author: KELLY, Judge.

text:
    CITY OF KIRKWOOD, Missouri, a Municipal Corporation, Plaintiff-Appellant, v. CITY OF SUNSET HILLS, Missouri, a Municipal Corporation, Defendant-Respondent.
    Nos. 40603, 40676, 40677, 40735, 40804 and 40863.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 21, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 15, 1979.
    Application to Transfer Denied Dec. 6, 1979.

      Robert B. Hoemeke, Evans, Hoemeke, Casey & McGhee, St. Louis, for plaintiff-appellant.
    Robert C. Jones, Ziercher, Hocker, Tzin-berg, Human & Michenfelder, Clayton, for defendant-respondent.
   KELLY, Judge.

This is a consolidated appeal from two judgments entered in two divisions of the St. Louis County Circuit Court the subject matter of which, reduced to simple terms, is whether the City of Kirkwood (hereinafter Kirkwood), a city of the third class, may legally acquire and operate a public swimming pool and recreational facility within the city limits of the City of Sunset Hills (hereinafter Sunset Hills), a city of the fourth class.

The facts are that the two cities adjoin, Kirkwood’s southern city limits abutting onto the northern city limits of Sunset Hills. . Kirkwood commenced negotiations with Mr. and Mrs. Kermit Reed for the purchase of their property known as Club Fountainbleau which is located within the city limits of Sunset Hills but which abuts Emmenegger Nature Park which is situate within the city limits of Kirkwood, and owned by Kirkwood. These negotiations continued over a period of approximately one and one-half years and while they were in progress representatives of Kirkwood met on two occasions with representatives of Sunset Hills in January of 1977 for the purpose of discussing the possibility of Kirkwood and Sunset Hills purchasing and using the Reed property jointly. As early as September 17, 1976, Sunset Hills had informed Kirkwood of its own interest in purchasing the property.

At this stage of the negotiations Kirk-wood officials proceeded with an initial reading of an ordinance authorizing the purchase of the Club Fountainbleau property at a regularly scheduled meeting of the Kirkwood City Council. The second and third readings of the ordinance were to take place at the meeting of the Kirkwood City Council on February 3, 1977.

On January 26,1977, the Mayor of Sunset Hills sent a letter informing Kirkwood officials that Sunset Hills was not interested in purchasing the property, and on February 1,1977, the Sunset Hills Board of Aldermen introduced Ordinance No. 622, read it three times, and enacted it. According to the terms of this ordinance the creation, maintenance or operation of any public recreational facility, or swimming pool within the City, except by the City itself, was prohibited. Excluded from the prohibition of the ordinance was property being so used by a private owner or operator at the time of its adoption. A police officer of Sunset Hills delivered a copy of the ordinance to the Kirkwood officials on February 2,1977, and at the regular meeting of the Kirkwood City Council on February 3,1977, the Kirk-wood ordinance for the acquisition of the property was tabled and the City Attorney was directed to contest the validity of Sunset Hills Ordinance No. 622 and to obtain a determination of Kirkwood’s rights were it to purchase the Club Fountainbleau property.

On February 25,1977, Kirkwood instituted a suit praying for a declaration of its rights under §§ 77.140 and 90.010 RSMo. 1969 and whether it could acquire property for parks or pleasure grounds outside its city limits, and if so, its rights to control the use of said property for parks or pleasure grounds immune from the jurisdiction of the city wherein said property should be situate, and for a declaration that Ordinance No. 622 of Sunset Hills was void, illegal and without force and effect.

After the issues in this action were joined, the parties each filed motions for summary judgment, but Kirkwood alone supported its motions with affidavits. Sunset Hills submitted exhibits. The motions were submitted to the trial court without further evidence, and on December 21,1977, a judgment was entered sustaining both parties’ motions. This judgment declared that § 90.010 gave Kirkwood the power to acquire, for the purposes mentioned therein, property located in Sunset Hills; it did not rule on that portion of Kirkwood’s prayer with respect to its rights to control the use of said parks or pleasure grounds immune from jurisdiction of Sunset Hills unless its holding can be construed as a ruling on that issue. As to the validity of Ordinance No. 622, the judgment reads:

Ordinance 622 of the City of Sunset Hills cannot be and is not now by this judgment being held invalid under the general attack levied against it as being ‘without legal force or effect’ and ‘void, illegal and contrary to the laws of the State of Missouri.’ Whether it could be successfully attacked on other or more specific grounds is not being ruled by this judgment. Nor does this Court rule any issue which might be raised after action by the defendants under Ordinance 622.

Thereafter, on January 26, 1978, Kirk-wood passed Ordinance No. 6231 authorizing the purchase of the Club Fontainbleau property and on February 17, 1978, the sale was closed. A pool care contract was entered into with a professional maintenance company and letters were sent to Sunset Hills’ Director of Public Health and City Attorney informing them of the intention of Kirkwood to open the pool facility for the summer of 1978.

On May 5, 1978, Sunset Hills filed an action seeking a temporary restraining order, a preliminary injunction and a permanent injunction to prevent Kirkwood from proceeding with the opening of the pool and the operation of the recreational facility. No temporary restraining order or temporary injunction issued, and the cause came on for trial on May 24, 1978. The trial court took judicial notice of the file in the prior declaratory judgment action, evidence was adduced, and on June 29,1978, a judgment was entered enjoining Kirkwood permanently from creating, maintaining or operating a public recreational facility or public swimming pool on the property.

Kirkwood filed a timely notice of appeal from this judgment on August 24,1978, and this court granted it leave to take an appeal out of time from the judgment in the declaratory judgment action pursuant to the provisions of Rule 81.07 on July 6,1978, and on November 28, 1978, ordered the appeals consolidated.

The judgment in the declaratory action was entered pursuant to motions for summary judgment filed by Kirkwood and the defendants therein. The general rule with respect to review of a summary judgment is that the reviewing court must determine whether there is an issue of fact to be tried or whether the moving party is shown by unassailable proof to be entitled to judgment as a matter of law, Rule 74.-04(e); it is equivalent to reviewing a court-tried or equity proceeding, and if, as a matter of law, the judgment is sustainable upon any theory, the judgment of the trial court must be sustained. Kaw Valley State Bank & Trust v. Commercial Bank of Liberty, N.A., 567 S.W.2d 710, 712[1] (Mo.App.1978); Kerr v. Grand Foundries, Inc., 525 S.W.2d 783, 784[2] (Mo.App.1975); Swink v. Swink, 367 S.W.2d 575, 577[2] (Mo.1963).

From our vantage point, we conclude that while the trial court’s judgment declared that Kirkwood had the power to acquire the property pursuant to the authority of § 90.010 for the purposes mentioned therein despite the fact it was located within the city limits of Sunset Hills, it did not rule on the question whether Kirkwood had the right to control the use and operation of the property acquired, immune from the jurisdiction of Sunset Hills as prayed in Kirkwood’s petition. Nor did it rule on the validity of Ordinance No. 622. We derive this conclusion from the wording of the judgment wherein the trial court said: “Ordinance 622 of the City of Sunset Hills cannot be and is not now by this judgment being held invalid under the general attack levied against it as being ‘without legal force or effect’ and ‘void, illegal and contrary to the laws of the State of Missouri.’ Whether it could be successfully attacked on other grounds is not being ruled by this judgment. Nor does this court rule any issue which might be raised after action by the defendants under Ordinance 622.”

The first point to be reviewed is whether the trial court erred in failing to declare Ordinance No. 622 of Sunset Hills invalid.

As best we can discern from the judgment and a memorandum filed therewith by the trial court, this question was not reached because the trial court was of the opinion that Kirkwood’s pleadings were not sufficiently specific to entitle this issue to consideration. In the memorandum the trial court said: “Ordinance 622 might have been challenged on specific grounds which the court refrains from delineating.”

While it has been held that allegations such as “illegal, invalid, void, unlawful, unconstitutional, improper, arbitrary and capricious,” when unsupported by pleaded facts to show their basis, are conclusions of the pleader and not statements of fact and not to be considered whether a claim or a defense have been stated, State ex rel City of Creve Coeur v. St. Louis County, 369 S.W.2d 184, 187[1] (Mo.1963), and that when one relies upon unreasonableness to avoid a city ordinance facts which render it unreasonable must be alleged, Holland Furnace Company v. City of Chaffee, 279 S.W.2d 63, 66[2] (Mo.App. 1955), we conclude that Kirkwood’s petition did, in fact, allege sufficient facts to point out the legal issues involved in this declaratory judgment action.

In determining the sufficiency of plaintiff’s petition to state a claim for declaratory judgment, we must accord it the benefit of every favorable and reasonable intendment the fact well pleaded will permit. A petition is not ordinarily held insufficient merely because it lacks definiteness in its allegations, and whether a petition for declaratory judgment is sufficient depends upon whether its averments invoke substantial principles of law which entitle the plaintiff to relief. Schmitt v. City of Hazelwood, 487 S.W.2d 882, 884(3, 4] (Mo.App. 1972).

Viewed in the light of these principles, we conclude that Kirkwood’s petition invokes substantial principles of law entitling it to the relief sought. The petition contains allegations of Kirkwood’s intent to acquire the tract of real property described in an Exhibit to the petition for the purpose of operating a recreational facility thereon pursuant to the authority of §§ 90.010 and 77.140; the petition alleges the adoption of Ordinance No. 622 by the City of Sunset Hills, the effect of which is to thwart the exercise of the grant of authority to acquire the property pursuant to the power granted Kirkwood by these statutes, and asserts, that it is for these reasons that the Ordinance is without legal force or effect and is “void, illegal and contrary to the laws of the State of Missouri.” (emphasis supplied).

The law in this state is that an ordinance which contravenes the statutes of Missouri is void. Trantina v. Board of Trustees of the Firemen’s Retirement System, 503 S.W.2d 148, 152(4] (Mo.App.1973); State ex rel. Burnau v. Valley Park Fire Protection Dist., 477 S.W.2d 734, 735(2] (Mo.App.1972). If, as Kirkwood alleges, Sunset Hills’ ordinance contravenes §§ 90.010 or 77.140, or both, it is void, illegal and contrary to the laws of the State of Missouri.

The resolution of the conflict between these two protagonists revolves around the powers a city enjoys over the territory within its boundaries, and how far it can go in the exercise of its powers to promote the health, safety, morals, or the general welfare of the state. A municipal corporation is a creature of the legislature possessing only those powers expressly granted, or those necessarily or fairly implied in or incidental to express grants, or those essential to the declared objects of the municipality, and any reasonable doubt as to whether a power has been delegated to a municipality is resolved in favor of non-delegation. Anderson v. City of Olivette, 518 S.W.2d 34, 39[4, 5] (Mo.1975).

Kirkwood considered Ordinance No. 622 to be a zoning ordinance enacted pursuant to the powers delegated to Sunset Hills by Ch. 89; Sunset Hills’ counsel, in oral argument, stated that he too thought it was a zoning ordinance. The cases cited by the parties all involve zoning ordinances. The case was presented on summary judgment on that theory and was so argued in this court. Therefore, we shall review the case in that light.

The Zoning Enabling Act, §§ 89.-010-89.140, constitutes the sole source of power and the measure of authority for cities, towns and villages in zoning matters, Huttig v. City of Richmond Heights, 372 S.W.2d 833[1] (Mo.1963), and contemplates the division of a city by legislative regulation into districts, and the prescription and application in each district of regulations having to do with structural and architectural designs of buildings and of regulations prescribing the use to which buildings within designated districts may be put. See §§ 89.010-89.140 RSMo. 1969. However, the power to regulate granted by the Zoning Enabling Act, by the very terms of the Act, is limited to “buildings, structures and land for trade, industry, residence or other purposes.” The terms “trade, industry, residence . . . ” all relate to private property and the words “other purposes” in the law has been held not to extend the zoning power to restrict or limit the use of public property for public purposes. State of Missouri ex rel. Askew v. Kopp, 330 S.W.2d 882, 888[6] (Mo.1960); State ex rel. St. Louis Union Trust Co. v. Ferriss, 304 S.W.2d 896, 900 (Mo.banc 1957).

This is not the first case in which the power of a Missouri municipality to zone public uses has been questioned. State ex rel. St. Louis Union Trust Co. v. Ferriss, supra, decided that a zoning ordinance of the City of Ladue restricting the location and erection of school buildings to certain areas within the city limits could not deprive the school district of its power to condemn a tract of land for the purpose of erecting school facilities thereon despite the fact the tract was situated in an area in which the erection of any schoolhouse was prohibited.

There are also two cases holding that sewage disposal facilities could be constructed by a city outside its city limits pursuant to power conferred upon said cities by state law despite the fact the construction of said facilities violated zoning restrictions of the counties in which the sewage disposal facilities were to be constructed. State ex rel. Askew v. Kopp, 330 S.W.2d at 888 and State ex rel. Gower v. Gee, 573 S.W.2d 107, 112[3] (Mo.App.1978). And in Appelbaum v. St. Louis County, 451 S.W.2d 107, 112[3] (Mo.1970) the construction of an incinerator and landfill on land within the Villages of St. John and Bel-Ridge by St. Louis County was permitted despite the fact that the zoning ordinances of the Villages involved barred such facilities.

In only one case was a different result reached. In St. Louis County v. City of Manchester, 360 S.W.2d 638, 642[5] (Mo.banc 1962), the zoning ordinances of St. Louis County were held to be lawful restrictions upon the location of a sewage disposal plant and related facilities by a fourth class city in the unincorporated area of said county.

In Union Electric Company v. City of Crestwood, 499 S.W.2d 480 (Mo.1973) the question presented was whether a municipal ordinance prohibiting the construction above ground of utility transmission lines was valid. The Supreme Court reversed the trial court’s judgment in a declaratory judgment action upholding the ordinance because it invaded the area of regulation vested in the Public Service Commission by statute and therefore the municipality exceeded its authority and the ordinance was invalid.

In a subsequent proceeding involving the same protagonists, Union Electric Company v. City of Crestwood, 562 S.W.2d 344 (Mo.banc 1978), the Supreme Court affirmed a judgment of the trial court in favor of the electric company declaring the city was without authority to regulate by its zoning ordinances the location of an intercity electric transmission line and enjoining the city from interfering with the use by the electric company of a railroad right-of-way for that purpose.

None of the cases heretofore cited have considered the question presented here, i. e., whether the power conferred upon cities, and more especially a city of the third class, to acquire land for the purpose of establishing a “park or pleasure grounds” not within its city limits, is subject to a municipal ordinance of an adjoining city in which said land to be acquired is located, when the establishment and operation of a park or pleasure grounds would be in violation of an ordinance prohibiting the operation of parks and pleasure grounds by anyone other than the host city.

Kirkwood relies on the authority of § 90.010 which empowers any city to acquire property for the purpose of establishing a park or pleasure grounds by gift, purchase or condemnation of lands within such city or within one mile thereof, and § 77.140 which authorizes a city of the third class to purchase and hold grounds for public parks within the city, or within three miles thereof. The trial court, in its judgment, decided that Kirkwood had the power to acquire for the purpose of establishing a park or pleasure grounds property located in Sunset Hills; it did not decide what powers in this respect Kirkwood enjoyed under § 77.140. On appeal, however, Kirk-wood does not raise this failure to rule on § 77.140, except to incorporate in Point I that the trial court erred in not holding •Ordinance No. 622 invalid. Kirkwood’s allegation is that said ordinance is an effort to countermand a power conferred upon Kirkwood by that Section as well as § 90.-010.

In deciding the extent, if any, to which the use of land by a governmental unit is subject to applicable zoning regulations the courts of this nation have used varying tests. One approach has been to rule in favor of the superior sovereign. See Aviation Services Inc. v. Board of Adjustment, 20 N.J. 275, 119 A.2d 761 (1956). A second test is to determine whether the institutional use proposed for the land is “governmental” or “proprietary” in nature. See City of Scottsdale v. Municipal Court, 90 Ariz. 393, 368 P.2d 637 (1962), and Tabor v. City of Benton Harbor, 280 Mich. 522, 274 N.W. 324 (1937). A third test is one referred to as the “Power of Eminent Domain Test.” See Mayor of Savannah v. Collins, 211 Ga. 191, 84 S.E.2d 454 (1954). A fourth test is known as the “Statutory Guidance Test.” See Magilner v. Metropolitan Plan Commission, 236 Ind. 298, 140 N.E.2d 220 (1957). A test of more recent origin, and one which is more appealing to us, is known as the “Balancing of Interests Test.” See Rutgers State University v. Piluso, 60 N.J. 142, 286 A.2d 697 (1972); Note, 84 Harv.L. Rev. 869 (1971).

In State ex rel. St. Louis Union Trust Co. v. Ferriss, supra, the court relied on the constitutional provision that the general assembly establish and ' maintain public schools, Article IX, Sec. 1(a) of the Constitution of Missouri and § 165.100 RSMo. 1949, which specifically provided that the school district of the City of Ladue should locate sites for schoolhouses and could acquire said sites by condemnation if it could not agree with the owner thereof as to the price to be paid for the same, or for any other cause could not secure a title thereto. A close reading of the decision reveals that the court applied both the power of eminent domain test and the statutory guidance test to resolve the issue.

The court concluded that it was too clear to admit of argument that the school district was vested by an express grant from the legislature with the absolute and exclusive power to select, locate and procure by condemnation the site in question unless the Legislature, by enactment of Chapter 89, invested the city with the police power of the state to restrict the selection and location of school sites by its municipal zoning laws enacted pursuant to the authority of the power conferred upon it by Chapter 89.

In reaching this conclusion, the court relied on the eminent domain test to some extent at least, when it pointed out that the power of eminent domain is inherent in sovereignty and exists in a sovereign state without necessity of mention, State ex rel. St. Louis Union Trust Co. v. Ferriss, supra, at 898; that it is superior to property rights, and that the right to exercise it is exclusively a legislative prerogative, subject only to such limitations as are fixed by the constitution itself. In this state the only constitutional limitation placed upon the Legislature in the exercise of this power is that imposed by Article I, Sec. 26, that private property may not be taken or damaged for public use without just compensation.

The court then turned to a consideration of the impact of Chapter 89, Section 89.020 on the right of the school district to locate the school facilities in an area from which it was barred by the zoning laws of the municipality. Quoting from State ex rel Helsel v. Board of County Commissioners of Cuyahoga County, 79 N.E.2d 698, 704 (Ohio Com.P1.1947), the court said: “To suppose that zoning ordinances may limit or prevent the public use for which land is taken is to invest municipalities with power to restrict the exercise of the power of eminent domain . . . Zoning ordinances are upheld on the theory that they bear a real and substantial relation to the public welfare. Their validity rests upon the principle that the exercise of rights to the ownership of private property may be restricted in the interest of the general welfare of the inhabitants of the municipality. Through the medium of zoning ordinances municipalities may insist that private rights in real property yield to the general good of the community, but the presumption is that the use of public property for public purposes is designed to promote the general welfare also, and no case or textual authority has been cited, that supports the view that municipalities by zoning ordinances may restrict or limit the use of public property for public purposes.” (Original emphasis) 304 S.W.2d 900-901.

In distinguishing cases cited by the city on the grounds that they involved proprietary functions, the court pointed out that “[t]he selection, location, procurement of a site through condemnation and operation of a public school is a governmental and not a proprietary function.” 304 S.W.2d 902.

The next case, State ex rel. Askew v. Kopp, supra, decided the question whether a local regulation — a county zoning ordinance restricting the location of sewage disposal plants in an agriculturally zoned district of Jackson County — enacted under the police power granted to the county court could be applied to the activities of a fourth class city outside its corporate limits under the police power granted the board of aldermen to secure the general health of the city. The city, pursuant to the authority of two statutes, §§ 79.380 and 71.680, RSMo. 1949, granting the power to the board of aldermen of fourth class cities to acquire by purchase or condemnation lands within or without the city limits for the purpose of sewer carriage and outfall and purification plants or sewage disposal plants, entered into option contracts to buy land needed for construction of a sewage treatment plant two and one-half miles from the city limits in Jackson County. Subsequently, the city filed with the Board of Adjustment of Jackson County an application for authorization to use the land for a sewage disposal plant and the Board, after public hearings, granted the authorization sought. Mrs. Askew filed a petition for writ of certiorari for a review of the decision and the circuit court affirmed the order of the Board of Adjustment.

In holding that the city was not subject to the zoning regulations of Jackson County the court said: “Local zoning ordinances are not applicable to public uses of property for which an agency of the government has the power to acquire lands by the exercise of the power of eminent domain.” 330 S.W.2d 888. State ex rel. St. Louis Union Trust Co. v. Ferriss, supra, was cited as authority for the principle that under the rule of ejusdem generis the authority to regulate and restrict the location and use of buildings and lands for “trade, industry, residence or other purposes” related to private property and the phrase “other purposes” was not to be broadened to include a public use of property by the state in carrying out its constitutional mandate to establish and maintain free public schools.

Askew has been cited as “the leading case favoring the adoption of this (Power of Eminent Domain) test.” City of Temple Terrace v. Hillsborough Assoc, for Retarded Citizens, Inc., 322 So.2d 571, 578 (Fla.App.1975).

The next case to consider this question was St. Louis County v. City of Manchester, 360 S.W.2d 638 (Mo.banc 1962). It was a proceeding instituted by St. Louis County, a Constitutional Home Rule Charter County, to enjoin a fourth class city within said county from constructing and operating a sewage treatment plant and related facilities outside its city limits in a district designated as residential under the zoning laws and building regulations enacted by the county pursuant to its Charter. In holding that the county’s zoning ordinances were a lawful restriction upon the location of the sewage disposal plant and related facilities which the fourth class city within the county proposed to construct outside its city limits and in the county, the court distinguished both Ferriss and Askew.

In distinguishing Ferriss the court said: “the decision in the Ferriss case did not turn solely upon the existence of the right of condemnation becausé the statutes expressly provided that the board of education should select and locate sites for schoolhouses, which sites could be acquired by condemnation. The statutes upon which the City of Manchester relies do not expressly bestow upon it the right to select the precise location of a sewage disposal plant. The grant is general; it may be within or without the city limits. Furthermore, the nature of schools and the duties of school board members are such as justify vesting in them the right to locate schools where the school population and the public interest will best be served.” 360 S.W.2d 640.

In distinguishing Askew, the court said: “In the Kopp case there was no controversy between the City of Raytown and Jackson County. Raytown had sought and obtained the approval of Jackson County for the location of sewage lagoons and oxidation basins. The objectors were landowners who lived in the vicinity. A footnote to the opinion at 330 S.W.2d 887 points out that Jackson County does not operate under a special charter authorized by Sec. 18(c), Art. VI of the Constitution which specifically confers upon charter counties planning and zoning powers. This and the circumstances under which the litigation arose renders the Kopp case not controlling in this case.” 360 S.W.2d 641.

While the court in Manchester recognized that ordinarily the grantee of the power of eminent domain may determine the location of the facility or improvement and the land to be taken for it, it also noted that the power of selecting a location may be restricted by a statute or an ordinance having the force and effect of a statutory provision; that the grant of municipal powers to charter counties under Sec. 18 of Art. VI is meaningful and vests rights which cannot be taken away or impaired by the general assembly, and one of these rights is to exercise legislative power pertaining to planning and zoning in the part of the county outside of incorporated cities. No statutory authority expressly conferring on the city a superior right to locate the facility regardless of the zoning ordinances of St. Louis County was called to the attention of the court; by ruling that the zoning ordinances of St. Louis County were a lawful restriction upon the location of the sewage disposal plant and related facilities the city proposed to construct, “effect is given to the constitutional provisions, the statutes, and the ordinances of St. Louis County in their respective fields and in proper proportion.” 360 S.W.2d 642. The decision was based upon a holding that “the public interest is best served in requiring . . . (the selection of the location of the sewage disposal facilities) to be done in accordance with the zoning laws.” Id.

In Manchester the court specifically said it was not applying the “Superior Sovereign Test” in reaching its decision. 360 S.W.2d 642.

Although Ferriss was distinguished as we have developed, supra, no reference was made to the holding in that ease that the power conferred by Ch. 89 on cities is restricted to the regulation of private property and has no application to the use of public property for public purposes; nor that § 64.090, subd. 1, conferring the power to zone upon counties of the first class extended to the regulation of the height, number of stories, and size of buildings, the percentage of lots that may be occupied, the size of yards, courts and other open spaces, the density of population, the location and use of buildings, structures and land for “trade, industry, residence or other purposes, including areas for agriculture, forestry and recreation,” did not apply to public uses of property for which an agency of the government has the power to acquire lands by the exercise of the power of eminent domain in Askew. It did not specifically overrule these cases but distinguished them.

The next case to come before the Supreme Court was Appelbaum v. St. Louis County, 451 S.W.2d 107 (Mo.1970). The county sought to construct an incinerator on a tract of land situated partly in the Village of St. John and partly in the Village of Bel-Ridge. That portion of the tract of land in the Village of St. John was zoned residential, and that in the Village of Bel-Ridge, light industrial. The question before the court relevant to this decision was whether the proposed use of the tract of land was subject to the zoning powers of St. John and Bel-Ridge. The Supreme Court held it was not.

In arriving at its decision the court pointed out that the source of St. Louis County's authority to acquire land upon which to construct an incinerator, and to construct an incinerator, was Article VI, Sections 18— 20, Missouri Constitution, which authorized a special charter for its government and to provide for, among other things, the vesting of legislative power pertaining to public health, and the terms upon which it might perform any of the services and functions of any municipality or other political subdivision except school districts. Reference was made to § 49.303 V.A.M.S., whereby the county council of a first class county having a constitutional charter was empowered to construct and operate incinerators and to acquire property for said purposes by eminent domain and to § 64.320 V.A.M.S. authorizing first class counties to acquire land by eminent domain upon which to operate land-fills and parks, without any restrictions on the exercise of said powers in the unincorporated areas of the county. The fact that the county had adopted a Home Rule Charter containing a provision for the exercise of public health legislative power and to provide the terms upon which the county could perform any service of a municipal or political subdivision except a school district was also noted. It stated that the county might also exercise power pertaining to public health conferred by the state upon counties of the first class, all of which are authorized to enact ordinances tending to enhance the health of all residents of St. Louis County irrespective of whether they also reside within a municipality. Ferriss was considered analogous to the situation in Appelbaum ; the proposition that a city had no power to prohibit by 'Is zoning laws the exercise of the constitutional and statutory authority of a school district to locate and construct a school was the basis for its decision that the location of the incinerator by the county could not be prohibited by the zoning ordinances of the two Villages.

The court also distinguished Manchester (which was relied upon by the appellants) on the grounds that its facts were distinguishable, and distinguished Askew because in Askew it was Jackson County whose authority was under attack and Jackson County did not operate under a special charter pursuant to Article VI, Section 18(c), Missouri Constitution, and there was no controversy between the municipality and the county.

The last case we have found to have come before the appellate courts of this state involving this question is State ex rel. City of Gower v. Gee, 573 S.W.2d 107 (Mo.App. 1978). There, a municipality of the fourth class, the City of Gower in Clinton County, sought to construct a sewage disposal facility outside its city limits in Buchanan County, pursuant to § 71.680 which authorized a city of the fourth class to acquire by purchase or otherwise, incinerator plants within or without its city limits and pursuant to § 79.380 which authorized cities of the fourth class to purchase or condemn necessary lands within or without its city limits, or within five miles therefrom, for sewer carriage and outfall. However, Buchanan County, pursuant to Ch. 64, “County Planning, Zoning and Recreation,” had zoned the property for agricultural use. Gower applied to the Buchanan County Board of Zoning Adjustment for an exception to the zoning and, after hearing, its application was rejected. Gower petitioned the circuit court for a Writ of Certiorari and the writ was granted; the trial court declared all proceedings before the Board to be coram non judice and void for want of jurisdiction under the applicable law, reversed the Board’s order rejecting Gower’s application, and remanded the cause to the Board with directions to dismiss the proceedings. The Board appealed.

The Western District of this court affirmed the action of the trial court.

In doing so, the court found that the source of Gower’s power to construct a sewage disposal facility was Article IV, Section 37 of the Constitution of Missouri, wherein it is provided that the health and general welfare of the people are matters of primary public concern, and to secure them the general assembly might grant power with respect thereto to counties, cities or other political subdivisions of the state. That, pursuant to this constitutional authority the legislature, by enacting §§ 71.680 and 79.-380, had delegated to Gower the power to exercise the state’s sovereign right to acquire property by condemnation or purchase for the purposes enumerated under § 71.680 and within the limits of § 79.380. It further declared that no constitutional provision limits this power, except that private property may not be taken without just compensation. Art. I, §'26.

In deciding the question, the court relied on Ferriss for the legal position that the exclusive constitutional and statutory powers vested in the city could not be limited or restricted by the county zoning ordinance. It also relied on Askew, and particularly on that portion of the opinion which stated that there was no constitutional provision such as Article IV, § 37, which could apply to the zoning power. 573 S.W.2d 110. The court also held Manchester and Appelbaum distinguishable and not authoritative on the grounds that they involved a first class charter county which is not subject to restriction of its powers by the municipalities within said county. 573 S.W.2d 111.

The common thread which runs through each of these cases appears to be the holding that where a power has its source in the Constitution, although delegated by the state legislature to a municipality or other state agency, it takes precedence over and cannot be restricted by a power, such as zoning, which is delegated to a competing municipality or governmental agency without any constitutional source.

In Ferriss the constitutional source of the school district’s power to acquire sites for school facilities was Article IX, § 1(a), and the implementing legislation, § 165.100 specifically authorizing the school district to “locate sites for schoolhouses.” In the sewage disposal cases where the zoning was held to restrict the power of the governmental agency to locate the facility in a host county, the constitutional source of the power to construct such facilities was Article IV, § 37, and the power to enact zoning legislation had its source in Article VI, § 18(c) of the Constitution. Where the zoning power was not permitted to prevail, there was no provision of the constitutional authority for the county to enact zoning ordinances, but the power to zone was delegated to the county by the General Assembly and contained no provision prohibiting the exercise of the specific constitutional and legislative power granted the municipality to acquire by condemnation or purchase property for the governmental purpose.

In these cases, where adverse claims of two governmental units are presented, each claiming to have the superi- or right and power to designate the location of a facility, the court must construe the constitutional and legislative provisions together and harmonize them if it is reasonably possible to do so.

We believe the legislative grant of authority to cities to acquire by purchase or condemnation land for the use of parks has its source in Article I, § 26 of the Constitution of Missouri and the state’s concern for the health and general welfare of the citizens of this state. To implement this constitutional authority conferred on the state government the General Assembly delegated to the cities of the state in § 90.010 the power to acquire land for these purposes by condemnation within its city limits or within one mile thereof. Unlike a sewage disposal facility or an incinerator, the operation of which, experience has shown, may be highly offensive, St. Louis Co. v. City of Manchester, 360 S.W.2d 642 (Mo.banc 1962), the operation of a park within a zoned area is less likely to be offensive. No specific provision appears in § 90.010 indicative of any intention on the part of the General Assembly that the exercise of the power to acquire land for parks outside, but within one mile of the the city limits, should be subject to zoning regulations of any host county or municipality restricting the use of the land which would result in prohibiting its use for park purposes. On the other hand, Ch. 89 which is the source of Sunset Hills' power to regulate the use of land within its territorial limits does not provide that land used by state agencies shall be subject to zoning ordinances enacted pursuant to the authority of Ch. 89. In such cases our Supreme Court has said, State ex rel. Askew v. Kopp, 330 S.W.2d 882, 888[7]: “The state and its agencies are not within the purview of a statute unless an intention to include them is clearly manifest, especially where prerogatives, rights, titles or interests of the state would be divested or diminished.”

While we would be inclined to apply the balancing of interests to this case, so far as we have been able to ascertain that test has not been employed in this state in resolving conflicts of this sort, and the parties to this appeal have not requested that we do so. They have presented the issue to us on the sole grounds that the zoning ordinance is invalid because it conflicts with the delegation of the state’s power to acquire land by condemnation for the purpose of using it for park purposes. In this posture, we hold that the power of Kirkwood to exercise the authority delegated to it by § 90.010 to acquire the tract in question and to use it for the purpose of a public swimming pool and recreational facility cannot be abrogated by Ordinance No. 622 of the City of Sunset Hills, and that the judgment of the trial court, if it held otherwise, was in error.

Turning now to the appeal from the injunction case, we also reverse that judgment.

It is clear that the trial court felt constrained by the judgment in the declaratory judgment action which at that time had not been appealed and which was construed to have decided that Ordinance No. 622 was a valid exercise of Sunset Hills’ zoning powers. Our holding supra has removed the res adjudicata question, and our holding that the ordinance cannot prohibit Kirkwood from operating the swimming pool and recreational facility in the City of Sunset Hills’ territory, requires a reversal of the judgment in the injunction action.

We choose not, however, to remand these cases to the Circuit Court from whence they came; rather, pursuant to the authority of Rule 84.14, we shall enter the order the trial court should have entered in each cause.

We hold that the City of Kirkwood may proceed with the operation of a public swimming pool and public recreational facility on the tract of land identified in the record in Exhibit A to its petition and occupied by the Fountainbleau Bath and Tennis Club, and that Ordinance No. 622 of the City of Sunset Hills may not be employed by the officials of said City to prohibit the operation of a public swimming pool and public recreational facility by the City of Kirkwood. We also dissolve the injunction restraining the City of Kirkwood from creating, maintaining or operating a public recreational facility or public swimming pool on the property heretofore entered in Cause No. 408332 of the Circuit Court of St. Louis County.

In so ruling, we do not imply that the operation of these facilities by the City of Kirkwood within the city limits of the City of Sunset Hills may not be subject to the exercise of some valid police regulations of Sunset Hills. See Smith v. Board of Education of the City of St. Louis, 359 Mo. 264, 221 S.W.2d 203 (banc 1949).

The judgments of the trial courts are reversed and judgment entered as aforesaid.

STEPHAN, P. J., and STEWART, J., concur.

      . Statutory references are to RSMo. 1969 unless otherwise stated.

      . The parties, in oral argument, admit that they were confused by this ambiguity, each being of the opinion that the judgment was favorable to their position.

      . We have difficulty viewing this ordinance as a zoning ordinance enacted pursuant to the authority of Ch. 89; we believe that it is more likely an attempt to enact an ordinance pursuant to the city’s general police powers under authority of §§ 79.450-79.470, but neither party to this appeal has viewed it in that light.

      . Section 79.380 restricted exercise of this power to lands within five miles of the city limits; § 71.680 contained no restriction of this kind.

      . The statement by the court that there was no controversy in this case between the City of Raytown and Jackson County is, in our opinion, somewhat misleading because Raytown sought and was granted leave to intervene in the certiorari proceeding in the circuit court, presented evidence, and, on appeal, for the first time challenged the jurisdiction of the Jackson County Board of Adjustment over the subject matter.

      . See fn. 5, where we question the validity of an alleged lack of controversy between the City of Raytown and Jackson County as a basis for distinction.

      . Municipal zoning ordinances have been held not to prohibit acts of various governmental and nongovernmental bodies; conflicts have arisen with respect to the location and operation of churches, aboveground construction of utility lines by a public utility, and the sale of fireworks in violation of a fire protection district ordinance. See: Congregation Temple Israel v. City of Creve Coeur, 320 S.W.2d 451 (Mo.1959) (A municipal ordinance precluding construction of any church in the city unless a special permit was issued by the Board of Aldermen was held invalid, because to construe the language of the enabling act to include authority to restrict or prohibit the use of land for religious purposes would invite interference with the free exercise of religion guaranteed by the First and Fourteenth Amendments of the United States Constitution); Union Electric Co. v. City of Crestwood, 499 S.W.2d 480 (Mo. 1973) and Union Electric Co. v. City of Crest-wood, 562 S.W.2d 344 (Mo.banc 1978) (A municipal ordinance prohibiting aboveground construction of utility lines invaded the area of regulation and control of public utilities vested in the Public Service Commission); State ex rel. Bumau v. Valley Park Fire Protection Dist., 477 S.W.2d 734 (Mo.App. 1972) (An ordinance of the Valley Park Fire Protection District which attempted to prohibit the sale of all fireworks was in direct conflict with a state statute expressly authorizing the sale of fireworks, and the ordinance, therefore, was void.)


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Willie Norman STEVENSON, Defendant-Appellant.
    No. 39405.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 4, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 15, 1979.
    Application to Transfer Denied Dec. 6, 1979.

      Robert C. Babione, Public Defender, Mary Louise Moran, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Kristie Green, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Dean R. Hoag, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   STEWART, Judge.

A jury found defendant guilty of illegal possession of a Schedule I Controlled Substance — Heroin. The court entered judgment upon the verdict and assessed punishment under the Second Offender Act § 556.280. We affirm.

Defendant’s contentions in general terms are that the court erred in 1) denying his motion to suppress evidence; 2) denying his motion for acquittal because the State failed in its proof; 3) failing to discharge him because he had been twice placed in jeopardy; and 4) failing to dismiss the information.

We first consider defendant’s charge that the trial court erred in denying his “Motions for Judgment of Acquittal because the prosecution failed to meet its burden of proving that [defendant] himself had knowingly possessed heroin in that the prosecution failed to demonstrate exclusive possession on the part of [defendant].”

In considering this issue we view the evidence in the light most favorable to the State and give it the benefit of all favorable inferences. State v. Wiley, 522 S.W.2d 281, 292 (Mo.1975). We review the facts relevant to this issue. The facts necessary to other issues will be stated when those issues are considered.

On May 13, 1976 at about 4:30 PM police officers executed a search warrant to search a two story single family brick residence at 5233 Raymond in the City of St. Louis for heroin. Officer Morgan knocked on the door at the above address. A son of defendant approached the door from the inside and when Officer Morgan held up his badge the young man ran up a flight of stairs. The officers forced the door. Two of them followed defendant’s son to the bathroom on the second floor where they found him flushing the toilet. Other officers ran up a flight of stairs leading to a loft or attic area above the second floor to secure the building. They saw defendant, Carolyn Hoskins, his “common-law wife” and their baby lying on a mattress asleep. One of the officers woke defendant, read the search warrant to him and gave him a copy. Officer Stolte searched the room. There was a dresser about four feet from defendant. From the top of the dresser he seized a wire strainer and a wire sifter, several cooker caps, 14 hypodermic syringes, 5 measuring spoons, and an envelope of empty gelatin capsules, a brown plastic vial containing 17 pink capsules of heroin and a 1973 wage and tax receipt from Jaeckes-Evans Manufacturing Company bearing the name W. Stevenson and the address 5233 Raymond.

Defendant was placed under arrest and read his Miranda rights. Defendant then told the officer that the 17 capsules of heroin were all they would find in the house. Defendant also said, “Damn, you have got me good. If I hadn’t been sleeping, I could have flushed the [capsules] before you got up to my room.” There was a discussion with respect to arresting Mrs. Hoskins and at that time defendant told the police, that there was no need to arrest her because she didn’t live there and none of the heroin was hers, that it was his for his personal use. He told the police that Mrs. Hoskins had been an addict but that she was in a rehabilitation program.

Mrs. Hoskins appeared as a witness on behalf of defendant. She testified that she was defendant’s common-law wife and that she resided at 5233 Raymond on May 13, 1976, a house owned by defendant’s mother, Willie Stevenson Perkins. She said that she paid $60.00 per month for the room. Although it appears to be a single family house it is occupied by eight to ten persons. She had told the police that she lived at 4921 Penrose but that is the address of her mother. She stated that defendant lived at 4215 Shreve on May 13,1976 and had come by 5233 Raymond that day about 10:00 AM to visit her. She stated that defendant’s sons Stanley and Randy and his nephew also use the room.

She also testified that defendant did not bring the heroin and paraphernalia into the room and she did not know that they were in the room until they were seized; that they did not belong to defendant; that defendant said they belonged to him because he was protecting her.

While we believe there is sufficient evidence to warrant a finding that defendant was in control of the premises at 5233 Raymond, we do not have to make that determination to conclude that the defendant was knowingly in possession of heroin. Defendant was present in the room where the heroin was found. Mrs. Hoskins disclaimed any knowledge of the presence of heroin. The defendant admitted that it was his for his personal use. There was ample evidence from which the jury could find defendant guilty of the crime charged. State v. Wiley, supra.

We consider next defendant’s contention that the court erred in denying his motion to suppress evidence and admitting into evidence items seized in the execution of the warrant in the loft or attic because the search and seizure were beyond the scope of the warrant to search “a single family two story brick constructed residence at 5233 Raymond” in that the warrant confined the search to the first two floors of the building.

Defendant relies on State v. Barrelli, 317 Mo. 461, 296 S.W. 413 (1927). There the warrant described the premises to be searched as:

“A two-story brick building, the basement beneath the same and all structures, barns, sheds, garages, outhouses in the rear of the same, and all buildings located in and upon the premises at 315 Cherry Street, Kansas City, Missouri.”

The principal structures at that address consisted of a two story building. Defendant rented the first floor as a soft drink parlor. The landlord lived upstairs. There was another building occupied by another tenant and a shed on the premises. As we read the case the court held that where there is a description by street and number and the premises are occupied by a number of persons for different purposes each having the right to exclusive possession of separate portions of the premises whether as owners or tenants, the description in the warrant is not a particular description as required by the Constitution because it does not discriminate between the various owners or tenants.

This is not the issue presented to the court by defendant’s point relied on. Defendant argues that the house was a multi-unit structure, however, issues not raised in the point relied on may not be raised in the argument portion of the brief. V.A.M.R. Civil Rule, Rule 84.04(d, e), State v. Flynn, 541 S.W.2d 344 (Mo.App.1976). In the hearing on the motion to suppress defendant testified that he had lived at 5233 Raymond for twenty years but presented no evidence that there were multi-units in the premises. On a motion to suppress evidence seized under a warrant the burden of proof is upon the defendant. State v. Randall, 540 S.W.2d 156 (Mo.App.1976). There is a complete lack of evidence to support such a contention.

The issue presented is whether the description in the warrant was intended to exclude the search of the loft or attic area of the premises. § 542.276.6(5) requires that a search warrant “ . . . identify the person, place or thing [to be searched] . in sufficient detail and particularity that the officer executing the warrant can readily ascertain whom or what he is to search.” The warrant commanded the officers to search “the two-story, single family, brick constructed residence located at 5233 Raymond Avenue.” The photographs introduced show a building with a single front door, two stories and what appears to be a loft or attic area with a window unit in the center of the attic under the eaves. The window unit consists of two adjacent windows. The building is what one would commonly refer to as a two story single family residence.

The language of the warrant restricted the search to the building described but is not restrictive as to the areas of the building to be searched. We hold that the search of the attic was within the scope of the warrant. The trial court did not err in overruling defendant’s motion to suppress.

Defendant also contends that the court erred in denying defendant’s motion to suppress and in permitting the State to introduce the Wage and Tax Statement on the ground that the search was invalid and for the further reason that it was not described in the warrant and was not sufficiently connected to the res gestae of the act of possession of the controlled substance.

What we have said with respect to the validity of the search above is equally applicable to this item of evidence.

With respect to the other issues in this point defendant contends that prior to the first trial of this case that ended in a mistrial he was unaware that the State had the Wage and Tax Statement. It was for that reason this item was not included in his motion to suppress. He further states in his brief that he offered a second motion to suppress which included among other items the Wage and Tax Statement. We have reviewed the proffered motion but find no reference to the Wage and Tax Statement.

If the defendant desires to attack the validity of a search and the admissibility of the fruits of the search he must file a motion to suppress that evidence and keep the question alive by timely and proper objections throughout the trial and by bringing it to the attention of the trial court in the motion for new trial. State v. Fields, 442 S.W.2d 30 (Mo.1969). In the case before us defendant does not contend that he had no reason to anticipate the evidence would be introduced and was surprised. He did not file a motion to suppress the evidence of the Wage and Tax Statement. The issue has not been preserved for our review. State v. Fields, supra. We also note that the objections made to the evidence at the trial are not those made in the motion for new trial. Nor are the issues sought to be presented to us the same as those made at the trial or those set forth in the motion for new trial. The point raised upon appeal must be based upon the theory of the objection as made at the trial and as preserved in the motion for new trial. State v. Swinney, 558 S.W.2d 363 (Mo.App.1977). Aside from the general validity of the search the point relied upon preserved nothing for review. Nevertheless we believe that the Wage and Tax Statement was properly introduced into evidence. It was relevant in anticipation of Mrs. Hoskins testimony that defendant did not live at 5233 Raymond Avenue. See also State v. McCurry, 582 S.W.2d 733 (Mo.App.1979).

Defendant contends that the court erred in overruling his motion to dismiss the information and discharge the defendant because he was twice placed in jeopardy in that a prior trial in this cause had proceeded into the defendant’s case when a mistrial was declared by the trial court.

In that trial defendant’s counsel had requested a recess to get a witness that she assured the court was available. After the recess counsel advised the court the witness was unavailable; that she had spoken to the witness who advised counsel that she would not be available to the defense. Counsel then announced that she would call Carolyn Hoskins as a witness. She had previously advised the State that she would not call Carolyn Hoskins as a witness. When the State was advised that defendant intended to call the witness the State claimed surprise. The State asked an opportunity to voir dire the witness before it could determine what remedy it would request. After considerable colloquy between the court and counsel both on and off the record the State announced it “would like to make a motion claiming surprise in the defense calling Carolyn Hoskins . . ..” The State asked no specific relief. Ultimately the court made the following comments and rulings:

“The Court feels that the position of the State is reasonable, well taken, under the circumstances that have arisen here, and unintentionally the State has been placed in a most disadvantageous position of facing a witness about whom it has been indicated previously that would not be called to testify in this case about a very relevant and material matter in the case. One of the sanctions that the discovery rules permit is to refuse to permit a witness to testify. It’s an extreme measure to take. I don’t feel that I should, under the circumstances, take that position and impose that sanction. At the same time I think the State has been put in a position of disadvantage, and we won’t, considering that this lay witness who is probably not an educated person, who has been a narcotics addict, and her rights would not only have to be explained to her by disinterested counsel, she would have a right to an attorney inasmuch as she could very well wind up being charged with a felony crime as a result of the testimony she might give. That’s the position of the Court, then, that I have no choice but to declare a mistrial at this time and to discharge the jury.”

Although the issue was brought to the court’s attention by the State it made no specific request for a mistrial. It is contended by defendant that the mistrial was declared by the court on its own motion. Whether the action was taken by the court sua sponte or at the request of the State is not material to the issue because of the conclusion that we reach on this issue.

The applicable principles are definitively reviewed in State v. Irving, 559 S.W.2d 301, 306 et seq. (Mo.App.1977). The double jeopardy provision of the Fifth Amendment to the United States Constitution is applicable to the states. A person is placed in jeopardy in a jury trial when upon a valid information or indictment the jury has been impaneled and sworn. The double jeopardy provision does not result in every instance in which a mistrial is declared after the impaneled jury has been sworn. As said at page 308 of Irving:

“The trial court, vested with discretion, has the authority to discharge a jury from giving any verdict when, under all the circumstances, there is a ‘manifest necessity’ to abort the trial, so that the defendant may be retried without violating the Double Jeopardy prohibitory rule. In this regard the courts have not laid down an inflexible, rigid test as to when trials may be discontinued by a trial court sua sponte so that the constitutional prohibition is applicable to a subsequent trial. A mechanical rule has never been applied nor can one be devised.”

An oft repeated test is set forth in United States v. Perez, 22 U.S. 559, 580 (9 Wheat); 6 L.Ed. 165 (1824):

“The law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.”

The solution of the issue in any given case is dependent upon the particular facts of the case. In the case before us defendant did not comply with the provisions of Rule 25.34 respecting disclosure of witnesses. Rule 25.45 in material part provides:

“If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule . . . the court may order such party to make disclosure of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other orders as it deems just under the circumstances.”

Mrs. Hoskins was a most important witness. She was present at the time the police came into the room, made the search and arrested defendant. The State, after expressing surprise, asked to voir dire the witness before making a decision as to the motion it would make. After the discussion with the court, on and off the record, the State made a motion “claiming surprise.” The effect of this action was to place the responsibility of determining the proper sanction upon the trial court. The comments of court and counsel demonstrate that the court considered all of the alternatives. It appeared to the court that a voir dire by the State would not dispose of the issue. It was apparent that the witness was highly important to the defendant’s cause. The court considered excluding the testimony of this witness but concluded that the sanction would not be fair to the defendant. We believe that the trial court could also consider that defendant made no objection to the granting of a mistrial. It is clear that the trial court was convinced that there was a manifest necessity “to declare a mistrial to promote the ends of public justice.” It was not necessary that he make use of the quoted words because there was sufficient justification for the ruling. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717, 733 (1978). We find no abuse of discretion on the part of the trial court. The defendant was not subjected to double jeopardy as prohibited by the Constitutions of Missouri and the United States.

Defendant’s final point relied on reads as follows:

“The trial court committed reversible error in overruling Appellant’s Motion to Dismiss the amended information filed against Appellant because the amended information on which the State proceeded at trial was not valid in that the evidence adduced at trial demonstrated that the prosecution proceeded against Appellant by way of indictment following his discharge at a preliminary hearing and then at the time of trial, substituted an information pleading Appellant’s prior conviction. The use of either indictment or information more than once in proceedings against a defendant subjects that defendant to double jeopardy, and the trial court erred in permitting the prosecution to proceed without a preliminary hearing on a substitute information which enhanced the range of punishment and thus, acted to change the nature of the charge against which Appellant was supposed to defend without granting him a preliminary hearing on that charge.”

As we read the point defendant contends that the use of the indictment followed by an information in lieu of indictment constitutes double jeopardy.

Jeopardy attaches in a jury trial when the jury is impaneled and sworn and in a court tried case. State v. Irving, 559 S.W.2d 301, 307 (Mo.App.1977). In a trial before a judge jeopardy attaches upon the introduction of evidence. Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). The substitution of an information for an indictment does not put a defendant to trial. While not raised we also take cognizance of the fact that the preliminary hearing does not place the accused in jeopardy. State v. Thomas, 529 S.W.2d 379 (Mo.1975). This issue is without merit.

The other facet of this point was not raised in the motion for new trial and is not before us for review. State v. Gordon, 536 S.W.2d 811 (Mo.App.1976).

In any case the nature of the charge was not changed and defendant was not entitled to another preliminary hearing. State v. Collins, 383 S.W.2d 747 (Mo.1964); State v. Green, 305 S.W.2d 863 (Mo.1957).

Finding no error the judgment is affirmed.

STEPHAN, P. J., and KELLY, J., concur.

      .After alleging the issuance and execution of the warrant the motion states: “4. Heroin and apparent drug-related paraphernalia were seized in the course of this arrest.
      Defendant states that the warrant issued in this case was void because:
      1. The affidavits upon which it was issued stated mere conclusion; (sic)
      2. The informant’s statement was uncorroborated by the independent investigation of the police officers;
      3.The information furnished to the Judge was incompetent to provide him the independent basis upon which he could issue the warrant. .
      WHEREFORE, defendant asks that the evidence, particularly the physical evidence merely collateral to the issue of possession of heroin, that was seized as a result of this unlawful search and seizure be suppressed. (LODGED, May 11, 1977)”

      . “ ‘[N]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb


author: ALDEN A. STOCKARD, Special Judge.

text:
    Mary Lou STAMME, Respondent, v. Kenneth Gallet STAMME, Appellant.
    No. 39099.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 25, 1979.

      Latourette & Weyerich, Donald J. Weye-rich, Clayton, for appellant. ■
    Morris A. Shenker, Cordell Siegel, St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

The husband has appealed in this dissolution of marriage case, and he contends error on the part of the trial court in three respects: (1) The exclusion of evidence; (2) the division of the marital property; and (3) the award of custody of the minor children. We affirm.

During cross-examination of respondent, appellant unsuccessfully sought to introduce in evidence tape recordings secretly made by him of telephone conversations between respondent and other persons which occurred after the parties had separated and after this action for dissolution of marriage had been filed.

Respondent contends, and this apparently was the basis for the ruling by the trial court, that the recorded telephone conversations were inadmissible in evidence by reason of Title III, entitled “Wiretapping and Electronic Surveillance,” of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. It is there provided, with certain exceptions not applicable to this case, that any person who “willfully intercepts * * * any wire or oral communication” or who “willfully uses * * * the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the [illegal] interception of a wire or oral communication” shall be guilty of an offense punishable by fine or imprisonment. Section 2515 provides as follows:

“Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.”

Relying primarily on Simpson v. Simpson, 490 F.2d 803 (5th Cir. 1974), appellant asserts that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 was not intended to prohibit purely inter-spousal wiretaps on telephones in the marital home. The Simpson case was a civil suit brought pursuant to 18 U.S.C. § 2520 by a woman against her former husband who had during the marriage attached a recording device to the telephone lines at their home and used the recorded conversations, described in the Simpson case as “mildly compromising,” to obtain an uncontested divorce. Although the court admitted that the “naked language” of Title III was all-inclusive, it concluded that Congress did not intend to intrude into domestic conflicts normally left to state law. It also stated that it was “not without doubts” about its decision, but that the section was not “sufficiently definite and specific to create a federal cause of action for the redress of [the wife’s] grievances against her former husband.” We are not here concerned with a tort action by one spouse against another.

We consider the language of Title III to be clear and unambiguous. As stated in United States v. Giordano, 416 U.S. 505, 514, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974), the “purpose of the legislation, * * was effectively to prohibit * * * all interceptions of oral and wire communications, except those specifically provided for in the Act * * *,” and interspousal wiretaps placed on telephones in the marital home or the home of either spouse are not specifically exempted.

The court in the Simpson ease arrived at its result after examining the legislative history, but that result has been the subject of extensive criticism by legal writers. See 12 Valpariso University Law Review 537 (1978), “Interspousal Electronic Surveillance and Title III;” 27 Buffalo Law Review 155 (1977), where in a Note it was stated that “An exemption for marital disputes is suggested neither by the wording nor the legislative history of Title III;” 12 Creighton Law Review 1209 (1979), “Title III and the Classic Triangle: Should the Immunity Doctrine Apply to Interspousal Electronic Surveillance?” The Simpson court based its decision, at least in part, on a desire to avoid a conflict between the civil remedies granted by Title III and the doctrine of interspousal immunity from civil actions in tort recognized in some states,, and it concluded that Congress did not in-ténd to override that doctrine.

In United States v. Jones, 542 F.2d 661 (1976), the 6th Circuit Court of Appeals took sharp issue with the reasoning and result of Simpson v. Simpson. The Jones case was a criminal proceeding brought against a husband who had intercepted telephone conversations of his estranged wife and had used the intercepted communications in violation of 18 U.S.C. § 2511(l)(a) and (d). The court stated that “The language of § 2511(l)(a) quite clearly expresses a blanket prohibition on all electronic surveillance except under circumstances specifically enumerated in the statute,” and an interspousal wiretap is not one of the exceptions. The court further stated that ordinarily a court does not refer to the legislative history when construing a statute which is clear on its face, but that it would do so because it disagreed with the construction of the statute in the Simpson case. It then reviewed at length the legislative history and concluded: “Our review of the legislative history of [§ 2511(1)], testimony at congressional hearings, and debates on the floor of Congress, inescapably lead to the conclusion the 18 U.S.C. § 2511(l)(a) establishes a broad prohibition on all private electronic surveillance and that a principal area of congressional concern was electronic surveillance for the purpose of marital litigation,” and that “the Congress enacted Title III to protect the privacy of all persons conversing over the telephone and that their privacy is shielded from invasion by third parties and spouses alike.” The court further stated that “If Congress intended to create another exception to Title Ill’s blanket prohibition of unauthorized wiretaps [it] would have included a specific exception for interspousal wiretaps in the statute.” We shall not here review the legislative history. It is sufficient to state that it is set out in detail in United States v. Jones, supra, and that we agree with the conclusion reached in that case. We consider the statute to be clear and unambiguous in its blanket prohibition of all wiretaps not specifically authorized; that interspousal wiretaps are not specifically authorized; and that the legislative history as set forth in United States v. Jones, supra is in complete accord with these conclusions.

Having determined that § 2511(1) applies to interspousal wiretaps, the provisions of § 2515 prohibit the admission in evidence of the intercepted communications, and the trial court properly sustained respondent’s motion to suppress the recordings.

Appellant’s second point is as follows: “The trial court erred in awarding respondent more than three-fourths of the marital property.” This point does not meet the minimum requirements of Rule 84.04(d), in that it does not state “wherein and why” the ruling of the trial court is claimed to be erroneous. See Cavaness v. Armstrong, 525 S.W.2d 446 (Mo.App.1975); Cato v. Modglin, 545 S.W.2d 307 (Mo.App.1976). However, in an extremely liberal exercise of judicial discretion we have studied appellant’s argument in an effort to determine his precise contentions.

Appellant admits that § 452.330 RSMo 1978 grants to the trial court “great flexibility and far-reaching power when dividing marital property in order to accommodate the needs of the parties upon dissolution of the marriage,” citing In re Marriage of Heddy, 535 S.W.2d 276, 281 (Mo.App.1976), and that a division of the marital property will not be disturbed on appeal “except for an abuse of discretion.” Murray v. Murray, 538 S.W.2d 587 (Mo.App.1976). We add that the trial court is not required to make an equal division of the marital property, Reed v. Reed, 516 S.W.2d 568 (Mo.App.1974); Smith v. Smith, 552 S.W.2d 321 (Mo.App.1977), but only a just division. McCall v. McCall, 574 S.W.2d 496 (Mo.App.1978).

The trial court did not make findings of fact and conclusions of law; no request therefor being made. Although such findings are usually helpful on appellate review, they are not required by Rule 73.01(2) in the absence of a request. Stark v. Stark, 539 S.W.2d 779 (Mo.App.1976). In the situation we have here all fact issues are deemed to have been found in accordance with the result reached. Smith v. Smith, supra; Prenavo v. Prenavo, 556 S.W.2d 463 (Mo.App.1977).

The court did not award maintenance to either spouse, but it did award child support to the wife in the amount of $22.50 per week for each of the two minor children. During a substantial period of the marriage respondent worked outside the home. At the time of trial she was employed and her gross earnings were approximately $147 a week. Appellant’s gross earnings were approximately $193 a week, and he also received some additional benefits. Appellant’s argument seems to be that it was an abuse of discretion to award respondent 84% of the marital property and only 16% to him. To arrive at those figures appellant did not take into consideration that the family home had a mortgage on it of $10,000 or $11,000, and in arriving at his result he used the estimates of value favorable to his contention. In respondent’s brief she sets out the evidence as to the value of the marital property which was as follows:

[See following illustration.]

We do not know what values the trial court accepted, but it is readily apparent that the distribution was not so disproportionate as to establish an abuse of discretion on that basis. Also, the house is the principle item in the marital property, and it is non-income producing but is needed by the spouse which is awarded custody of the children.

When we consider all the relevant factors set forth in § 452.330 RSMo 1978, including the desirability of awarding the family home to the spouse who has custody of the minor children, we cannot hold that the trial court abused its discretion in making the division it did.

Appellant’s third point also is inadequate. In its entirety it is: “The trial court erred in awarding respondent custody of the children born of the marriage.” We review this contention only because the welfare of minor children is involved.

Appellant argues that “the Court failed to consider all the circumstances involved in ascertaining to which parent custody would be in the best interest of the children.” He then asserts that the court erred in suppressing the taped telephone conversations and that the “conduct of Respondent as evidenced by [those] telephone conversations would have been an appropriate consideration of the Trial Court * * *.” That evidence is not a part of the record before us, and we have ruled that it properly is not.

We have studied the entire record that bears on the issue of proper custody. The children were below school age at the time of trial. There was evidence from disinterested persons that respondent was a good mother for the children, and the deputy juvenile officer after an investigation recommended that respondent be granted permanent custody with appellant having temporary custody. There was also evidence to the effect that to place permanent custody with appellant would not be in the best interest of the children. We are convinced that the trial court entered the proper order as to custody.

The judgment is affirmed.

DOWD, P. J., and CRIST, J., concur.

      . “Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall (1) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, and (2) shall be entitled to recover from such person — (a) actual damages * * *; (b) punitive damages; and (c) a reasonable attorney’s fee and other litigation costs reasonably incurred.”

      . Appellant’s brief was filed prior to the date Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978) was handed down.


author: SWOFFORD, Chief Judge.

text:
    Susan COX et al., Appellants, v. COPELAND BROTHERS CONSTRUCTION COMPANY and Western Casualty & Surety Company, Respondents.
    No. KCD 30114.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.
    Motion for Rehearing and/or Transfer Denied Oct. 29, 1979.
    Application to Transfer Denied Dec. 6, 1979.

      Edward J. Murphy, Butler, for appellants.
    Edward W. Mullen, Patrick C. Cena, Dea-cy & Deacy, Kansas City, for respondents.
    Before HIGGINS, Special Judge, Presiding, WELBORN, Special Judge and SWOF-FORD, C. J.
   SWOFFORD, Chief Judge.

On November 13, 1975, Gerald Cox, husband of Susan K. Cox, and father of Susan Evelyn Cox, a minor, was killed in Saline County, Missouri in an automobile collision while en route from his home in Chillicothe to Marshall, Missouri. Appellants filed a claim for his death under the Missouri Workmen’s Compensation Act alleging that the accident resulting in Cox’s death occurred while he was within the course and scope of his employment as a plumbing foreman for Copeland Brothers Construction Company (Copeland).

After a hearing, death benefits were awarded by the Referee, but upon review by the Industrial Commission that award was reversed and benefits denied. The Circuit Court of Saline County affirmed the Commission’s action and from that adverse ruling appellants bring this appeal.

The sole question involved in this appeal is whether or not the deceased was within the course and scope of his employment at the time of the accident. More specifically and narrowly stated, the issue becomes one of whether the decedent’s trip from Chilli-cothe to Marshall, Missouri invoked the “dual purpose doctrine” and thus rendered his death compensable to his dependents under the Act. In other words, was the purpose of his trip partially his own and partially that of his employer, Copeland Brothers Construction Company. The appellants vigorously assert that the denial of death benefits constituted a misinterpretation and misapplication of appropriate Missouri law in failing to apply the “dual purpose doctrine”, that this denial was contrary to the overwhelming weight of the evidence, and that there was not sufficient competent evidence to support the denial of compensation. The respondents argue that the Circuit Court properly sustained the findings of the Commission; that those findings were supported by sufficient competent evidence, and that the award properly applied the law in holding that the “dual purpose doctrine” was inapplicable under the evidence.

The general principle is that injuries sustained by an employee while en route from his home to his place of employment are not sustained “within the course and scope” of his employment and are, therefore, not compensable. Certain exceptions to this general rule have been clearly defined by the courts of this state, one of which is the so-called “dual purpose doctrine”. This doctrine in Missouri-finds its basic support in the case of Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (Ct. of App. N.Y. 1929), in which Cardozo, C. J., held that street risks to which an employee was necessarily exposed while traveling to and from work, unrelated to the service of the employer, did not fall within the ambit of compensable consequences. The court in Marks declared that the determination of whether an injury incurred from such a risk was compensable from the employer hinged upon a simple factual basis, l.c. 183 [2]:

“The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own.”

The rationale of Marks and the cases which follow it, is that if the exposure to the perils of the highway is related to the employment even though the employment is not the sole cause of such exposure to such risks but is combined with or is a concurrent personal cause, the benefit of compensation is not to be withdrawn. O’Dell v. Lost Trail, Inc., 339 Mo. 1108, 100 S.W.2d 289, 293 [5] (Mo.1936); Corp v. Joplin Cement Company, 337 S.W.2d 252, 255 [2] (Mo.banc 1960); Downs v. Durbin Corporation, 416 S.W.2d 242, 246 [5] (Mo.App. 1967). This principle of workmen’s compensation law in Missouri, presently known as the “dual purpose” exception to the “going and coming” or “to and from” rule of exclusion is finely framed in the case of Gingell v. Walters Contracting Corporation, 303 S.W.2d 683, 688, 689 [3] (Mo.App.1957), where this court said, l.c. 688, 689:

“Some of the decisions have construed this doctrine to be applicable only when the primary purpose of the trip is on the employer’s business, or sometimes referred to as the ‘dominant purpose’ test. Judge Cardozo used no such language. He said it was sufficient if the business motive was a concurrent cause of the trip. He then defined ‘concurrent cause’ by saying that it meant a cause which would have occasioned the making of the trip even if the private mission had been cancelled. As we understand this formula, it is not necessary that, on failure of the personal motive, the business trip would have been taken anyway by this particular employee at this particular time. It is enough that some one would have had to make the trip to carry out the business mission. If the trip would ultimately have had to be made, and if the employer got this necessary item of travel accomplished by combining it with the employee’s personal trip, it would be a concurrent cause of the trip, rather than an incidental appendage or afterthought. There is no occasion to weigh the business and personal motive to determine which is dominant.” (Emphasis that of the Gingell court)

This exposition in Gingell of the “dual purpose” exception was declared to be sound, and was followed by the Supreme Court in Corp v. Joplin Cement Company, 337 S.W.2d 252, 255-256 [3] (Mo. banc 1960) as in keeping with the rule that the Workmen’s Compensation Act should be liberally construed to effectuate its purpose. Both Gingell and Corp were later followed and reaffirmed by this court in Downs v. Durbin Corporation, 416 S.W.2d 242, 246, 247 [5] (Mo.App.1967) and Cowick v. Gibbs Beauty Supplies, 430 S.W.2d 626, 629-630 [1, 2] (Mo.App.1968).

Of course, each case involving the question of whether an injury or death of an employee occurs within the course and scope of his employment and is, therefore, compensable, must be determined from the facts and circumstances of that particular case, and this is also true where the resolu- ' tion of that question involves the “dual purpose doctrine”. In the case at bar, such resolution is entirely dependent upon whether or not such doctrine may be properly applied. This Court is, of course, aware of the restrictions ordinarily limiting the scope of appellate review in Workmen’s Compensation cases. Such rules are not applicable in this case for the reason that the basic controlling facts are not in dispute and the evidence is not in conflict.

This was recognized by the Industrial Commission. As part of its award, it found, “The facts in this case are largely undisputed and the major dispute is a question of law”. Indeed, a meticulous examination of the record reveals a complete absence of any dispute as to any material fact. Where facts are not in dispute the question for determination becomes one of law “irrespective * * * of whether it was of law or of fact as presented to the commission below”, Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909, 915 [11] (1935); Kunce v. Junge Baking Co., 432 S.W.2d 602, 606 [3] (Mo.App.1968); Corp v. Joplin Cement Co., 337 S.W.2d 252, 258 [7] (Mo. banc 1960).

Under these circumstances, the finding of the Commission in this case, that the trip from Chillicothe to Marshall during the course of which decedent Cox met with his fatal accident, did not arise out of and in the course of his employment and that the “dual purpose doctrine” was not applicable, is not binding upon a reviewing court.

A summary of the evidence reveals that on November 13, 1975, when Gerald Cox met his death, he was 31 years of age and left as dependents his wife, Susan K. Cox, also 31 years of age, and one daughter, . Susan Evelyn Cox, aged 9 years. At the time of his death, he was employed by Copeland Brothers Construction Company as a plumber foreman on a number of low-cost housing projects in various communities in north central Missouri. Frequently, two or more of these projects were in progress in various stages and construction at the same time and Cox was in direct charge as foreman for all plumbing installations. He had from 4 to 6 plumbers working under him and he also did work in the actual construction and installation of plumbing on the various jobs.

The company-employer was owned equally by Jerry Copeland and his brother Gene Copeland, who were also the managing officers. The company maintained an office and warehouse at Chillicothe, Missouri and also a business office in the Kansas City area, and both the Copelands and the Cox family made their homes at Chillicothe, as did many of the company’s employees, including the plumbers working under Cox. All of the plumbers, including Cox, worked upon an hourly wage basis for time actually spent on the job sites and the company furnished no transportation or mileage payments to Cox and his men to and from the job sites and their homes.

The evidence established that in addition to the manual plumbing work which Cox performed at the construction sites he was furnished a set of plans and specifications on each job; he initially assisted Jerry Copeland in figuring bids on various jobs either at his or Copeland’s home at Chilli-cothe at night or other times when not working; and on jobs undertaken he would also spend time at his home or Copeland’s working on the plans and specification book and mark his set for changes or corrections. Minor changes he would go ahead as foreman and make them, but major changes involving use of parts other than those specified or involving an increase in cost would require the architect’s approval and would always be discussed with Jerry or Gene Copeland, who would undertake to obtain such prior approval. The set of plans and specifications used by Cox as plumbing foreman with the changes noted formed the working basis from day to day on the various jobs. In addition to these functions, Cox would frequently meet with his men in Chillicothe at night and give them instructions for the next day’s work on a particular job when he would not be physically present at such job because of duties elsewhere on other job sites. While most of the materials for the various jobs were delivered at the job sites by the suppliers, it was part of Cox’s responsibility to see that needed plumbing material was available when needed on the job, and he was supplied a key to the company warehouse at Chillicothe and upon occasion stopped there in the early mornings while en route to the job to pick up needed material or company tools and equipment. He was not paid for transportation or for these efforts performed after or before work hours at Chillicothe.

In addition, Cox was subject to call from one site to another during work hours in case of emergencies or when his services were needed at another job. He was paid his regular wage on these occasions for the time consumed in transportation (sometimes substantial distances) and for time spent at the place to which he was directed. These duties sometimes occurred after regular work hours and on those occasions he was paid extra-time wages. There was also evidence that part of his duties was to keep time records on his men since the job sites did not have time clocks.

On the day of Cox’s fatal accident, he was driving his pickup truck from his home in Chillicothe to Marshall, Missouri where one of Copeland’s projects was under construction. One Charley Duncan, another employee of Copeland, was riding with him, according to the testimony of Mrs. Cox.

Wayne Cunningham, Jr., who had worked under Cox for approximately a year as an assistant plumber and who succeeded Cox as foreman, testified that he frequently rode with Cox to the job sites and that Cox carried company equipment in his truck, such as pipe or drainage fittings, and other material and tools, and always had his set of working plans and specifications in his truck, and that Cunningham frequently consulted Cox on the job with reference to the plans and specs and the changes that Cox had made thereon.

Following the accident and on the same day, Cunningham and Jerry Copeland went to the garage where the Cox truck had been towed and secured the material, tools, plans, papers and “stuff” which had been in the truck. These were taken to the Cox garage in boxes. He stated that Cox had strikers, hole saws and drills belonging to Copeland and a small personal tool box, in addition to the customary fittings, etc. He stated that these were later separated and divided as to Cox’s and Copeland’s ownership. When Cunningham found that Cox’s plans and specs had been left in the Cox garage, he went to get them, and this testimony appears:

[Direct Examination of Wayne D. Cunningham, Jr. by Mr. Murphy:]

“Q. Later on did you need those plans?
A. Yes, sir.
Q. Why?
A. Well, I had to have those plans to have an idea of the fittings that had been used before.
Q. Didn’t the Copelands have a set of plans? Why did you use Cox’s plans?
A. They were the ones he had worked with and had various markings on them and on some of them there would be amounts of fittings.
Q. You mean markings Cox had made in conjunction with those the architect authorized?
A. I presume, yes.
Q. Is it a fair statement to say, sir, that if those plans were not on a job site that somebody would have to go get those plans?
A. It could be possible, yes.
Q. How would you know what you were doing unless these plans were produced at the job site?
A. You would have to borrow someone else’s or write a new list. It would be like starting over.
Q. What about the spec book? Is that of any importance?
A. It is to the plumber.
* * * »
(Emphasis added)
“Q. Why would you need Cox’s spec book?
A. Because it was the one he worked with.
******
Q. If work had been authorized by the architect, changes and so on marked on the blueprints, wouldn’t you have to have the blueprints to find out what the changes were?
A. Yes.”

When Cunningham was being interrogated as to the various markings on the Cox blueprints, this appears:

“REFEREE: If you can answer the question — if you know why they were there and who put them there.
A. Being involved with plumbing, I would know why they were put there. I took over the job for a week while Mr. Cox was on vacation and I had to have these prints.” (Emphasis added)
* * * * * *
Q. (By Mr. Muprhy) If you had a set of blueprints without the plumber’s changes marked on them as shown in this exhibit, would you have to go back and start over again?
A. * * * if a plumber didn’t have this and know this change was made, he possibly would put his piping in the wrong spot.” (Emphasis added)

Jerry Cunningham testified that a copy of the plans and specifications were kept in the company office and were available; that these were called “as built” and during the course of a job the major changes requiring the architect’s approval would show thereon. The set used by Cox would show his minor changes, day to day, and eventually both sets would be completed to show “as built” upon completion. He stated that the plumbing foreman “needed a set of prints in order to do the work ”. While he “welcomed” Cox’s work on the plans, he was not paid for that. The following appears in Mr. Jerry Copeland’s testimony:

“Q. Was Gerald Cox good at bringing such things (changes in plans) to you attention?
A. He was one of the best employees we have ever had.
* * * * * *
Q. What I am getting at, are you telling this Referee that the set of plans Mr. Cox had in his possession had no value to Copeland Brothers as of the morning of Mr. Cox’s death?
A. Yes, they had some value.
Q. What value?
A. Any item on here that was a minor change would have helped the plumbing foreman who assumed Mr. Cox’s duties. It would have helped him to see if there had been any minor changes. Any major changes would have been so noted, the change order or letters to the architect or on our as-built drawing, which we have to keep according to the plans and specifications.”

Further, Jerry Copeland testified:

“Q. You talked about Cox not being paid for over-time or extra work or things of that nature.
A. No, he was paid for a lot of extra time. Now, the times he spent with me going over this stuff he didn’t charge me for.
Q. He could have?
A. He could have.
Q. But he didn’t ?
A. Yeah.
Q. It wasn’t within the scope of his employment?
A. No.
Q. That wasn’t part of his job?
A. He helped me because he wanted to help me the same as I loaned him tools. It worked both ways.
Q. Why did you give him a set of plans he could make minor changes on?
A. For his own convenience.
Q. It was to help you, wasn’t it?
A. In the long run it helped me, but it was not part of his job to work on them at night and not get paid for it. He done this because he was a conscientious worker.
Q. You knew he was doing it ?
A. Yes.
Q. You and he worked on it together ?
A. Yes.” (Emphasis supplied)

The whole record in this case leads to the irresistible conclusion that it was necessary for the progress of the Marshall, Missouri job of the employer that the corrected and changed plans and specifications be made available upon the job site upon a day to day basis. This does not mean (and no one claims) that had these corrected plans of Cox’s been destroyed that the job could not be completed but only under the necessity to “start all over” as to changes and only at the expense of considerable loss of time and presumptively profit to the employer. Neither will the record disclose any fact other than that Cox was a hardworking, conscientious, dedicated employee, who spent considerable time while not actually on a job in his employer’s interest and in an endeavor through his work upon the plans and specifications to keep the construction jobs upon a current and ongoing basis with reference to the plumbing. It is, of course, readily conceded that one of the purposes of his trip from Chillicothe to Marshall, Missouri, which resulted in his death, carried with it a personal reason — he wanted to get to work. But it was clearly, as a matter of law, a dual cause for this trip, a dual service accomplished thereby for his employer. As declared in Gingell, supra, it is not incumbent upon either the claimants or this Court to determine which cause was the dominant cause. If they were concurrent causes, as they clearly were, the dual purpose exception must govern and find significant application upon this record.

This Court is reaching the conclusions here expressed is mindful of the legislative admonition that the terms of the Workmen’s Compensation Act shall be liberally construed with a view to the public welfare. This statutory provision is to be given great weight. The area where public welfare ceases to be a general, vague term, as here applied, becomes immediately clear by the judicial pronouncements throughout the years that the Workmen’s Compensation Act is calculated to relieve the burden of workers incapacitated by injuries or dependents deprived of support by death from the public and place that burden where it properly belongs, upon industry. Further, the mandate for liberal construction means that the benefits should be extended to the largest possible class of workers and the denial of those benefits should be decreed to the smallest possible class. Hickey v. Board of Education, 363 Mo. 1039, 256 S.W.2d 775, 777 [2-5] (1953); American Oil Company v. Pierce, 472 S.W.2d 458, 462 [5] (Mo.App. 1971).

Considering the character of and all of the circumstances surrounding decedent’s employment and the particular facts and circumstances of this case, the judgment of the Circuit Court herein is reversed and the cause remanded to said court with the direction that it, in turn, remand the case to the Industrial Commission of the State of Missouri with directions to reinstate the award to the dependents of the decedent entered by the hearing Referee in this matter.

All concur.