text:
    James L. BATTLES, Deceased, Marla J. Battles Neece, widow, and Rebecca Jean Battles, minor dependent, Respondents, v. MASSMAN CONSTRUCTION COMPANY and the Travelers Insurance Company, Appellants.
    No. 60958.
    Supreme Court of Missouri, En Banc.
    April 10, 1979.

      Gary E. Lowe, Field, Gentry, Benjamin & Robertson, Kansas City, for appellants.
    Richard D. Rhyne, Linde, Thomson, Fair-child, Langworthy & Kohn, Kansas City, for respondents.
   SIMEONE, Judge.

This case basically raises the identical issue posed in Yardley v. Gaylord Montgomery and United States Fidelity and Guaranty Company, No. 60961 and Asher v. Killion Construction Co., No. 60844, decided this date, Mo., 580 S.W.2d 263. That issue is: When an employee covered by workmen’s compensation dies in the scope of his employment and the widow thereafter remarries and receives a two-year statutory lump sum award, is the dependent child entitled to the widow’s weekly benefit immediately upon the date of the widow’s remarriage or is the child’s increased benefit to be deferred until after the expiration of two years? As in Yardley and Asher we hold in this case that under the provisions of § 287.240, subsection 4(a) that upon the remarriage of the widow of a deceased employee, the periodic benefits to which the widow would have been entitled had she not remarried is, in this case, to be paid to the minor child immediately upon the remarriage of the widow and such payments are not to be deferred until the termination of two years after the remarriage. We thus affirm the order of the circuit court in this regard.

The facts are not in dispute. On August 16, 1974, James L. Battles was employed by Massman Construction Company and was subject to the workmen’s compensation law. On that date he sustained an accident wherein he was electrocuted which resulted in his death. Marla J. Battles, his wife, and an infant daughter, Rebecca Jean Battles were his survivors. The compensation referee, after a hearing, awarded the widow the sum of $65.00 per week and the child $30.00 per week for death benefits. The award was entered December 31, 1974. The referee held that the compensation benefits due the widow “shall be paid to her until her death or remarriage at the compensation rate of $65.00 per week. In the event of her remarriage, a lump sum payment equal in amount to the benefits due for a period of two years shall be paid to the widow, thereupon the periodic payments to the widow shall cease, and said periodic payments to which said widow would have been entitled had she not died or remarried shall be paid to the dependent child, Rebecca Jean Battles.”

Marla J. Battles then married Victor L. Neeee. Following remarriage, the Labor and Industrial Relations Commission on January 13, 1977, entered its order modifying the award. The Commission, with one dissenting opinion, found that Marla was married to Mr. Neece on June 28, 1976 and ordered:

“(1) That a lump sum payment equal in amount to the benefits due her for a period of two years shall be paid to the widow. She is to receive in lump sum $6,760.00, which is the amount due her per week ($65.00) times two years (104 weeks). Thereupon the death benefits heretofore paid to said widow, . cease and abate as of June 29,1976 . . .
“(2) The minor child, Rebecca Jean Battles, is continued the weekly benefit of $30.00 from June 29, 1976 for 104 weeks thereafter at which time her benefit amount will be increased by $65.00 per week.”

An appeal from this order was taken to the circuit court of Jackson County. On February 22, 1977, the circuit court made findings of fact, conclusions of law and entered its order reversing the Labor and Industrial Relations Commission. The court found the above facts but in addition found that on January 19, 1977, the insurer notified the dependents that its files indicated that it had paid Rebecca the sum of $95.00 per week for six months since the date of remarriage. But as the modifying award indicates “we should have only paid $30.00 per week for that period of [sic] $720.00. This amount[s] to an overpayment of $65.00 per week for 24 weeks or $1,560.00 . .” The insurer sought to retrieve the overpayment by ceasing payments for 52 weeks ($1,560 divided by $30). “After that time we will begin paying $30.00 per week until June 28, 1978. After that date we will again issue weekly payments in the amount of $95.00 per week ($380 every four weeks).”

The circuit court in reversing the Industrial Commission held that the law prior to 1974 provided that when a widow remarried, the benefits ceased. “But if there was a minor child, the benefits continued over to the minor child without interruption. The 1974 Amendment, [§ 287.240(4)(a)] which granted an additional lump sum payment to the widow, was not intended to reduce the periodic benefits which have historically been immediately transferred to any minor children upon the remarriage of the mother and in fact did not reduce those periodic benefits.”

“The legislature’s use of the word ‘thereupon’ to signify the time when the minor child’s benefits shall be increased as the result of the mother’s remarriage indicates that the legislature intended that the remarriage of the widow was the sole necessary and final act which would immediately transfer the widow’s periodic benefits to her minor children.”

The circuit court, on April, 1978, reversed the January 13,1977 order of the Labor and Industrial Relations Commission and ordered the insurer to pay $6,075.00 to Rebecca — “the same representing the amount that should have been paid to Rebecca Jean Battles from the date of the remarriage of her mother, Marla Battles Neece, on June 28,1976, until and including the date of this Order, plus interest . . . .”

The appellants — Massman and Travelers — appealed to the court of appeals, Western District, but on motion of the court of appeals to accept transfer prior to opinion, we granted transfer and decide the case as an original appeal pursuant to the provisions of Art. V, § 10, Mo.Const.

On this appeal, appellants contend that the circuit court erred in (1) reversing the modifying order of the Labor and Industrial Relations Commission because the court misinterpreted the meaning of § 287.-240(4)(a) in allowing the child, Rebecca, the sum of $95.00 per week rather than $30.00 per week for two years following the mother’s remarriage and (2) not allowing the appellants to recover $1,560.00 paid in error as an overpayment to Rebecca for the reason that those payments (made from June, 1976 to January, 1977) were made and accepted because of mutual mistake.

The gist of appellants’ argument on appeal is that the legislative history of § 287.240(4)(a) shows that the intent of the General Assembly, in the various bills and substitutes, is to continue the $30.00 payment to Rebecca for a period of two years and thereafter to receive the widow’s benefit until her majority. The appellants contend that the amendment to H.C.S. for S.S. for S.B. 417 — the last sentence of § 287.-240(4)(a) beginning with “thereupon” was to prevent the two-year lump sum benefit from being a bonus and that the added amount was to be “the periodic benefits to which said widow or widower would have been entitled had he or she not died or remarried . . . Appellants argue that given the two-year lump sum payment, “the widow would have been entitled to absolutely nothing for two (2) years, and her regular periodic benefit thereafter had she not remarried.”

We do not believe that the various bills and substitutes show that the General Assembly intended that the dependent child of a deceased employee wait for two years before receiving the increased benefits to which “said widow or widower would have been entitled had she not died or remarried.”

We conclude, for the reasons stated in Yardley and Asher, and as did the circuit court, that the dependent child is entitled to the widow’s weekly benefits immediately upon the remarriage of the widow and that such increased benefits are not to be deferred for two years, and hence affirm the judgment of the circuit court.

As to the appellants’ second point that they are entitled to recover $1,560.00 paid in error from June, 1976 to January, 1977, we are unable to determine whether the court in its order gave credit for the payment of $1,560.00 paid from the date of remarriage for 24 weeks. In its order the court ordered the insurer to pay $6,075.00 plus interest. Such credit should be given, hence we remand the cause for recomputation, but in all other respects affirm the judgment.

The judgment is in all other respects affirmed.

MORGAN, C. J., BARDGETT, REND-LEN, SEILER and WELLIVER, JJ., concur.

DONNELLY, J., concurs in result.

      . The marriage certificate shows that the parties were married on July 3, 1976, by authority of a license dated June 28,1976.

      . S.B. 417 as originally introduced in the 77th General Assembly eliminated the $22,500 limitation payable to the total dependents in § 287.240(2) and added a two-year lump sum benefit payable to the widow. In the Senate Substitute the lump sum provision was moved to subsection 4(a) and eliminated the $22,500 limitation; in H.C.S. for S.S. for S.B. 417, the two year lump sum remained in subsection 4(a). This provision in 4(a) was amended in the House by adding the last sentence in that subsection beginning with the word “thereupon.”

      . The court stated that the dependents raised two issues which the court will not “reach” since it believes the rulings dispose of the matter: (1) whether due process was afforded dependents with regard to the modification order, and (2) whether the insurer was entitled to modify the payment to Rebecca in order to retrieve the overpayment. The court apparently did not give credit for the $65.00 paid for 24 weeks in its judgment because it ordered payment of $6,075.00 ($65 X 93 weeks) from the date of remarriage, June 28, 1976, to the date of the order (April 11, 1978).


source: Caselaw Access Project

author: SEILER, Judge.

license: Public Domain

text:
    Haley STREETER, B/N/F, Rea Alma Baker, Plaintiff-Appellant, v. John L. HUNDLEY, Defendant-Respondent.
    No. 60640.
    Supreme Court of Missouri, En Banc.
    April 10, 1979.
    As Modified On Courts Own Motion May 17, 1979.

      Charles W. Bobinette, Joseph B. Lavin, St. Louis, for plaintiff-appellant.
    William F. James, Wuestling & James, St. Louis, for defendant-respondent.
    Thomas E. Tueth, Lashly, Caruthers, Thies, Rava & Hamel, A Professional Corp., St. Louis, for amicus curiae.
   SEILER, Judge.

In this case the plaintiff sought damages for injuries to her right hand and wrist resulting from an alleged battery by the defendant, a school teacher, in connection with the administration of corporal punishment as a means of discipline. It was further alleged that the teacher’s conduct was in violation of regulation 3.540 promulgated by the Board of Education of the City of St. Louis pertaining to corporal punishment and was therefore unreasonable and unprivileged. The jury found for the defendant and plaintiff appeals.

The court of appeals, Eastern District, affirmed, adopting the view that portions of the Board of Education regulation pertaining to corporal punishment are void and unenforceable as contrary to the common law of the state of Missouri. While we ordered the cause transferred largely to consider this issue, we will treat the case as though it were here on original appeal.

On April 26, 1972, plaintiff, Haley Street-er was 12 years of age and a student in the fourth grade at the Chouteau Elementary School in the city of St. Louis. She had a history of disciplinary problems, having been suspended from the Hodges School for fighting and from two other schools for similar reasons, and was one of the ring leaders of an unruly and disobedient group of students in the class.

In January of 1972, the defendant, John L. Hundley, was assigned to teach plaintiff’s class. He was the third teacher assigned to that class during the four months of September, 1971 to January, 1972. Because of the undisciplined nature of the class, Mr. Hundley brought several rattan sticks to the class shortly after taking it over for use in administering corporal punishment, if necessary. Although no written permission had been granted by the plaintiff’s mother, Mr. Hundley administered corporal punishment to plaintiff on two occasions prior to the incident with which we are concerned here. Both the plaintiff’s mother and Mr. Hunter, the school principal, knew of these incidents but made no comment to defendant.

On April 26, 1972, plaintiff returned 55 minutes late from the lunch period and entered the cloakroom, a storage area for supplies and personal belongings, to which access was generally denied the students. After repeated requests to return to the classroom went unheeded, Mr. Hundley removed plaintiff from the cloakroom and put her in front of the class, in spite of her resistance and repeated cursing. Hundley told plaintiff to put her hands on the door knob of the closet where he kept the rattan sticks. Plaintiff either refused and kept her hands at her sides or if she did put them on the door knob, removed them after the switching started. Hundley took her by the left arm and, according to him, switched her on the buttocks three times. Plaintiff said he struck her “about eight” times on her arm, hand, buttocks and thigh. Both agreed that she was wriggling, squirming and twisting, trying to avoid him and that the injury complained of to her right hand and wrist occurred when she put her hand behind her to ward off a blow. The plaintiff then ran from the room, continuing to curse Mr. Hundley as she went. The entire occurrence took place in the presence of Mrs. Ella Pearson, a practice teacher.

Plaintiff contends that § 3.540 of the rules and regulations of the St. Louis Board of Education was promulgated under the specific statutory authority of §§ 162.621, 171.011, RSMo 1969, and that its violation constitutes unauthorized and unreasonable punishment per se. Defendant, on the other hand, contends that the regulation is void and unenforceable as being inconsistent with the common law. In our judgment, neither contention is correct.

Section 3.540 states in pertinent part: “3.540 CORPORAL PUNISHMENT
Should the occasion arise when the principal or teacher feels the necessity of using corporal punishment as a corrective measure, the following procedure is to be used:
A. When Administered
Corporal punishment may be administered whenever, after consultation of the principal with the teacher and one or both parents, it is considered necessary. Such punishment shall be administered only when a parent has given written consent for it. If at a later date, the parent wishes to withdraw the permission for corporal punishment, he shall send a second written communication to the principal. When corporal punishment is administered, either the principal may inflict it in the presence of the teacher or the teacher may inflict it in the presence of the principal. In exercising this authority, the principal or teacher shall use the greatest care with reference to the physical condition and temperament of the child.
B. Manner of Administering Corporal Punishment:
Any case of complaint of severity of punishment administered by a principal or teacher shall be adjudged upon its own merits.
1. Improper Manner: Striking a child on the head, slapping the face, boxing the ears, and other undue means of causing pain are strictly prohibited.
2. Proper Manner: The application of a thin rattan or some similar instrument upon the fleshy part of the back shall be the only method of administration.”

This court has long upheld the general authority granted boards of education to promulgate rules in the area of school discipline and student conduct, bounded by necessity and propriety as determined by the board. Kraus v. Board of Educ. of Jennings, 492 S.W.2d 783, 786 (Mo.1973); State ex rel. Beaty v. Randall, 79 Mo.App. 226 (1899); Deskins v. Gose, 85 Mo. 485 (1885); King v. Jefferson City School Board, 71 Mo. 628 (1880).

Here the defendant violated several of the provisions of subsection A of regulation 3.540. He did not first consult with the principal and the parents. He failed to ascertain if a parent had given written consent. He failed to have the principal present when he punished plaintiff. If such violations come within the terms of § 168.-221.3, RSMo 1969, the Board could have held him accountable. In Board of Education, Mt. Vernon Schools, Mt. Vernon v. Shank, 542 S.W.2d 779 (Mo.banc 1976) this court upheld the firing of a teacher under a similar statute pertaining to districts other than metropolitan school districts for willful and persistent violation of a board regulation concerning corporal punishment.

Plaintiff cites Anderson v. Kraft, 129 S.W.2d 85, 89 (Mo.App.1939), where the court was considering the effect of violation by a truck driver of safety rules promulgated by the Public Service Commission requiring the placing of red torches or flags in front of and behind stalled vehicles. Plaintiff, whose automobile collided at night with defendant’s stalled truck, contended defendant’s violation of the rules constituted negligence per se; plaintiff in the case before us argues that violation of a school board rule by a teacher should similarly make him “strictly liable.”

However, for the analogy to hold (putting aside the fact that in the present case we are dealing with an intentional, not a negligent, tort) the purpose of the rule which has been violated must have been to avoid the sort of injury which occurred, Sayers v. Haushalter, 493 S.W.2d 406 (Mo.App.1973); Endicott v. St. Regis Investment Co., 443 S.W.2d 122 (Mo.1969), and that is not the case here.

Subsection A of regulation 3.540 provides procedural conditions to be followed when corporal punishment is administered. Nothing in that section of the regulation was designed to prevent application of unreasonable force or violence in punishing a pupil. Even if the corporal punishment here had been administered in full compliance with subsection A, the injury complained of would not have been avoided.

It is subsection B of regulation 3.540 that sets forth how punishment, if necessary, is to be administered. It is here we find the provisions designed to prevent unreasonable force and injury: the teacher is not to strike the head, face, ears, or use “undue” means of causing pain. Instead, a thin rattan or similar instrument is to be applied only to the fleshy part of the back. The back, in humans, is the hinder part of the body, “extending from the neck to the end of the spine,” Webster’s Third International Dictionary 157 (1967). Blakiston’s New Gould Medical Dictionary 134 (1966) defines back as “[t]he posterior part of the trunk from the neck to the pelvis.” The fleshy part of the back is the buttocks, that portion of the hips on which a person sits, and about which the court in Rupp v. Zintner, 29 Pa.D & C. 625 (1937), noted: “nature has provided a part of the anatomy for chastisement.” Plaintiff does not contend that switching so administered is, of itself, actionable. The complaint centers on injury to plaintiff’s right hand and wrist. This injury, according to evidence presented by both sides, was caused by plaintiff’s placing her right hand behind her to ward off punishment being administered in a manner fully consistent with that prescribed by subsection B of regulation 3.540.

Thus, even if we apply the negligence per se analysis plaintiff insists is required by analogy to Anderson, 129 S.W.2d at 89, there is no basis for finding liability as a matter of law because defendant complied with the only applicable portion of the regulation, subsection B. Rather, the question becomes one of fact as to the reasonableness of the punishment, for, as noted by the court in Haycraft v. Grigsby, 88 Mo. App. 354, 359 (1901) “[t]he teacher has a right to inflict reasonable punishment for misconduct by whipping, but has no right to inflict unreasonable and excessive corporal punishment in that mode or any other.” See also Christman v. Hickman, 225 Mo.App. 828, 37 S.W.2d 672 (1931); Cook v. Neely, 143 Mo.App. 632, 128 S.W. 233 (1910); 43 A.L.R.2d 469, 477 (1955). The jury found that defendant’s act was reasonable, as submitted in instruction No. 3. Our remaining inquiry, therefore, is into whether this instruction provided the jury with the proper standard by which to judge defendant’s conduct.

Plaintiff contends that instruction No. 3 failed properly to reflect the substantive law of Missouri in that it omitted language to the effect that a finding of excessive force on the part of defendant must result in a verdict for plaintiff. Instruction No. 3, a non-MAI instruction submitted at defendant’s request, states:

“Your verdict must be for the defendant if you believe:
First, plaintiff was defendant’s student and
Second, plaintiff engaged in classroom misconduct on April 26, 1972, and
Third, the corporal punishment administered by defendant was reasonable punishment for the classroom misconduct on April 26, 1972.
[Not MAI; modified, by defendant]”

Plaintiff’s contention focuses on the third paragraph of the instruction and appears to argue that the element of whether a reasonable degree of force was used should have been set out expressly, by use of the terms “necessary” or “excessive”, with reference thereto. She relies on Hay-craft, 88 Mo.App. at 358, and State v. Boyer, 70 Mo.App. 156 (1897). We note rule 70.02(e) provides a guide for instructions where there is no applicable MAI instruction: “Such instructions shall be simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.” Thus the ultimate test of an instruction not in MAI is whether it follows the substantive law and can be readily understood. Kirkwood Medical Supply Co. v. Ann Patterson Enterprises, Inc., 511 S.W.2d 433, 435 (Mo. App.1974). We note that neither Haycraft nor Boyer uses the term “necessary” and that the phrase “not excessive” is commonly equated with “reasonable”. Webster’s Third New International Dictionary 1892 (1969), states: “Reasonable: being or remaining within the bounds of reason: not extreme: not excessive.” Further, when the term “reasonable” is used it encompasses both the nature of conduct for which the punishment was administered and the severity of that punishment. See 43 A.L.R.2d, § 3 at 472 and cases cited; see generally factors listed in the Restatement Second of Torts, § 150 (1965).

We conclude that instruction No. 3 in form and substance properly framed the ultimate questions of fact that the jury must determine and that inclusion therein of the words “excessive” or “necessary” would merely have been redundant.

Lastly, plaintiff contends that defendant struck her in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States and therefore the punishment was unauthorized and unreasonable as a matter of law. Plaintiff relies on Baker v. Owen, 395 F.Supp. 294 (D.N.C.1975), aff’d, 423 U.S. 907, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). We believe that the issue is adequately answered by the recent case of Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). In that case the Supreme Court stated:

“we find that corporal punishment in public schools implicates a constitutionally protected liberty interest, but we hold that the traditional common-law remedies are fully adequate to afford due process.” Id. at 672, 97 S.Ct. at 1413.

The Court concluded that: “the Fourteenth Amendment’s requirement of procedural due process is satisfied by Florida’s preservation of common law constraints and remedies.” Id. at 683, 97 S.Ct. at 1419.

While in Ingraham, the Court apparently only specifically considered the necessity for notice and hearing, as opposed to the necessity for less formal procedural safeguards such as the presence of the principal, the clear import of the decision is that common law requirements of reasonableness afford the student all the protection required by the due process clause of the Constitution. Since this state, as discussed above, does preserve common law constraints and remedies on discipline of a student by a teacher, no due process violation has been shown.

The judgment is affirmed.

MORGAN, C. J., BARDGETT, DONNELLY, RENDLEN, SIMEONE, JJ., and FINCH, Senior Judge, concur.

WELLIVER, J., not participating because not a member of the court when cause was submitted.

      . Section 162.621, which pertains to a metropolitan school district, provides in part:
      “The board of education shall have general and supervising control, government and management of the public schools and public school property of the district in the city and shall exercise generally all powers in the administration of the public school system therein. . . The board of education may
      (1) Make, amend and repeal rules for the government, regulation and management of the public schools ... in the city, . .
      Section 171.011, which pertains to all school districts, provides in part:
      “The school board of each school district in the state may make all needful rules and regulations for the organization, grading and government in the school district.”

      . We thus conclude that Ingraham sub silencio overrules that part of Baker v. Owen which requires specific administrative safeguards, such as prior notice and hearing, before corporal punishment may be administered.


text:
    In the matter of ADDITIONAL MAGISTRATES FOR ST. LOUIS COUNTY, Missouri. Hon. Ann Quill NIEDERLANDER et al., Intervenors-Respondents, v. ST. LOUIS COUNTY, Missouri, Amicus-Appellant.
    No. 61178.
    Supreme Court of Missouri, En Banc.
    April 25, 1979.

      Thomas W. Wehrle, St. Louis County, Counselor, Clayton, for appellant.
    Douglas R. Beach, Clayton, for respondent.
    Allan F. Stewart, Clayton, Jerry B. Wam-ser, St. Louis, for intervenors-respondents.
   SEILER, Judge.

This is a direct appeal by St. Louis County from an order of the circuit court of St. Louis County increasing by two the number of magistrates in St. Louis County, pursuant to Mo.Const. art. V, § 18 (1945) and § 482.010 RSMo 1969.

On November 17, 1978 a petition was lodged by six members of the executive committee of the St. Louis County Bar Association requesting the number of magistrate judges in St. Louis County be increased from 11 to 13. The petition, signed by 702 registered county voters, including petitioners, stated that pursuant to Mo. Const, art. V, § 18 (1945) and § 482.010 RSMo 1969, the circuit court had the power to hear their petition, that over 500 qualified voters had signed the petition, that the number of cases in the magistrate court had significantly increased in the past year so that now over 73,000 cases are filed in the 11 magistrate districts in the county each year, that it is anticipated the number of new cases filed at the magistrate level will increase under the new judicial article effective January 2, 1979, that each magistrate has an average load of 6,673 cases per year, over 1,000 more than any other county, that there is a need for magistrates to hear certain cases now heard in circuit court, and that the need for additional magistrates is permanent. Notice was published in accordance with § 482.010(3) and art. V, § 18. A hearing was held on December 20,1978. St. Louis County filed a motion to be made a party so as to further advise the court, and filed a motion to dismiss on grounds also asserted on appeal and which will be discussed infra. Judge Ferriss issued an order stating “[mjotion of St. Louis County, Missouri to be made a party to this proceeding granted. St. Louis County, Missouri made a party to this proceeding as amicus and its motion to dismiss argued and overruled.”

Mo.Const. art. V, § 18 (1945) stated:

“There shall be a magistrate court in each county. ... In counties of 100,000 inhabitants or more there shall be two magistrates, and one additional magistrate for each additional 100,000 inhabitants, or major fraction thereof. According to the needs of justice the foregoing number of magistrates in any county may be increased by not more than two, or such increased number may be decreased, by order of the circuit court on petition, and after hearing on not less than thirty days’ public notice. The salaries of magistrates shall be paid from the source or sources prescribed by law.”

Section 482.010, RSMo 1969 stated:

“1. Magistrates, as provided for in this chapter, shall be elected at the general election to be held in 1946, and every four years thereafter, and shall hold their offices for four years, or until their successors are elected or appointed, commissioned and qualified.
“2. In counties of one hundred thousand inhabitants or more there shall be two magistrates and one additional magistrate for each additional one hundred thousand inhabitants, or major fraction thereof.
“3. According to the needs of justice, the foregoing number of magistrates in any county may be increased by not more than two, or such increased number may be decreased, by order of the circuit court, on petition of five hundred qualified voters of the county, and after hearing on public notice to be published in some newspaper of general circulation in the county once each week for three consecutive weeks immediately preceding said hearing. No petition for additional magistrate shall be granted unless the circuit court finds from the evidence heard that the administration of justice requires that the number of magistrates be increased, and that the need for additional magistrate or magistrates is not temporary but appears to the circuit court that a permanent need exists. Such additional magistrates shall be appointed by the governor when authorized by proper order of the circuit court certified to him, and such appointee shall hold office until the next general election at which election a successor shall be elected to hold office for the unexpired term or full term as the case may be, said terms to be identical with that of other magistrates.”

Only respondents put on evidence at the hearing, although appellant made extensive cross-examination of respondents’ witnesses. Robert G. Ruhland, director, department of judicial administration, St. Louis County, presented and discussed statistics concerning the workload in the magistrate courts of St. Louis County for the year July 1,1976 through June 30,1977 as set forth in Office of State Courts Administrator, Judicial Department of Missouri Annual Statistical Report 1977, (1977), exhibit No. 1, and as summarized by Mr. Ruhland in exhibit No. 2. These exhibits show that, although St. Louis County had only 8.94% of all magistrates in Missouri, over 66,000 cases, or 19.38% of all magistrate eases, were filed in that county. The average case load per magistrate was thus 6,673 in St. Louis County, although it was only 3,079 on the average statewide. This was 1,000 more cases per magistrate than were filed in Jackson County, the circuit most similar to St. Louis County, and three times the number of cases per magistrate in the city of St. Louis.

Mr. Ruhland further testified that some magistrates were assigned non-contested divorces from the circuit court in an effort to reduce a backlog in the circuit court of both contested and non-contested cases, but that not enough cases were being processed this way and the backlog continues. However, he also testified that two new circuit judges would take office in January 1979 and that should help relieve the logjam. He did not know the amount of time actually spent by the magistrates on the bench, but stated that greater responsibilities repose in the magistrates once they become associate circuit judges. In addition, municipal courts in St. Louis County would be abolished unless the municipalities elected to keep them as of the effective date of the new judicial article. As of the hearing, December 20, 1978, 63 municipalities had determined to keep their courts, while the remaining 29 had not yet so elected.

In addition, Ms. Francis J. Menke, administrative officer of the Fifth District Magistrate Court of St. Louis County, who had much experience as a courts administrator, stated that a definite increase in court and magistrate time had occurred in the past nine years; that more cases were being litigated, with the default rate in civil cases in the fifth district going from 90% to 60%; that the assignment of small claims court cases to the magistrates since 1976 had added an average of 45-50 cases per week to the magistrate courts; that as many civil cases were filed in division five in the first half of 1978 as in all of 1977; that traffic cases had increased 400% between 1976 and 1978; that the magistrate in the fifth district worked weekends; and that no additional caseload could be handled.

Other witnesses, including Magistrates O’Neill and Eberwein, and two practicing lawyers, testified that litigation had increased in recent years, as had the magistrates’ duties due to small claims court and uncontested divorce assignments; that the size of dockets had increased, and it took much time to call the docket; that there was now a delay in getting a trial setting in a magistrate court, etc.

Mr. Wehrle, counsel for St. Louis County, brought out that the fifth district handled many more civil cases than other magistrate districts in St. Louis County. Thus, it had 3,444 civil and 2,517 traffic cases, while the 10th district had only 470 civil but almost 8,000 traffic cases. He also elicited testimony that under the new judicial system, associate circuit judges would be assigned cases at random, and that this could alleviate the imbalance of cases filed caused by the then current method of hearing traffic cases in the district in which the violation occurred and of allowing lawyers to pick the court in which they wished to file their civil cases. Additionally, Mr. Wehrle noted that while one magistrate stated he could not handle 1500 civil cases a year, other districts handled double that number. There was also testimony that a large number of traffic cases may take as much time as a smaller number of civil cases, and thus that the mere number of cases filed is not conclusive of the magistrate time actually spent.

The respondents elicited testimony as to the effect of the larger number of cases assigned to county magistrates as compared to other magistrates in the state. Thus, Ms. Menke and Magistrate O’Neill testified that there is a correlation between the number of cases filed and time spent on the bench, although Ms. Menke also stated that due to the fact that the same case can take longer or shorter depending on the magistrate and lawyers involved, the number of cases does not necessarily reflect the amount of magistrate time spent. A practicing attorney gave testimony as to the rise in litigated cases and attendant delays. Magistrate Eberwein noted that the number of jury trials had increased, and that he spent about ten hours per day on court work, with about 35 hours per week devoted to time on the bench. All witnesses testified that they believed more magistrates were needed, although Magistrate O’Neill stated that he did not personally feel overworked despite spending about 30 hours per month on small claims cases since 1976 in addition to his other work. Magistrate O’Neill also stated that he did not think the quality of justice had declined due to the increase in work.

On December 21, 1978, Judge Ferriss ruled that the administration of justice required the appointment of two additional magistrates, and he thus ordered the number of magistrates in St. Louis County to be increased from 11 to 13. St. Louis County filed a notice of appeal on December 28, 1978. The two magistrates appointed by the governor pursuant to the circuit court’s order filed a motion to intervene as parties-respondent, which was granted on January 26, 1978.

I.

Respondents filed motions to dismiss the appeal, arguing that this court has no jurisdiction to hear this appeal because (1) neither construction of the constitution nor title to state office are involved; (2) appellant is amicus curiae only and thus has no standing to appeal; and (3) the order of the circuit court was not an appealable order. We shall address these contentions in turn before proceeding with the substantive questions raised.

First, we find that this appeal involves construction of Mo.Const. art. V, § 18 (1945), and as such is properly lodged in this court. The issues raised herein are not moot simply because art. V, § 18 is no longer in force. Intervenors were appointed pursuant to that article and § 482.010(3), RSMo 1969, and are presently serving as associate circuit judges. If we find that their appointment was proper, they will continue to serve; if we find to the contrary, they will not. As such, the construction we give to art. V, § 18 will have a real and continued effect on the status of the intervenors. The issues are not moot. See, e. g., Adamick v. Ferguson-Florissant School Dist., 483 S.W.2d 629, 631, (Mo.App. 1972); Ruggeri v. St. Louis, 429 S.W.2d 765 (Mo.1968). Compare State ex rel. Thompson v. Simmons, 499 S.W.2d 819 (Mo.App.1973). Nor, contrary to respondents’ contention, was construction of the provisions of art. V, § 18 at issue in this case reached in State ex rel. Randolph County v. Walden, 357 Mo. 167, 206 S.W.2d 979 (banc 1947).

Secondly, we disagree that appellant has no standing to appeal. The circuit court’s order making appellant “a party as amicus” has been set out above. Normally, an amicus has no right to appeal because it acts only as a friend of the court and not as a party. See Kansas City v. Kindle, 446 S.W.2d 807 (Mo.1969); State ex rel. Jackson County Library Dist. v. Taylor, 396 S.W.2d 623, 626 (Mo.banc 1965). However, respondents’ own cases state that an amicus is allowed no control over the litigation but must accept the case as he finds it, Robert Williams & Co., Inc. v. State Tax Comm’n of Missouri, 498 S.W.2d 527 (Mo.1973); State ex rel. Jackson County Library Dist. v. Taylor, 396 S.W.2d at 626; Gem Stores, Inc. v. O’Brien, 374 S.W.2d 109, 118 (Mo. Banc 1963). Nonetheless, in this case appellant was permitted to make a motion to dismiss, which was denied, and permitted to cross-examine witnesses. It was afforded the opportunity, although it did not take it, to present evidence in opposition to the appointment of the two additional magistrates, and was permitted to make oral argument. Normally these functions are reserved to parties, and not permitted to an amicus. 3A C.J.S. Amicus Curiae §§ 7, 9d (1973). Usually an amicus acts either as a defender of the court’s dignity and honor where such is impugned, or as an assistant to the court to aid it in resolving a controversy, In re Phi Fathers Educational Ass’n, 239 Mo.App. 1105, 203 S.W.2d 885, 887 (1947). Amicus may also act in the interests of a private client with an interest in the litigation, in which case he is more akin to an intervenor, except that he is not made a party and thus is not bound by the court’s judgment, id. at 887, 889.

However, in this case the appellant was made a party. As such, we conclude that the addition of the words “as amicus” to the order granting intervention cannot defeat appellant’s right to appeal where it was in fact also made a party and treated as a party. See Kansas City v. Kindle, 446 S.W.2d at 818. In that case, involving condemnation, appellant was originally attorney for a number of the defendant-con-demnees, but was given leave to withdraw as their attorney but to appear informally to advise them since they had no other attorney. In order to make the presentation of evidence more orderly, at the court’s request the attorney assisted in its presentation, made objections on behalf of defendants, and so forth. In the course of trial he noted that he was performing his duties for his client. In his motion for a directed verdict he stated that he was an amicus, and filed a motion for fees, granted by the court. This court reversed, stating:

“An amicus curiae is not appointed as the private counsel of parties to an action to represent them in a partisan manner and for their personal use and benefit. .
‘An amicus curiae is not a party and cannot assume the functions of a party, an attorney for a party, or even a partisan.’ 4 Am.Jur.2d Amicus Curiae, § 3, p. Ill
[Here the attorney was] appearing, however, not as an advisor to the court but as a representative of private litigants who had a direct financial interest in the outcome of the case . with the objective in view of winning the case for them.” Id. at 818-19.

As such, he was not entitled to compensation as an amicus, regardless of the fact that the circuit court denominated him as such in granting the motion for fees.

We think that the reasoning in Kindle applies to this case, in which appellant was treated as a party, and in fact made a party, irrespective of the fact that the court also denominated appellant as amicus.

The only remaining question as to the county’s right to appeal is whether the determination of the circuit court was an appealable order. Respondents contend not, arguing that the procedure authorized by Mo.Const. art. V, § 18 and § 482.010(3) was a special constitutional proceeding more akin to a public hearing than to a trial and that the rules of civil procedure, including § 512.020, RSMo 1969 governing appeals, do not apply. As a result, since no right to appeal is given in the constitutional or statutory provisions involved, there is no right to appeal.

We cannot agree. Although art. V, § 18 did set up a unique constitutional authority in the circuit court, nothing in it, or in § 482.010, expressly prohibited the right to appeal otherwise allowed in civil cases to a party aggrieved by a final judgment of the court.

Section 512.020 states in relevant part: “Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his appeal to a court having appellate jurisdiction . . . from any final judgment in the case . . . ” (emphasis added).

Thus, appeal pursuant to § 512.020 must be proper unless the special constitutional nature of the circuit court proceeding makes it inapplicable, as is contended by respondents. However, we are cited no precedent for holding that the constitutional nature of the circuit court’s authority removes it from the confines of § 512.020. Respondents simply argue that prohibition, as used in State ex rel. Randolph County, 206 S.W.2d at 979, or a petition for review, as discussed in State ex rel. Weinstein v. St. Louis County, 451 S.W.2d 99 (Mo.banc 1970) would be the proper remedies. However, the fact that prohibition was found proper in Randolph County, which construed portions of Mo.Const. art. V, § 18 (1945), does not mean that direct appeal is not also permissible. Use of a petition for review in Weinstein, in order to review, under the court’s supervisory power, the juvenile court’s inherent power to hire necessary personnel where such are not provided by conventional channels, cannot affect the county’s right to appeal the judgment in this case. Where, as here, the court acts not pursuant to its inherent power to carry out its functions, but rather pursuant to express constitutional and statutory authority, a petition for review is not appropriate. Gaines v. Grimm, 555 S.W.2d 11 (Mo.banc 1977).

In sum, we find nothing in the cases or the constitutional or statutory provisions cited to make § 512.020 inapplicable. Although the proceeding is somewhat akin to a hearing in that public notice takes the place of service of process, and a petition takes the place of pleadings, in this case as in others the court must make a judicial determination of the need for additional judges, see State ex rel. Randolph County, 206 S.W.2d at 986. To hold that it does otherwise would be inconsistent with the role traditionally played by judges in our system and would blur the division of powers so integral to our constitutional framework, see State ex rel. Weinstein, 451 S.W.2d at 101-02.

The fact that Mo.Const. art. V, § 18 is self-enforcing adds nothing to respondents’ argument for, as we noted in State ex rel. Randolph County, 206 S.W.2d at 986, the legislature had a right to enact legislation to “provide a convenient remedy for the protection of the right secured or the determination thereof, or place reasonable safeguards around the exercise of the right.” The review provided by § 512.020 is both a convenient remedy for the determination of the right to appoint new judges and a reasonable safeguard around the exercise of that right.

Respondents further contend, however, that there is no case or controversy involved herein, as required by § 512.020. Since that section does not refer to “case or controversy”, we presume that respondents mean that the county is not a “party aggrieved.”

The county alleged a direct pecuniary interest in the outcome of the litigation in that it was required to pay all expenses of the magistrate and associate circuit courts except salaries and clerk hire, see supra, note 6. We have already determined that the county is a party. Thus, it is a “party aggrieved” within the meaning of the statute and has a right to appeal. See, e. g., Bank of Belton v. State Banking Board, 554 S.W.2d 451, 453 (Mo.App.1977); Hertz Corp. v. State Tax Comm’n, 528 S.W.2d 952, 954 (Mo.banc 1975); Estate of Soengen, 412 S.W.2d 533 (Mo.App.1967).

II.

Appellant’s first substantive point is that the evidence failed to demonstrate the need for the appointment of two additional magistrates in St. Louis County, as required by § 482.010(3). We note that neither party discussed the proper standard for review in their briefs. However, during oral argument both conceded that a substantial evidence test should apply. We agree. Since we have determined, supra, that this case can be appealed under § 512.020, RSMo 1969, as are other court tried cases, we shall apply the standard of review set out in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). That is, “the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.”

The evidence was discussed in detail in the statement of the facts and will not be repeated here. Appellant contends that statistics are meaningless in themselves, absent a showing that the existing magistrates could not handle the case load, and asks us to infer that since only two of eleven county magistrates testified as to the need for additional magistrates, the others must not feel there is a permanent need for such magistrates. Rather, the county claims, the evidence showed that the judicial system was in a state of flux due to the imminent implementation of the new judicial article, and any testimony as to permanent need had to be merely speculative because it was unknown how many municipalities would send their cases to the new associate circuit judges; what the effect of two new circuit judges would be on the backlog of divorce cases; or what relief the appointment of two new magistrates would bring that a redistribution of case load among the districts would not. It further argues that the mere increase in numbers of cases filed and litigated indicates no problem peculiar to the magistrate courts since more cases are now filed and litigated at all levels of the court system. Thus, the county concludes, while particular districts may be overworked, there is no showing of a permanent need for additional magistrates, as required by § 482.010.

We agree that some of the testimony given was speculative. However, it is also true that in order to show permanent need the witnesses must necessarily have spoken of their expectations as to future caseloads in the courts. Appellants cannot fault respondents for failure to show future need and at the same time ask us to disregard all testimony as to future need because it has not yet occurred and so is speculative. If we find substantial competent evidence that a permanent need for additional judges exists, we must affirm.

Judge Ferriss indicated his agreement with appellant that more than mere statistics must be shown in order to establish that the administration of justice requires additional magistrates, and thus cannot be said to have relied on mere numbers unless no other evidence was given. The summary of the evidence related earlier shows that additional evidence was adduced as to the amount of time particular magistrates spent in court; the large increase in filings and in litigation of cases since 1971 (the last time additional magistrates were appointed); the delay in trial settings; and the inexact correlation between the number of cases filed and magistrate time spent. There was, of course, also contrary evidence, and evidence which was speculative both as to the benefits to be derived from additional magistrates and the increase in workload expected under the new judicial article, and as to any alleviation of workload due to the appointment of two new circuit judges and the expected evening of distribution of cases assigned once the new code took effect. However, we cannot say that there was no substantial evidence on which Judge Ferriss could base his determination that a need for two new magistrates existed.

III.

Appellant’s second substantive contention is that the circuit court could not have found, on December 21, 1978, that a permanent need for two additional magistrates existed, as required by § 482.010, because the office of magistrate was abolished on January 2, 1979, eleven days thereafter. Under the new judicial article, effective on that date, the magistrates became associate circuit judges with new duties; a permanent need for magistrates thus could not exist.

We do not find this argument persuasive. As stated by respondents, the “permanent need” addressed by § 482.010 is the need for additional judges at a particular level of the court system in order better to effectuate the administration of justice. It would be hyper-technical, and would defeat the purpose of the legislature, to conclude that the change in title and certain functions of those judges who were formerly called “magistrates” and are now called “associate circuit judges” could prevent the appointment of two additional magistrates if substantial evidence showed that the need for additional judges performing such functions was permanent. Rather, as appellant itself notes, we think the legislature required that the need appear permanent in order to insure that a temporary rise in workload due to an unusual number of filings over a limited period could not form the basis for an increase in the number of magistrates.

Moreover, we take note of § 478.320, V.A. M.S.Supp.1979, which states in part:

“[i]n addition to the associate circuit judges authorized by subsection 1 of this section, one additional associate circuit judge is authorized for each magistrate which was provided in the county pursuant to the provisions of subsection 3 of section 482.010 RSMo, in effect January 1, 1979. Additional associate circuit judges may be authorized in particular counties by law hereafter enacted.”

This section clearly states that magistrates appointed pursuant to the provisions of § 482.010(3) should become associate circuit judges on January 2, 1979, and reaffirms that § 482.010 was effective through January 1, 1979. This strongly implies that, through January 1, 1979, magistrates who were properly appointed pursuant to § 482.-010(3) would become associate circuit judges, and thus that magistrates could be appointed until that date.

To adopt appellant’s argument that “permanent need” could not be shown on December 21, 1978, nor presumably for some prior period of time, because the office of magistrate would cease to exist 11 days thereafter, could call into question the authority for the appointment of every magistrate appointed under § 482.010(3) since August 3, 1976, the date the people adopted the new judicial article. Since that time it has been apparent that magistrates would become associate circuit judges on January 2, 1979. In light of the above, it is clear that by “permanent need” the legislature meant the permanent need of the administration of justice for judges fulfilling the role fulfilled by magistrates at the time § 482.010(3) was adopted. Appellant’s argument is thus without merit.

V.

Appellant’s final point is that under Mo. Const, art. V., § 27(4)(c), V.A.M.S.Supp.1979 all magistrates must be elected in 1978 in order to be appointed associate circuit judges in 1979 and since the hearing did not take place until December 21, 1978, after the November 7,1978 election, no new magistrates appointed could become associate circuit judges.

The principal relevant provisions of the new constitutional article are:

Art. V., § 27:
“Except as otherwise provided in this article, the effective date of this article shall be January 2, 1979.”
Art. V., § 27(1):
“All judges elected in 1978 shall be sworn into office on January 1, 1979.”
Art. V., § 27(2):
“All magistrate courts, probate courts . shall continue to exist until the effective date of this article at which time said courts shall cease to exist.” (emphasis added)
Art. V, § 27(4)(c):
“In 1978, all magistrates shall be elected as provided by law. On the effective date of this article all magistrates who are then in office shall become associate circuit judges and shall serve out the remainder of their terms as such. . . ” (emphasis added).
Art. V., § 27(20):
“All laws and rules inconsistent with the provisions of this article shall, on the effective date hereof, be and are repealed. Except to the extent inconsistent with the provisions of this article, all provisions of law and rules of court in force on the effective date of this amendment shall continue in effect until superceded in a manner authorized by the constitution or by law.” (emphasis added). Relevant statutory provisions are:
§ 478.320(2) V.A.M.S.Supp.1979:
“In addition to the associate circuit judges authorized by subsection 1 of this section, one additional associate circuit judge is authorized for each magistrate which was provided in the county pursuant to the provisions of subsection 3 of section 482.010, RSMo, in effect on January 1, 1979.” (emphasis added).
§ 482.020(2), RSMo 1969:
“When a vacancy occurs in the office of the magistrate, the governor may supply the same by the appointment of some person competent and qualified, who shall hold his office until the next general election ...”

Also relevant are Mo.Const. art. V, § 18 (1945), § 478.320(2) V.A.M.S.Supp.1979, and § 482.010(3), RSMo 1969, set forth elsewhere in this opinion.

Appellant’s argument is that subsection 27(4)(c) of the new judicial article retroactively overrode § 482.010, RSMo 1969 by providing in its first sentence that a 11 magistrates shall be elected in 1978. Further, the use of the phrase “then in office” in the second sentence of that subsection cannot be read apart from the first sentence, and must refer only to those elected and in office at the effective date of the new article. Since a previously enacted law which conflicts with a new constitutional provision is void, Pogue v. Swink, 364 Mo. 306, 261 S.W.2d 40 (1953), and since seemingly conflicting constitutional provisions must be harmonized, State ex rel. Jones v. Atterbury, 300 S.W.2d 806 (Mo.banc 1957), we must hold, it is urged, that § 482.010(3) became void after November 7, 1978 since no magistrate appointed after that date could be elected in 1978. Further, § 18 of the old art. V must be harmonized by considering it ineffective after November 7, 1978. This reading of the statutes and constitutional provisions is necessary, we are told, in order to effectuate the intent of the legislature to insure that all magistrates be elected immediately before becoming associate circuit judges since after that date St. Louis County associate circuit judges would have greater responsibilities yet would never again take part in a contested election, but could only be retained or not retained in office.

Appellant has misinterpreted the constitutional provisions at issue. Its interpretation would require us to imply repeal of § 482.010 and art. V, § 18; to create a period of time, or “gap”, during which no magistrates could be appointed regardless of the need therefore; and would create uncertainties as to the status of magistrates appointed to fill vacancies left because of the death or retirement of magistrates between November 7, 1978 and January 2, 1979 as well as magistrates who might have been appointed at a time prior to November 7, yet too close to that date to be placed on the ballot. However, article V evidences an intent that continuity, rather than inconsistency, should govern the transition to the new judicial article by providing that all laws, rights and duties previously held or in force and not inconsistent with the new constitutional provisions or subsequent laws or rules should continue in full force and effect. See, e. g., Mo.Const. art. V, §§ 27(7), 27(18), 27(20), 27(2). In addition, repeal by implication is not favored in the law, State ex rel. Aquamsi Land Co. v. Hostetter, 336 Mo. 391, 79 S.W.2d 463 (Mo. 1934), and we will give effect to express provisions in preference to implications, Rathjen v. Reorganized School Dist. R-11 of Shelby County, 365 Mo. 518, 284 S.W.2d 516, 522 (banc 1955).

We think that the new article, including § 27(4)(e), can be read in harmony with art. V, § 18 and § 482.010. The first sentence of § 27(4)(c) provides that all magistrates shall be elected in 1978 as provided by law, and § 27(1) states that all magistrates elected in 1978 shall be sworn into office on January 1, 1979. Therefore, as of January 1, 1979, of those who stood for election in 1978, only those actually elected were sworn into office on January 1, 1979. If the constitution further intended that only these magistrates could become associate circuit judges, it could have provided in the second sentence of § 27(4)(c) that only those “so elected” could become associate circuit judges. However, it instead provided that all those “then in office” on the effective date of the article (January 2, 1979), a more inclusive term, became associate circuit judges. The reason for the change in language is clear.

Even assuming that the constitution wished to insure that the people elect as magistrates in 1978 only those who they felt qualified to become associate circuit judges in 1979, it was also vital to insure that the number of judges not be made fewer on the effective date of the new article simply because some judges might be appointed rather than elected as a result of retirements, or appointments pursuant to art. V, § 18. Thus it provided that the newly elected magistrates be sworn into office on January 1,1979, before the effective date of the article, so that by stating that all “then in office” on January 2, 1979 would become associate circuit judges, not only appointed but also elected magistrates would be included.

This interpretation is further supported by Mo.Const. art. V, § 20 of the new article, which states that all laws inconsistent with the new article were repealed on its effective date. This belies appellant’s contention that either art. V, § 18 of the old constitutional article, § 482.010, or § 482.020(2), RSMo 1969 (under which the governor may fill vacancies), were impliedly repealed after the last general election in 1978.

The legislature must have also so interpreted the new constitution, for it stated in § 478.320(2), V.A.M.S.Supp.1979, that § 482.010(3) was in effect on January 1, 1979 and that an associate circuit judge was authorized for each magistrate appointed pursuant to its provisions.

We thus conclude that, while appellant was a party to the cause below and can properly appeal to this court, its substantive contentions have no merit. The determination of the circuit court was supported by substantial evidence of a permanent need for two additional magistrates, and nothing in the new judicial article requires that the new magistrates could not become associate circuit judges on January 2, 1979. Rather, it provides that they shall become associate circuit judges on that date.

The judgment of the circuit court is affirmed.

MORGAN, C. J., and BARDGETT, DON-NELLY, SIMEONE and WELLIVER, JJ., concur.

RENDLEN, J., dissents.

      . Only ten of the eleven divisions reported their caseload as of the time the report was published. 66,734 cases were filed in these ten districts, averaging 6,673 cases per court. Mr. Ruhland thus assigned an average load of 6,673 to the non-reporting district, making total cases 73,407, and average load 6,673.

      . They had until January 1, 1979 to do so.

      . For the sake of brevity, we shall refer to both petitioners and intervenors-respondents as “respondents”, since they have filed a joint brief.

      . Respondents argue that appellant waived appeal by not objecting to its amicus status. This point has no merit in light of our determination that appellant was in fact a party and not merely an amicus. We note, however, that the county, through Mr. Wehrle, questioned whether the county’s status as amicus rather than an opposing party might affect review by a higher court. The circuit court stated that the term amicus had a fine, long tradition, meant friend of the court, and did not bother him. Mr. Wehrle said that it was fine as long as it meant what the judge said. While the exchange is ambiguous, it is clear that Mr. Wehrle took the judge’s statements as indicating that he could appeal, and thus did not press the point any further. As a result, we cannot say that the county waived any objection to being considered only an amicus.

      . Cf. In re Moore’s Estate, 354 Mo. 240, 189 S.W.2d 229, 233 (1945) (there may be cases in which in the interests of justice one not a party, but aggrieved by the judgment, may appeal, although not in this case); Farmers Ins. Exch. v. Nagle, 190 N.W.2d 758 (N.D.1971) (under statute requiring attorney general to represent state in all cases in which it is interested as a party, court treated state as a party despite motion to intervene only as amicus, where financial interest of state involved).

      . However, as we noted in oral argument, if these magistrates were against the addition they could as easily have been expected to testify at the request of the county as at the request of the executive committee.

      . The court could properly permit intervention as a party since St. Louis County alleged that under § 476.270, RSMo 1969 and § 476.020, V.A.M.S.Supp.1979, all expenditures of the magistrate and associate circuit courts except salaries and clerk hire are payable from the county treasury. Additionally, until St. Louis County entered this case there was no one representing its interests in the controversy. See rule 52.12(a).

      . In light of our resolution of this issue, we need not address respondents’ counterargument that the requirement that a showing of “permanent need” be made is invalid because it limits the right under Mo.Const. art. V, § 18 (1945) to appoint magistrates according to the needs of justice, there being no mention of “permanent” in the constitutional provisions.

      . Appellant agrees that the governor may appoint persons to fill these vacancies, and that the appointees may become associate circuit judges on January 2, 1979, despite the fact that they were not elected to that office. It distinguishes these judges from those appointed under § 482.010(3) by arguing that, as to the former type of vacancy, at least someone had been elected to the office vacated, even if a different person was later appointed and actually became the associate circuit judge. We fail to see how an “office” can be elected, and thus how a judge appointed by the governor to fill a vacancy caused by retirement, death, etc., can be considered “elected” if a judge appointed to fill a “vacancy” caused by the creation of two new judgships pursuant to § 482.010(3) cannot.


author: ANDREW JACKSON HIGGINS, Special Judge. SEILER, Judge,

text:
    Robert HIGGINS and Nella Higgins, Petitioners, v. MISSOURI DIVISION OF FAMILY SERVICES, and the Honorable Judges of the Eleventh Circuit Juvenile Court of Missouri, William M. Turpin, Donald E. Dalton and Fred Rush, and the Juvenile Officer of Said Court, Raymond J. Grush, Respondents.
    No. 61128.
    Supreme Court of Missouri, En Banc.
    April 25, 1979.
    Rehearing Denied May 22, 1979.
    Lea W. Clayton, Clayton, for petitioners.
    William J. Hannah, Pros. Atty., Linda S. Robinson, Asst. Pros. Atty., St. Charles, Glenn E. Robinson, Mo. Div. of Family Services, Jefferson City, for respondents.
   ANDREW JACKSON HIGGINS, Special Judge.

Original proceeding in habeas corpus to obtain juvenile from custody of Division of Family Services. Petitioners, husband and wife, reside in St. Charles County, Missouri. They applied to the Division to become foster parents November 28, 1976, and were approved as such February 3, 1977.

Baby Girl Jane Doe was born and abandoned August 19,1977, in St. Charles County, Missouri. She was taken to St. Joseph Hospital in St. Charles; and a proceeding, “In Interest of Baby Girl Jane Doe,” was initiated by the Juvenile Officer in the Juvenile Division of the Circuit Court of St. Charles County August 19,1977. The Juvenile Court, Honorable Fred Rush, entered an Order August 19, 1977, which recited that complaint had been made by the Juvenile Officer that said child came within the purview of applicable provisions of Section 211.031 RSMo by reason of “abandonment,” and that the Juvenile Court had made preliminary inquiry to determine interests of the public and the child; and directed the Juvenile Officer “to place said child in temporary custody of the Division of Family Services * * * pending hearing and further Order” of the court.

The Juvenile Officer filed the petition envisioned by Rule 114 August 23, 1977, and recited that Baby Girl Jane Doe was in need of care and treatment by the Court within the purview of Section 211.031 RSMo because of her abandonment, and that the child was in the temporary custody of the Division of Family Services. He prayed for the Court’s jurisdiction and such orders, judgments and decrees with respect to her care, custody, maintenance, treatment and education as may be in accordance with law and for the best interest of the child and the public good.

Baby Girl Jane Doe was taken from the hospital by the Division of Family Services and placed in the licensed foster home of Mr. and Mrs. Higgins August 24, 1977, where she received foster care until June 23, 1978, for which Mr. and Mrs. Higgins were paid at the rate of $106 per month.

The Division of Family Services advised Mr. and Mrs. Higgins that Baby Girl Jane Doe would be removed from their foster home June 7, 1978, for placement elsewhere. A representative of the Division went to the Higgins home to get the child June 7,1978, and was advised that Mrs. and Mrs. Higgins were not at home and had taken the child.

Mr. and Mrs. Higgins filed a petition for transfer of custody and to adopt Baby Girl Jane Doe June 7, 1978; and secured a temporary injunction against removal of the child by the Division of Family Services from the Magistrate Court of St. Charles County.

The Circuit Court, Honorable William M. Turpin, entered an order June 23, 1978, which dissolved the temporary injunction issued June 7, 1978. Subsequently, on June 23, 1978, the Division of Family Services removed Baby Girl Jane Doe from the home of Mr. and Mrs. Higgins.

Mr. and Mrs. Higgins petitioned the Missouri Court of Appeals, St. Louis District, June 26,1978, for Writ of Habeas Corpus to be directed to the Division of Family Services. The writ issued June 27, 1978, and was quashed June 29, 1978.

Mr. and Mrs. Higgins filed their petition in this court December 1, 1978, and subject Writ of Habeas Corpus issued December 18, 1978. After pleadings and briefs were settled, the matter came on for hearing April 23, 1979.

Petitioners contend the removal and detention of Baby Girl Jane Doe by the Division of Family Services to be illegal and without color of law; and that the child should be discharged from custody of the Division and placed in custody of the petitioners for adoption.

Respondents contend the writ should be quashed because petitioners fail to show any illegality in the custody exercised by the Division of Family Services.

The applicable law is stated, In re L.G., 502 S.W.2d 33, 35 (Mo.App.1973): “The writ of habeas corpus may be employed to exercise the right of lawful custody, but it may not be employed to interfere with the inherent right and jurisdiction of the circuit courts to determine and award custody of the minor child in cases where they have proper jurisdiction, and in which they have exercised that jurisdiction by making a custody award.” See also In re Wakefield, 283 S.W.2d 467, 471-472[5, 6] (Mo. banc 1975).

The Circuit Court (Juvenile Court) of St. Charles County had jurisdiction of the proceedings involving Baby Girl Jane Doe. She was in St. Charles County “in need of care and treatment” because her parents abandoned her. § 211.031 RSMo.

The circuit court (juvenile court) exercised that jurisdiction when it ordered and placed temporary custody of Baby Girl Jane Doe in the Division of Family Services until further order of the court. Such is the only order with respect to “legal custody,” Rule 110.05a(13), of Baby Girl Jane Doe. Petitioners received Baby Girl Jane Doe from her custodian, Division of Family Services, for foster care for which they were paid, and their Petition for Transfer of Custody preliminary to proposed adoption acknowledges such limitation on their relationship to Baby Girl Jane Doe.

Accordingly, the writ of habeas corpus issued December 18, 1978, is quashed.

BARDGETT, DONNELLY, SIMEONE and WELLIVER, JJ., concur.

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

RENDLEN, J., dissents and concurs in separate dissenting opinion of SEILER, J.

MORGAN, C. J., not sitting.

SEILER, Judge,

dissenting.

The majority opinion denies the writ on the ground that under the law the division of family services is not illegally restraining the infant child. This may be true technically speaking, but if so this case is a grievous example of the juvenile court ignoring what is in the best interests of the child.

The child has yet to have any hearing on what is in her best interests. The child was in the lawful custody of the Higgins family, placed there by the division. It is claimed (and we do not know it to be otherwise) that the Higgins family made known, early and on numerous occasions, their desire to adopt the child. They took care of the child for the first ten months of her life. There is an offer of substantial evidence in the file that the Higgins were good parents, that the child was thriving with them, and that it was detrimental to the child for her to be removed from the Higgins family. There really is no claim by respondents to the contrary.

Yet with only scant notice and with no pretense of a hearing or consideration by any impartial arbiter as to whether to do so was in the best interests of the child, the child was removed from Mr. and Mrs. Higgins and transferred to a new family.

On the day the child was abandoned, on the highway, August 19, 1977, the juvenile officer filed a petition under § 211.081, requesting that the court make a preliminary inquiry. This resulted in an immediate order placing temporary custody in the division of family services. On August 23, 1977, the juvenile officer filed a petition under § 211.031 and § 211.091. This calls for a hearing, § 211.171, and the court has authority to employ the services of qualified medical experts in considering the disposition of the child, § 211.161.

Despite the fact that rule 119.01 requires that a hearing shall be set as soon as practicable after the petition is filed, there has been no juvenile hearing in this case, even though fifteen to sixteen months elapsed before petitioners resorted to habeas corpus in this court.

In the meantime, the child has been with the new family and of course the argument is made that it would now be detrimental to the best interests of the child to change her again from one family to another. The result is that the child’s fate is determined by default, by inaction and by mere passage of time. The procedure followed in this case ignores the best interests of the child and permits grave abuse and arbitrary favoritism, regardless of whether in fact it has occurred here.

      . All statutory references are to RSMo 1969.

      . The Comment to rule 119.01 points out that “[d]elay in adjudication is inimical to the purposes of the Juvenile Code.”


author: PER CURIAM:

text:
    STATE of Missouri, ex rel. the Honorable Joseph P. TEASDALE, Governor of the State of Missouri and Stephen C. Bradford, Commissioner, Office of Administration, State of Missouri, Relators, v. The Honorable James I. SPAINHOWER, Treasurer of the State of Missouri, Respondent.
    No. 61303.
    Supreme Court of Missouri, En Banc.
    May 2, 1979.
    John D. Ashcroft, Atty. Gen., Preston Dean, Ann Covington, Asst. Attys. Gen., Jefferson City, for respondent.
    Rexford H. Caruthers, Thomas E. Tueth, Mark D. Mittleman, St. Louis, amicus curiae, for Board of Education of City of St. Louis.
    Gene J. Boesch, Counsel to Governor, Henry F. Luepke, Jr., Steven A. Muchnick, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, for relators.
   PER CURIAM:

This is an original proceeding in mandamus wherein relators, the Governor of the State of Missouri, Joseph P. Teasdale, and Stephen C. Bradford, Commissioner of Administration seek to compel the respondent, James I. Spainhower, State Treasurer, to withdraw a stop payment order on a check issued to the St. Louis Board of Education in the amount of $1,343,066.34. We have jurisdiction, Mo.Const. art. IV, § 4.

The facts were stipulated to by the parties. For many years prior to July 1, 1978, the St. Louis School Board of Education operated Harris-Stowe College in the City of St. Louis. Harris-Stowe is a four year college operating in the City of St. Louis and specializes in the education and training of teachers. In 1963, §§ 163.171 and 163.181, RSMo were enacted, under the terms of which at the end of each fiscal year the State reimbursed the Board for expenditures made in connection with the operation of Harris-Stowe during that fiscal year. Such reimbursement was paid in an amount as determined by a formula set out in the statutes.

In the second regular session of the 79th General Assembly, C.C.S.H.B. No. 1003 was passed and signed by the Governor. Section 3.060 thereof appropriated to the Department of Higher Education $1,775,000 to provide teacher training courses in all cities having 75,000 or more population maintaining a city teacher training school, “providing that in the event [sic] the funds appropriated herein shall in no event exceed 70% of the total actual operating expenditures of any such school.” (Harris-Stowe is the only such school in the State).

In the same session, S.B. 703 was passed and signed by the Governor on May 31, 1978. S.B. 703 is now set out as §§ 174.300, 174.310, 174.320, 1 Vernon’s Missouri Legislative Service 144-45 (1978). Section 1 of S.B. 703, repealed §§ 163.171 and 178.410, RSMo 1969 and § 163.181, RSMo Supp.1977. S.B. 703 became effective August 13, 1978.

From July 1, 1978, the St. Louis Board of Education has continued, as it did during the prior fiscal years, to operate and staff Harris-Stowe and to provide Harris-Stowe with all supportive services including financial, payroll, auditing, accounting, purchasing, legal, data processing and other services. From July 1, 1978, to the present controversy, the Board has paid out of its funds all other expenses in connection with and for the operation of Harris-Stowe.

Pursuant to S.B. 703, a Board of Regents of Harris-Stowe was appointed in October 1978. As of the time of this proceeding, the campus, building, real estate, furniture, fixtures and other property are still owned by the Board of Education and have not, as yet, been conveyed by the Board to the Board of Regents. The stipulation states that “[t]he Board of Regents of Harris has not, as yet taken over the operation of Harris.”

On October 10,1978, the Board of Education forwarded a letter to the Commissioner of Higher Education requesting the $1,775,-000 under the provisions of C.C.S.H.B. 1003. The letter indicated that since the appropriation cannot exceed 70%, a copy of the budget was also forwarded.

On March 12, 1979, the School Board prepared and forwarded an invoice to the State of Missouri for an amount of $1,343,066.34 which was the amount of expenses which the Board had incurred and paid for the period July 1, 1978 through February 28, 1979 for the staffing and operation of Harris-Stowe.

On March 13, 1979, a special warrant request was submitted by the Department of Higher Education through Mr. Bruce Robertson, Director of Higher Education. The special warrant request was for payment of $1,343,066.34 to the St. Louis School Board.

The Director of Administration approved the special warrant request for payment and prepared a warrant dated March 13, 1979 payable to the St. Louis School Board in the amount of $1,343,066.34. The warrant was signed by Commissioner Bradford and by the respondent as Treasurer. By said signatures on the warrant, the warrant was converted into a check drawn on a depository of state funds for payment to the School Board. On March 13, the check was delivered to the Board and deposited in its account.

On March 15,1979, the respondent caused a document to be delivered to the depository whereby he ordered the depository bank to stop payment on the check.

On March 16, relator, Governor, called upon the respondent to withdraw the stop order, but the respondent refused to do so.

On March 19, 1979, relators, Governor and the Commissioner of the Office of Administration filed their petition in mandamus in this court. We issued our alternative writ. The cause was briefed by the parties, the Board of Education filed an amicus brief and the case was argued April 9, 1979.

Respondent contends that:

(1) There is no statutory authority for the St. Louis Board of Education to operate Harris-Stowe and provide funding therefor or to make payments to Harris-Stowe (the statutory authority having been repealed) because there is no valid appropriation from which to reimburse the Board; and (2) The payment to the Board is “inappropriate” because C.C.S.H.B. 1003, § 3.060 states that the payment made by the State shall not exceed 70% of the total operating expenditures of Harris-Stowe for the fiscal year and that to insure that the payment does not exceed 70% it would be appropriate to wait until the operating expenditures for fiscal 1978-1979 are all known.

In effect the respondent’s contention is that since S.B. 703 repealed §§ 163.171 and 178.410, RSMo 1969 and § 163.181, RSMo Supp.1977, there is no statutory authorization for the Board of Education to operate Harris-Stowe, to pay out funds to the college and to be reimbursed for expenditures so that the appropriation is invalid.

Respondent argues that S.B. 703 repealed §§ 163.171, 178.410 and 163.181 which authorized the Board to operate Harris-Stowe and provide funding and then obtain reimbursement according to the formula contained in the statutes. By the repeal of these sections and the passage and adoption of S.B. 703, establishing a Board of Regents, respondent contends that “there is absolutely no authority for the Board to operate Harris-Stowe.” “Apparently the Board has continued to provide funding and now expects reimbursement. . . . Respondent submits that, because there is no statutory authority for the funds, the funding was gratuitous and cannot be reimbursed under the present litigation.”

We disagree. S.B. 703 is a comprehensive statute dealing with the State take-over of Harris-Stowe College. It provides that, the State shall, effective July 1, 1978 provide the necessary funds to fully staff and operate Harris-Stowe College. S.B. 703 provides that prior to October 17, 1978, the Governor shall, with the advice and consent of the senate, appoint a six member board of regents to assume the general control and management of Harris-Stowe. This bill provides that “[t]here shall be a period of orderly transition which shall begin with the appointment of the board of regents, during which the St. Louis Board of Education shall convey by gift . . the property of the college and during which the Board shall continue to provide necessary “supporting services” to the college at its own expense. The law provides that the transition period shall terminate no later than July 1,1979, at which time the regents shall be responsible for every aspect of the college’s operation.

Although S.B. 703 formally repeals §§ 163.171, 178.410 and 163.181, it does not follow that the Board of Education does not have authority to operate Harris-Stowe during the transition period, nor does it mean that the Board may not pay out its funds to operate the college or receive reimbursement. The Senate Bill implies otherwise.

Clearly implied in this statute, not only from the wording thereof but from the practicalities of the situation, is that during the time of the transition period until July 1, 1979, the St. Louis Board of Education has the power, right and duty to operate Harris-Stowe. The Board has operated Harris-Stowe since 1857. Senate Bill 703 does not contemplate the closing or shutting down of the college during the transition period and does not contemplate the closing of the school either prior to or after the appointment of the Board of Regents. The General Assembly by adopting S.B. 703, did not contemplate the closing of the school but provided for an “orderly transition” period until the Board of Regents could be responsible for every “aspect” of the college’s operation. Surely the General Assembly did not by the adoption of S.B. 703 relegate Harris-Stowe to a legal limbo during the transition period. Hence, the logical and authorized entity to operate Harris-Stowe during the transition period must be and is the St. Louis Board of Education which operated the college for so many prior years. Since the legislation provides for a transition period before the Board of Regents becomes responsible for every aspect of the operation of Harris-Stowe, the only authorized and legal entity to operate Harris-Stowe is the St. Louis Board of Education. Hence, the Board having such legal authority, the appropriation of $1,775,000 was a valid appropriation for reimbursement of expenses incurred by the St. Louis Board of Education in the operation of Harris-Stowe and the Board is the proper payee of a check for reimbursement.

Respondent contends that since C.C.S.H.B. 1003, § 3.060 places a limitation of 70% of the total actual operating expenditures of Harris-Stowe, the expenditure is unauthorized until it is determined at the end of the fiscal year that the expenditure is within the limitation of the appropriation. We do not agree. The Governor, under the authority of Mo.Const. art. IV, § 27, has the power to control the rate at which an appropriation is expended during the period of appropriation. S.B. 703 does not, like the earlier statutes, provide for funding at the end of the fiscal year. However, the 70% limitation can and must be complied with, and the special warrant request and the check are infirm in this regard.

Section 3.060 of C.C.S.H.B. 1003 specifies that the appropriation to the Department of Higher Education for Harris-Stowe College shall not exceed “70% of the total actual operating expenditures” (emphasis added) of that school. This court has carefully guarded the constitutional command not to spend the people’s money' in a manner other than authorized by an appropriation law. See, e. g., State ex rel. Gibson v. Grimm, 540 S.W.2d 17 (Mo. banc 1976), cert. denied, 430 U.S. 930, 97 S.Ct. 1548, 51 L.Ed.2d 773 (1977); State ex rel. McKinley Pub. Co. v. Hackmann, 314 Mo. 33, 282 S.W. 1007 (banc 1926); State ex rel. Kessler v. Hackmann, 304 Mo. 453, 264 S.W. 366 (1924). More particularly it has long been the law of this State that appropriation acts must be strictly construed. State v. Weatherby, 350 Mo. 741, 168 S.W.2d 1048 (banc 1943); Meyers v. Kansas City, 323 Mo. 200, 18 S.W.2d 900 (banc 1929). Compliance with the law is of course required to assure the integrity of the appropriation process. Under the controlling appropriation act under consideration, the Department of Higher Education was permitted to request only 70% of the “actual operating expenditures.” It stands admitted that the “actual operating expenditures” for which reimbursement was requested in this litigation was $1,343,-066.34. The amount of $940,146.44 (70% of $1,343,066.34) could have been properly paid at the time of the original certification.

In State ex rel. Cranfill v. Smith, 330 Mo. 252, 256, 48 S.W.2d 891, 892-93 (banc 1932), this court said:

“Mandamus is not a writ of right. Its issuance lies in the sound judicial discretion of the court. Before granting the writ the court will look to the public interest which may be concerned, and act in view of all the existing facts and with due regard to the consequences.”

We conclude that there are no prohibitions, either constitutional or statutory, which prohibit the funds appropriated by C.C.S.H.B. 1003, § 3.060, from being paid in installments provided only that the amounts paid by the State shall not exceed 70% of actual expenditures made for the operation of Harris-Stowe College and provided further that total State payments shall not exceed the amount appropriated by the Legislature.

The amount in dispute, represented by the original check for $1,343,066.34, on Motion of the Treasurer was ordered deposited by the Treasurer in a special trust account to bear interest and to be held by the Treasurer subject to further order of this court.

The Treasurer is ordered to terminate and dissolve the trust created pursuant to order of this court dated March 26,1979 and to redeposit the principal and all accrued interest to the appropriate account of the Treasury of the State of Missouri.

At the end of any convenient fiscal period during fiscal 1978-1979, the St. Louis Board of Education is entitled to 70% of any sums expended during said period for the operation of Harris-Stowe College and, upon certification of a request in the same manner as the original request herein was certified, the same should be paid provided only that payments made by the State shall in no event exceed the total sum of $1,775,000, the amount appropriated by C.C.S.H.B. 1008, § 3.060.

The alternative writ of mandamus is quashed.

The court, at the instance of the parties, considered this case a matter of urgency. Hence, the rules are suspended and any motion for rehearing shall be filed on or before noon, Monday, May 7, 1979.

All concur.


author: PER CURIAM.

text:
    Favis Clay MARTIN, Plaintiff-Appellant, v. CIRCUIT COURT OF the CITY OF ST. LOUIS, Missouri, Lester A. Aubuchon and Celina Aubuchon, Defendants-Appellees.
    No. 37269.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Oct. 17, 1978.

      Daphne A. Carter, The Legal Aid Society of the City & County of St. Louis, St. Louis, for plaintiff-appellant.
    Mark I. Bronson, Newman & Bronson, St. Louis, for defendants-appellees.
   PER CURIAM.

Favis Clay Martin, father of Michael Henry Clay Martin, appeals from an order of the Circuit Court of the City of St. Louis dismissing, for failure to state a claim upon which relief could be granted, his pro se “bill for review” which sought vacation of an adoption decree granted as to his son Michael. As grounds for the vacation, appellant alleges the invalidity of a Texas court order terminating his parental rights.

Appellant’s brief fails to comply with Rule 84.04(d) which provides that the “points relied on shall state briefly and concisely what actions or rulings of the trial court are sought to be reviewed and wherein and why they are claimed to be erroneous . . .” (Emphasis added).

Each of appellant’s three points relied on states briefly, although very generally, what action of the trial court is alleged to be erroneous, but fails to say concisely wherein and why the court erred.

Appellant’s first point relied on reads: “The court erred in denying appellant’s bill for review because appellant stated a claim for which relief could be granted.” However, appellant fails to state specifically what allegations in his “bill for review” support his contention that the trial court erred in dismissing his pleading.

Point II reads: “The court erred in granting full faith and credit to an invalid Texas termination order which denied appellant procedural and substantive due process.” Again, the point contains no specific reasons to support this conclusory claim, nor any basis, factual or otherwise, for a refusal by the courts of Missouri to grant full faith and credit to the Texas judgment. In other words, appellant failed to indicate wherein and why the court erred.

In Point III of his brief, appellant alleges error in the failure of the trial court to appoint counsel for appellant in prosecuting his “bill for review” but fails to say why this is alleged to be error.

The requirements of Rule 84.04(d) are mandatory, Bell v. Bell, 538 S.W.2d 733, 735[1] (Mo.App.1976), and must be strictly applied. Matter of Estate of Langford, 529 S.W.2d 31, 32[3] (Mo.App.1975). Noncompliance with this rule preserves nothing for review, Powers v. Powers, 544 S.W.2d 339, 340[3] (Mo.App.1976), and justifies a dismissal of the appeal. Cope v. McClain, 529 S.W.2d 6, 7 (Mo.App.1975).

The Missouri Supreme Court in a recent decision has explained in detail what is required by Rule 84.04(d). In Thummel v. King, 570 S.W.2d 679 (Mo. banc, 1978), the court refused to consider nine points raised by appellant because they failed to state wherein and why the court erred.

In clarifying the reasons for, and emphasizing the importance of, the requirements of Rule 84.04(d), the Supreme Court said:

The requirement that the point relied on clearly state the contention on appeal is not simply a judicial word game or a matter of hypertechnieality on the part of appellate courts. It is rooted in sound policy. Perhaps the most important objective of the requirement relative to the points relied on is the threshold function of giving notice to the party opponent of the precise matters which must be contended with and answered. Absent that, it is difficult, at the very least, for respondent’s counsel to properly perform his briefing obligation. ... In addition, such notice is essential to inform the court of the issues presented for resolution. Clear statement of the points relied on facilitates full advocacy and affords the opportunity for clarification by meaningful questions directed to the issues stated in the points relied on. If the appellate court is left to search the argument portion of the brief (or even worse, to search the record on appeal) to determine and clarify the nature of the contentions asserted, much more is at stake than a waste of judicial time (even though in this time of increased litigation and heavy caseloads, that alone is sufficient justification for the rules). The more invidious problem is that the court may interpret the thrust of the contention differently than does the opponent or differently than was intended by the party asserting the contention. If that happens, the appellate process has failed in its primary objective of resolving issues raised and relied on in an appeal.

Thummel, supra, page 686.

Appellant’s brief contains many pages of argument on broad principles of law relating to the Texas statute providing for termination of parental rights, appellant’s procedural and substantive due process rights, and the fundamental and basic rights of a parent in his child. However, appellate courts have no obligation to seine an appellant’s brief and the record on appeal to determine reasons for alleged error that should have been included by appellant in his points relied on. Griffith v. State, 504 S.W.2d 324 (Mo.App.1974). The brief is fatally defective in its failure to provide respondent and this court with specific allegations of error as required by Rule 84.-04(d).

The appeal is dismissed.

All the Judges concur.