92 S.Ct. 2701, 2708, 33 L.Ed.2d 548 (1972) it was observed that the Amendment’s procedural protection of property ‘is a safeguard of the security of interests that a person has already acquired in specific benefits.’ (Emphasis ours.) Roth further indicates that to have a property interest in a benefit a person must have more than an abstract need or desire for it and more than a unilateral expectation of it; he must have a ‘legitimate claim of entitlement to it.’ Thus Roth, a teacher hired by a state university for a fixed term of one year, who did not have tenure, informed without explanation that he would not be rehired for the ensuing year, was held to have no property interest in continued employment protected by procedural due process. Similarly, appellants have no protectable property interest in a liquor license. Not having acquired any interest in a liquor license; having only the acquisitive desire for and a unilateral expectation of a license and no basis of a claim of ‘entitlement’ thereto, appellants have no right under the Fourteenth Amendment to a hearing on the question of its issuance.”

It is true that Peppermint Lounge dealt with an original application for a license (rather than a renewal of an existing license) but we conclude and hold that this does not dictate a different result. In Board of Regents v. Roth, supra, the Supreme Court held that a non-tenured teacher who had a one year contract with the university did not thereby secure an interest in re-employment for the next year and had no rights to procedural due process in connection with whether he would be rehired. In Bruno the court dealt with an application to renew a one year liquor license (same as here). We conclude that the appellant had no property interests in the one year liquor license which it possessed that would call for an evidentiary hearing as a condition to a denial of its application for the issuance of a renewal license. Accordingly, we hold that the failure to accord such an evidentiary hearing did not constitute a denial of due process.

Is the Missouri Liquor Control Law unconstitutional on the basis that it denies equal protection of the law as guaranteed by Fourteenth Amendment to the U. S. Constitution?

Finally, it is asserted that the Missouri Act denied equal protection by requiring no hearing when the supervisor acts on applications for new or renewal liquor licenses but does require an evidentiary hearing before the supervisor may either revoke or suspend a liquor license. There is no rational basis, says respondent, for this differentiation in statutory classification and hence it is unreasonable. Respondent argues that refusal to renew amounts in at least some circumstances to a revocation even though not designated as such.

We reject this contention. There is a rational basis for the distinction. When applicant receives a liquor license for a fixed period such as a year, the legislature may conclude that the applicant makes definite plans for that period such as arrangements for financing, leasing, employment of personnel, contracts with suppliers and other matters. It is not unreasonable for the legislature to conclude that in such situations the applicant should be entitled to count on retaining that license for the specified period unless after notice and an adversary hearing, it is demonstrated that the license should be revoked or suspended. On the other hand, an applicant for a liquor license, whether new or renewal, seeks something it does not now have. No existing right, whether classified as property or not, is at stake. Just as the non-tenured teacher with a one year contract in Roth had no right to a hearing on whether he would be hired for another year, so the applicant for a renewal liquor license is not entitled to a hearing unless the statute so provides. Applicant has not been denied equal protection of the laws.

Having concluded that the circuit court in considering a petition for review under § 311.700(2) has no jurisdiction to hear and consider evidence in addition to the record certified to it by the supervisor as required by statute, our preliminary rule in prohibition against taking testimony from relator Garrett or other witnesses or considering testimony previously taken from respondent Jasper Mirabile is made absolute.

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

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

BARDGETT, Judge

(dissenting).

I respectfully dissent. The issue is whether the circuit court is permitted to take evidence at the hearing on a petition for review where the supervisor of liquor control refused to renew a liquor by the drink license but did not afford the licensee any hearing.

The duty of the circuit court is to determine whether the decision of the supervisor is authorized by law. Section 311.700(2), RSMo 1969. The supervisor’s decision not to renew was upon his finding that Jasper Mirabile was not a person of good moral character. Mirabile was managing officer of the corporation which held the license and which had operated a restaurant and bar since about 1961.

The circuit court believed it had to hear evidence in order to decide whether the supervisor’s decision was or was not authorized by law.

If the supervisor had sought to revoke a license or to suspend a license even for only a few days, he is required by law to give notice of charges and hold an evidentiary hearing. Section 311.690, RSMo 1969. But under the principal opinion, the licensee is not entitled to a hearing if his right to do business is terminated by a refusal to renew the license.

Revocation and nonrenewal accomplish the same result — the licensee is out of business.

In my opinion, the legislature recognized that the holder of a license has a property interest in its continuation and that is why the notice and hearing are required for suspension and revocation. I believe that due process and equal protection require that the holder of a license be afforded a hearing before the supervisor on the issue of license renewal before he is put out of business. Furthermore, it is my opinion that equal protection of law requires that a licensee be afforded the same or substantially the same right to notice and hearing as a licensee receives when suspension or revocation is the question.

In this case, the circuit court undertook to receive evidence in order to perform its review function under the law. Had the supervisor afforded the licensee a hearing in which the licensee had an opportunity to present evidence and argument refuting or explaining the charges and evidence against him, the circuit court would have a record before it upon which it could perform its review function. The so-called record filed by the supervisor merely contains whatever the supervisor wants it to contain. He may simply include material which, in his opinion, supports his conclusion. It may consist of totally incorrect information but the supervisor may honestly believe it to be correct. But the inaccurate or incorrect information cannot be shown to be such unless there is a .hearing in which both sides can be heard.

I recognize that the position I take is contrary to prior Missouri eases referred to in the principal opinion and which concern the renewal of a license. In my opinion, the earlier cases which hold that a licensee has no right to a hearing before the supervisor on the issue of renewal of a license were incorrectly decided and should be overruled.

. I do not believe it is realistic to suggest, as the principal opinion does, that persons who receive a liquor license gauge their arrangements for financing, leasing, employment of personnel, contracts with suppliers, and other matters to an expectancy of being in business for one year — the term of a license. To the contrary, common experience teaches that the investment made in many restaurants where liquor is sold is very substantial and that the investment is made and the commitments entered into with the actual expectation of deriving substantial revenue from liquor sales over a period of many years.

In City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), cited in the principal opinion, the court, referring to its decision in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), said, “There we held again that while the Twenty-first Amendment did not abrogate a requirement of procedural due process, Wisconsin v. Constantineau, 400 U.S. 483, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), it did grant the states broad authority over the distribution and sale of liquor.”

Thus it appears that a liquor licensee does have some claim to procedural due process in connection with the renewal of his license.

In Peppermint Lounge, Inc. v. Wright, 498 S.W.2d 749, 753 (Mo.1973), the issue was whether due process required that an applicant for an original (not renewal) liquor license was entitled to a hearing. This court held that due process did not require such a hearing and analogizing to Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), said, “Similarly, appellants have no protectable property interest in a liquor license. Not having acquired any interest in a liquor license; having only the acquisitive desire for and a unilateral expectation of a license and no basis of a claim of ‘entitlement’ thereto, appellants have no right under the Fourteenth Amendment to a hearing on the question of its issuance.”

I have no quarrel with this court’s holding in Peppermint Lounge because it dealt with an original license. The applicants had not acquired any interest in a continuation of the license because one had never been issued.

But in the instant case the license had been issued and renewed since about 1961. In Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), the question concerned the suspension of a driver’s license. The court said, “Once licenses are issued, as in petitioner’s case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. [citing cases.] This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a ‘right’ or a ‘privilege’.” 402 U.S. 539, 91 S.Ct. 1589.

Whatever may be said about the sale and distribution of liquor being under the ban of law, the fact remains that it is a lawful enterprise for one to engage in if he has the proper license. That license is his livelihood just as surely as a driver’s license, once issued, is important to the licensee’s ability to earn a living.

ditath, supra, does not say a liquor license holder is not entitled to procedural dug process. To the contrary, HSotfr ⅞¾⅜⅛½⅛ the Twenty-first Amendment did not abrogate a requirement of procedural due process. 412 U.S. at 515, 93 S.Ct. 2222. The principal opinion in the instant case seems to hold that a liquor licensee is not entitled to procedural due process in connection with the renewal of his license. In my opinion, that is not a correct statement of the law.

In my opinion, the due process clause of the Fourteenth Amendment entitles a liquor licensee to a meaningful hearing before the supervisor on the question of license renewal. I also believe that the equal protection clause requires that the same or substantially the same rights be afforded the licensee on renewal as is afforded a licensee with respect to revocation or suspension.

Since there was no hearing afforded the licensee by the liquor supervisor, I am of the opinion that the circuit court should not be prohibited from receiving evidence on review in order to decide whether the refusal to renew was authorized by law as I think that, in this case, the reception of evidence is essential to due process. I realize that this dissent has gone beyond the specific issue presented in this prohibition case but I believe that such was necessary because the principal opinion seems to address itself to the overall constitutionality of various provisions of the Missouri Liquor Control Law. It may be that a major portion of the principal opinion is dictum in this case. If so — then so is the major portion of this dissent.

On the specific question of whether or not this court should prohibit the circuit court from taking testimony in this case, I am of the opinion that our preliminary rule in prohibition should be quashed. Section 311.700, RSMo 1969, requires the circuit court to determine whether or not the decision of the supervisor was authorized by law or as some cases have put it, whether the decision was arbitrary or capricious. Here, there had been no hearing before the supervisor and therefore the only way the circuit judge can make the decision required of him is to find out what the decision of the supervisor was actually based upon in order to decide if that decision was, in fact, an abuse of discretion.

Otherwise the circuit court is relegated to accepting as factually true whatever the supervisor chooses to put into his letter advising the licensee of his refusal to renew and merely “rubber stamp” the decision of the supervisor.

In order to afford any meaningful review in a case such as this, the circuit court, in my opinion, should not be prohibited from receiving evidence with respect to the basis of the supervisor’s decision. I would quash our preliminary rule as having been improvidently granted and, if an appeal is taken from the circuit court’s judgment, rule issues presented on that appeal at that time.

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

      . On the following day, July 9, 1974, the corporation filed a new application to renew its liquor by the drink license. That application and accompanying documents disclosed that Jasper Mirabile had transferred all of his stock in the corporation to his wife Josephine and that she had been named managing officer of the corporation. The application stated that Jasper Mirabile would serve as food manager for the restaurant but would have nothing to do with dispensing alcoholic beverages. The supervisor, on the basis of these representations, approved that application and the liquor by the drink license of the corporation was renewed. Relator thereafter filed a motion to dismiss the petition for review on the basis that the requested relief (i. e., renewal of the corporation’s liquor license) had been granted and the issue was moot. That motion was overruled. We do mot decide the mootness question in this proceeding in prohibition.

      . At that hearing respondent permitted Jasper Mirabile individually to be named as an additional petitioner in the proceedings to review the action of the supervisor in refusing to renew the corporation’s license. The propriety of that action is not an issue in this proceeding.

      . In this case the supervisor acted pursuant to § 311.210, but its provisions are identical to § 312.120.

      . In reaching the conclusion stated in the quoted paragraph that the supervisor was not required to hold a hearing in connection with whether to issue a renewal license, the court stated, 334 S.W.2d at 25:
      “A review of the statutes referred to above makes it reasonably clear that the legislature has vested sole discretion in the supervisor to issue or refuse to issue each license, whether one of original issue or a renewal, and that a hearing is not an essential prerequisite to the lawful exercise of that sole discretion. Section 312.-120 (vesting discretion in the supervisor to issue or refuse to issue licenses) refers to all applications for all licenses mentioned in the chapter and vests discretion in the supervisor to determine whether each application for such license shall be approved or disapproved, thus including by that broad language the renewal licenses mentioned and provided for in section 312.110. And section 312.120 does not contain any requirement for a hearing on the question whether to issue a license, while section 312.370 requires that prior to revocation or suspension the supervisor must give notice and hold a hearing as an essential prerequisite to the lawful exercise of the discretion vested in him to revoke or suspend a license.
      “It would appear, therefore, that the legislature dealt differently with refusal to issue licenses and the suspension or revocation thereof, providing for a hearing as to the latter but omitting any such requirement as to the former.”

      . Illustrative citations include Smith v. Iowa Liquor Control Comm’n, 169 N.W.2d 803 (Iowa 1969), cert. denied, 400 U.S. 885, 91 S.Ct. 146, 27 L.Ed.2d 130 (1970); Walker v. City of Clinton, 244 Iowa 1099, 59 N.W.2d 785 (1953); Hornstein v. Illinois Liquor Control Comm’n, 412 Ill. 365, 106 N.E.2d 354 (1952); Green Mountain Post, No. 1, Am. Legion v. Liquor Control Bd., 117 Vt. 405, 94 A.2d 230 (1953). See also 1 F. Cooper, State Administrative Law ch. V, § 5 (1965); 1 K. Davis, Administrative Law Treatise § 7.19 (1958); Annot., Right to Hearing Before Revocation or Suspension of Liquor License, 35 A.L.R.2d 1067, § 3 (1954); An-not., Grant or Renewal of Liquor License as Affected by Fact that Applicant Held Such License in the Past, 2 A.L.R.2d 1239, § 2 (1948).

      . The court also considered the effect of the Twenty-first Amendment to the U. S. Constitution and the case of California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972).


author: SIMEONE, Presiding Judge.

text:
    Otis THARP, Plaintiff-Respondent, v. Elmer C. OBERHELLMANN, Administrator of the Estate of Maxwell Ferrell, Deceased, et al., Defendants-Appellants.
    No. 36442.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 8, 1975.
    Motion for Rehearing or Transfer to Court En Banc Denied Sept. 8, 1975.

      Leonard P. Cervantes, Igoe & Igoe, St. Louis, for defendants-appellants.
    Robert E. Keaney, St. Louis, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

This is an appeal by the defendants-appellants, the minor children of Maxwell Ferrell, by their guardian ad litem, from a judgment entered by the circuit court of the City of St. Louis on June 25, 1974, barring them from maintaining an action for the alleged wrongful death of their father. We affirm.

On February 1, 1971, Maxwell Ferrell was an employee of the Lee Paper Company in the City of St. Louis. On that date he was operating a fork lift truck and was engaged in loading a truck owned by plaintiff Otis Tharp and operated by John Eugene Coleman. Coleman’s truck had backed up to the loading dock, which was a few inches higher than the bed of the truck. A metal plank was placed between the loading dock and the truck, and acted as a bridge. Ferrell put one “pallet” of material onto the truck, and while backing up after depositing the second pallet, the metal plank moved, and the fork lift fell between the dock and the truck, “pinning” Ferrell between the steering wheel of the fork lift and the seat of the lift. The steering column was bent. According to Mr. Coleman, the steering wheel pressed him in his “mid section” — “slightly above his abdomen with a radius of about four inches.” His legs were also pinned underneath. The “steering column had bent and forced the steering wheel up against him.” Mr. Ferrell was removed, placed on the dock and taken to the hospital. There was skin torn from one of his calves; he suffered several broken ribs, fractures of the transverse process of L-2 and L-3 on the left side and L-3 on the right side, and blood was found in the urine.

On May 30, 1971 — Memorial Day — Mr. Ferrell expired. Following his death, the administrator of his estate and his minor children, through their mother, filed separate actions for damages arising out of Mr. Ferrell’s death against the plaintiff herein, Mr. Otis Tharp. On December 28, 1971, Mr. Tharp, the defendant in those actions, filed his petition in interpleader against the administrator of Ferrell’s estate and the guardian ad litem of the minor children, alleging that two claims had been filed against him and praying the court to make its finding as to the cause of death of Maxwell Ferrell and to determine which of the claimants should be barred from further action against him. Rule 52.07; Plaza Express Company v. Galloway, 365 Mo. 166, 280 S.W.2d 17 (banc 1955).

The cause eventually came to trial. The central issue facing the trial court was to determine whether the accident of February 1, 1971, caused or contributed to cause the death of Mr. Ferrell or whether his death resulted from other causes. The whole thrust of the evidence of the defendants, minor children, was to show that the injuries received caused or contributed to cause the death. This evidence consisted of testimony of Mr. Ferrell’s “wife,” two physicians and a number of books and articles dealing with heart disease caused by non-penetrating chest injuries. Mr. Ferrell was a good worker; before the accident he walked to work, played with the children and was able to ascend stairs without difficulty. His “wife” testified that after the incident on February 1, he had to catch his breath while walking up and down the steps, had trouble sleeping, had to sleep in a chair, and could not engage in physical activities.

A physician, Dr. Frede Mortensen, testified for the minor children. It was his opinion based upon reasonable medical certainty that Mr. Ferrell suffered a nonpene-trating chest injury which resulted in a cardiac contusion or traumatic heart disease. In his opinion the evidence was “very great that he had a cardiac contusion,” and that the incident of February 1 caused or contributed to cause Mr. Ferrell’s death.

The defendants also introduced the deposition of Dr. Frank J. Cantanzaro, who stated that, in his opinion, Mr. Ferrell “most likely developed traumatic heart disease from the chest injury . . . and died a sudden electrical cardiac death on May 30, 1971 as a result of the traumatic heart disease.” His opinion was that the injury did “contribute materially to the patient’s death.”

The thrust of the evidence for the plaintiff was that Mr. Ferrell died from causes other than the injuries suffered on February 1. Dr. George E. Gantner, Jr. testified that in his opinion, based upon available evidence, Mr. Ferrell died as a result of pre-existing arteriosclerotic heart disease, that Mr. Ferrell did not suffer injury to the heart and that there was no relationship between the accident and his subsequent death.

After extensive evidence on behalf of both the plaintiff and the minor children, the trial court concluded that the “accident and injuries sustained by Maxwell Ferrell on February 1, 1971, did not cause and did not contribute to the cause of Maxwell Ferrell’s death on May 30, 1971.”

The minors, through their guardian, duly appealed. On this appeal they make several points, but their principal contentions are (1) that the trial court erred in admitting the opinion of Dr. Gantner as to causal connection because the “facts upon which an experts [sic] opinion is based must measure up to legal requirements of substantially [sic] and probative force,” and because an “experts [sic] opinion must not be a mere guess or conjecture, but must be based upon facts and adequate data” ; and (2) that the trial court erred in finding that the injuries sustained on February 1,1971, did not cause or contribute to cause the death of Mr. Ferrell because the weight of the evidence was overwhelmingly against the judgment of the trial court and in such situation we may determine what judgment should be rendered.

This is a court tried case. In such a proceeding we review the cause both upon the law and the evidence and the weight and value thereof, and we reach our own independent conclusions from a consideration of all the evidence, while giving due deference to the opportunity of the trial court to judge the credibility of the witnesses. Pope v. Pope, 520 S.W.2d 634, 636 (Mo.App.1975); Albert v. Declue, 526 S.W.2d 39 (Mo.App.1975). Furthermore the judgment of the trial court is not to be set aside unless it is clearly erroneous. We agree with the appellants that where the finding of the trial court is overwhelmingly against the weight of the evidence we may rule, contrary thereto. Trotter v. Carter, 353 Mo. 708, 183 S.W.2d 898, 902 (1944).

We have carefully read the entire record in this case; we have reviewed the authorities relied upon by the appellants, and, based upon the principles stated herein, we are convinced that the judgment of the trial court should be affirmed. The judgment of the trial court, in finding that the accident of February 1, 1971, did not cause or contribute to cause the tragic death of Mr. Ferrell, was not clearly erroneous. The question of fact — the cause of death of Mr. Ferrell — was resolved by the trial court on conflicting evidence. We accord due deference to the trial court because of its superior opportunity to weigh, evaluate and assess the testimony. And our own independent review of the trial court’s findings and judgment convinces us that there was sufficient evidence to conclude that Mr. Ferrell’s death was due to causes other than the injuries sustained on February 1, and that the proper result was reached. The finding of the trial court was not, as appellants contend, overwhelmingly against the weight of the evidence.

Neither was the opinion of Dr. Gantner based upon mere guess or conjecture, nor were the facts upon which his opinion was based unsubstantial and lacking in probative force. Dr. Gantner is a specialist in pathology and forensic pathology. His qualifications rested in the first instance in the sound discretion of the trial court, and that decision is not to be set aside in the absence of a showing of an abuse of discretion. Parlow v. Dan Hamm Drayage Co., 391 S.W.2d 315, 325 (Mo.1965). We find no such abuse of discretion. He had knowledge of cardiology — “[treatment and knowledge are different.” He based his opinion “on the entirety, the sum of the case that I have available to me.” His opinion was based in part upon one of the histories on the hospital record which indicated previous chest pains lasting fifteen minutes occasionally with increasing frequency, and two times in the past two months, paroxysmal nocturnal dyspnea; on X-rays which showed no abnormality of the heart at the time of admission; on calcification in the aorta; on an electrocardiogram taken two days after the injury which showed a normal reading; on the injuries described which were not close to the heart but to the midaxillary line and to the low back; on the autopsy report which revealed “[s]evere coronary artery disease involving all three arteries; and on the fact that there, was no permanent stigma on the heart.

We hold that there was no abuse of discretion in the trial court’s finding that Dr. Gantner was a qualified witness and that there was adequate data upon which Dr. Gantner could form an opinion. His opinion was not a “mere guess or conjecture,” but based on facts and adequate data.

Based upon the entire record, we are convinced that the trial court did not err in (1) finding that the “accident and injuries sustained by Maxwell Ferrell on February 1,1971, did not cause and did not contribute to the cause of Maxwell Ferrell’s death on May 30, 1971” and (2) barring the appellants from maintaining the wrongful death action filed against the plaintiff.

The judgment is affirmed.

McMILLIAN and GUNN, JJ., concur.

      . § 537.020, RSMo 1969, provides: “1. Causes of action for personal injuries, other than those resulting in death, . . . shall not abate by reason of his death, nor by reason of the death of the person against whom such cause of action shall have accrued . .
      § 537.080 provides: “Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, which damages may be sued for and recovered . .

      .Rule 73.01(3), effective January 1, 1975, does not use the term “clearly erroneous” as former Rule 73.01(d) did. However, this principle still remains. R. L. S. v. J. E. S., 522 S.W.2d 5, 6-7 (Mo.App.1975); In the Interest of Lucjan and Janina Novak, No. 35,772, Mo.App., St. Louis District, May 6, 1975; Smith v. Thomas, 520 S.W.2d 132, 134 (Mo.App.1975).

      . Although this history was taken by a student, it was not changed or modified by any superior.

      . Both Dr. Gantner and Dr. Mortensen agreed that an electrocardiogram taken a few days after an injury was a good time.


author: DOWD, Judge.

text:
    STATE of Missouri, Respondent, v. Donald McDONALD, Appellant.
    No. 35010.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 15, 1975.
    Rehearing Denied Sept. 8, 1975.
    Crouppen, Walther & Zwibelman, Roy A. Walther, III, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Neil McFarlane, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for respondent.
   DOWD, Judge.

Defendant appeals from a conviction of assault with intent to kill without malice aforethought. A jury fixed defendant’s sentence at six months in the St. Louis Medium Security Institution. Section 559.-190, RSMo. 1969.

The facts can be briefly stated. Late in the evening of November 3,1971, defendant and a companion arrived at a combination tavern and pool hall in St. Louis. Defendant attempted to “challenge” Thomas Karcher, who was playing pool, by placing a quarter on the edge of the pool table. Karcher knocked the quarter off the table and an argument ensued between defendant and Karcher, during which Karcher threatened defendant with bodily harm. Defendant then went outside to his companion’s automobile, got his companion’s .22 caliber target pistol from the automobile trunk, stuck it under his belt, and returned to the tavern.

The testimony differed on what subsequently happened. There was a scuffle between defendant and Karcher, and defendant shot Karcher twice with the pistol. Some witnesses testified that defendant shot Karcher only after Karcher had attacked defendant with his fists and a bar stool. Other witnesses said defendant approached Karcher and shot him before the fight began.

During the fight defendant dropped the pistol. The defendant’s companion then picked up the gun, ran outside, and fired several shots into the tavern through a window. Defendant and his companion then left. Later defendant voluntarily surrendered to the police.

Defendant’s sole contention on appeal is that the trial court erred in rejecting his offer to prove that the victim had been in other fights with third parties and that defendant was aware of these fights. Defendant urges that the excluded evidence was relevant to his defense of self-defense, a key element of which is whether defendant had a reasonable belief that his life or personal safety was immediately threatened by the victim.

The trial judge properly excluded evidence that the victim had been in other fights and that the defendant was aware of these fights.

For nearly one hundred years the Missouri rule has been that where the defense is self-defense evidence is admissible to show that the victim had the reputation of being of a violent and turbulent disposition or character. But this evidence must be shown by testimony concerning the victim’s general reputation, and not by evidence of specific acts of violence having no connection with defendant. State v. Elkins, 63 Mo. 159 (1876); State v. Woods, 274 Mo. 610, 204 S.W. 21 (1918); State v. Naylor, 328 Mo. 335, 40 S.W.2d 1079 (1931); State v. Cavener, 356 Mo. 602, 202 S.W.2d 869 (1947); State v. Smart, 328 S.W.2d 569 (Mo.1959); State v. Hicks, 438 S.W.2d 215 (Mo.1969); and, State v. Duncan, 467 S.W.2d 866 (Mo.1971).

Two reasons have been advanced in support of the rule. First, a man should be judged by the tenor of his entire life and not by a mere episode in it. Secondly, if evidence of specific acts could be relied on to prove the victim was of a violent disposition, then this evidence would likely result in raising collateral issues which would lengthen trials and divert the jurors’ minds from the main issue in the trial which is the defendant’s guilt or innocence. State v. Duncan, supra, 868.

The Missouri Supreme Court en banc has recently reaffirmed both the rule and the reasoning behind it. State v. Maggitt, 517 S.W.2d 105 (Mo. banc 1974).

The judgment is affirmed.

WEIER, P. J., and RENDLEN, J., concur.