author: GANT, Judge.

text:
    James R. YOCOM, Commissioner of Labor, Commonwealth of Kentucky, Appellant, v. BURNETTE TRACTOR COMPANY, INC., Appellee.
    Court of Appeals of Kentucky.
    May 27, 1977.
    Discretionary Review Granted Oct. 4,1977.
    Kenneth E. Hollis, Frederick G. Huggins, Peter J. Glauber, Thomas M. Rhoads, Gen. Counsels, Kentucky Dept, of Labor, Frankfort, Bert T. Combs, Louisville, for appellant.
    Hal Warren, Warren & Warren, Fulton, for appellee.
    Before MARTIN, C. J., and GANT and PARK, JJ.
   GANT, Judge.

This case was tried before the Franklin Circuit Court on an agreed stipulation of facts which indicated that on Wednesday, March 17, 1976, at approximately 9 a.m., a Compliance Officer for the Kentucky Occupational Safety and Health Program under the Kentucky Department of Labor, which will hereinafter be referred to as KOSHA, called upon the Burnette Tractor Company in the performance of his duties and for the purpose of a routine safety and health inspection. Mr. N. W. Burnette, president of the company, questioned the Compliance Officer’s authority to make such an inspection, stating that he did not consider the law constitutional, and inquired whether the officer had a court order or a search warrant based upon probable cause. The Compliance Officer stated that he had no court order or search warrant or no knowledge upon which to base such information but was relying entirely on Chapter 338 of the Kentucky Revised Statutes. After being refused admission, the Compliance Officer left the premises and this action resulted, being a petition for a temporary and permanent injunction, mandatorily requiring the Appellee to permit the Kentucky Department of Labor to enter his premises without further delay to conduct an inspection.

Appellant relies upon Ky.Rev.Stat. 338.-101, which provides, in part, as follows:

(1) In order to carry out the purposes of this Chapter, the Commissioner, or his authorized representative, shall have the authority:
(a) To enter without delay and advance notice any place of employment during regular working hours and at other reasonable times in order to inspect such places, question privately any such employer, owner, operator, agent, employee, or employee’s representative, and investigate such facts, conditions, practices, or matters deemed appropriate to determine the cause of, or to prevent the occurrence of, any occupational injury or illness.

The Appellee relies upon the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution relating to the rights of the people to be secure in their persons, houses, property, etc. from warrantless searches.

Before proceeding further with this opinion, the Court wishes to state that we are totally aware of the fact that a similar case is now pending before the Supreme Court of the United States in the case of Barlow’s, Inc. v. Usery, 424 F.Supp. 437 (D. Idaho 1976). However, we feel that it is our obligation to decide this case as it relates to the Constitution of Kentucky.

The history of warrantless inspections by administrative bodies under the guise of promoting public health and safety is an interesting one. In two cases decided on the same day, the Supreme Court of the United States handed down two landmark decisions. The first of these was the case of Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) in which the Supreme Court held that a person has the constitutional right to insist that a search warrant be obtained before an administrative inspection of a private residence pursuant to a municipal housing code. In the companion case of See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), the Court held that the Fourth Amendment also applies to the inspection of a commercial warehouse pursuant to a municipal fire, health and housing program.

The effect of these two cases was narrowed somewhat by the cases of Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) and United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), in which cases the Court upheld warrantless inspections of a retail liquor dealer and a pawn shop which handled guns and ammunition, the inspection of the latter being made pursuant to the Gun Control Act. These latter two cases were obviously based upon the fact that both the liquor and gum industries had been long regulated and required a license, indicating that when one chooses to engage in a regulated business or accepts a federally regulated license, he engages in this business with the knowledge that he will be subject to effective inspection.

In the case of Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), the Supreme Court, relying on Camara and See, supra, invalidated a statute and regulations permitting war-rantless search of vehicles within 100 miles of an international border and distinguished Colonnade and Biswell as relating to “federally licensed and regulated enterprises.” Subsequently, in Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974), the Court reaffirmed the holdings of Camara and See but upheld a warrantless visual inspection from the outdoor premises of a business under the “Open Fields Doctrine.”

The federal district court cases involving OSHA, the federal counterpart of KOSHA, have an equally interesting background. The first of these cases was the case of Brennan v. Buckeye Industries, 374 F.Supp. 1350 (S.D. Ga. 1974) in which the District Court in Georgia upheld the right of an OSHA inspection without a warrant or a court order. This case seemed to rely primarily on Terraciano v. Montanye, 493 F.2d 682 (2d Cir. 1974). While the Brennan case was not an instance of an inspection upon a federally licensed or regulated premise, the Terraciano case was a search of premises pursuant to a New York statute authorizing the search of premises limited to orders, prescriptions or records relating to narcotics, depressants or stimulants.

After Buckeye Industries came the case of Brennan v. Gibson’s Products, Inc., 407 F.Supp. 154 (E.D. Tex. 1976), in which a three-judge panel, fully aware of the holding in that former case, denied the right of inspection pursuant to OSHA, of a discount store but upheld the constitutionality of the statute, stating that “Congress intended nothing beyond its constitutional powers and that the requirement of a search warrant for resisted inspections was not made explicit in part because the need for a warrant was clear . . . ” The same result was reached in the case of Dunlop v. Hertzler Enterprises, Inc., 418 F.Supp. 627 (D.N.M. 1976), in which case the search was denied but the constitutionality of the statute was upheld.

The last case on this question was the case of Barlow’s Inc. v. Usery, supra, in which not only was the warrantless search prohibited but the act was held unconstitutional because of the failure of Congress to “employ language declaring that a warrant must first be obtained . . . ” As indicated above, it is this case which is currently under review by the Supreme Court.

It is the opinion of this Court that the reasoning in Gibson’s Products, Inc. and Hertzler Enterprises, Inc. is sound and that the opinion of the Supreme Court in See v. City of Seattle, supra, must be followed. As stated in that opinion by Justice White:

The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by a warrant.

In the absence of any showing that the business of the Appellee, Burnette Tractor Company, Inc., is inherently dangerous, such as mining operations where inspections have been permitted under Mine Safety Acts; or in the absence of any showing that their business was subject to Federal or state regulation and/or license, such as guns, liquor and drugs; or pervasively regulated or an industry with a long history of regulation, a search and inspection of the closed areas of the premises, i.e., those portions of the premises not customarily open to the public, will not be permitted without a search warrant or court order, either of which must be based upon a showing of probable cause.

The judgment of the lower court is affirmed.

All concur.


source: Caselaw Access Project

author: REYNOLDS, Judge.

license: Public Domain

text:
    Ann P. DENTON, Administratrix of the Estate of James F. Ping, Deceased, Appellant, v. The TRAVELERS INSURANCE CO. and Iva Mildred Thomas Ping, Appellees.
    Court of Appeals of Kentucky.
    June 24, 1977.
    Discretionary Review Granted Oct. 4,1977.

      David Denton, Paducah, Gary L. Herfel, Cincinnati, Ohio, for appellant.
    Wm. B. O’Neal, Cincinnati, Ohio, for Travelers Ins. Co.
    James A. Dressman, Covington, for Iva Ping.
    Before REYNOLDS, HAYES and GANT, JJ.
   REYNOLDS, Judge.

Appellant, administratrix of deceased brother’s estate, sued appellee, The Travelers Insurance Company, for life insurance proceeds which the Company had paid to the designated beneficiary, Iva Ping, the decedent’s divorced wife. The Company had filed a third party action against the former wife for indemnity. The Kenton Circuit Court entered a summary judgment for the appellees, ruling that Travelers was without notice of any other claim to the proceeds and further that the interest of the wife as beneficiary was not necessarily terminated by divorce. This appeal followed.

James Ping was an insured under a group life insurance policy issued by the appellee, The Travelers Insurance Company. On May 22, 1971, he designated Iva Ping, ap-pellee, as the policy beneficiary. James and Iva were subsequently married on January 1, 1972, and were divorced on April 9, 1973. James Ping died on August 16, 1973, and a sister, Ann Denton, qualified as personal representative of the estate. The appellee insurance company paid the proceeds of the policy to Iva Ping on October 16, 1973, as she remained, of record, the designated beneficiary. On October 24, 1973, the appellant, decedent’s estate, gave notice of its claim under the policy and was refused payment of the insurance proceeds from the appellee insurance company.

It is maintained that the insurance company failed to plead an affirmative defense of payment. The insurer’s answer, in a separately designated paragraph, sufficiently raised an affirmative defense with reasonable clarity as to show that payment had been made within the terms of the policy to the person then designated as being entitled to the benefits. CR 8.03 and 10.02. We discern no difficulty with an analysis of the pleading. The insurer’s position is clearly understandable, and the matter substantially constitutes an affirmative defense of payment by the insurer so as to raise its discharge from liability from other claims under the insurance policy. KRS 304.14-260. There was no issue of notice, prior to payment, so as to prevent the insurer from being fully discharged from all claims under the policy, nor was there any irregularity or principle of insurable interest to void the application of KRS 304.14-260. Aetna Life Insurance Co. v. Simmons, Ky., 277 S.W.2d 13 (1955). On this issue, the trial court properly entered summary judgment for the appellee, The Travelers Insurance Company.

The parties by oral argument and brief thoroughly reviewed and analyzed the appellant’s remaining issue, that the trial court erred in holding that the divorce decree did not extinguish the ex-wife’s expectancy as the beneficiary in the decedent’s group life insurance policy. The courts under their decisions long anchored to legal principles established in Kentucky have hewed to a general principle that the interest of one spouse as the beneficiary of insurance on the life of the other is divested by divorce. Justice Palmore in Shellman v. Independence Life and Accident Insurance Company, Ky., 523 S.W.2d 221 (1975), has stated that the rationale for such a result has been that it was compelled by the restoration statutes, KRS 403.060 and 403.065. These statutes had been repealed at the time of the judgment of divorce between Iva and James Ping and were replaced by KRS 403.190.

An examination of the statutes in question is necessary in order to ascertain whether the repeal of KRS 403.060 and 403.065 and their replacement with KRS 403.190 was sufficient to change the law in Kentucky. Relative to the subject matter of this case, KRS 403.065 provided: “Every judgment for a divorce . . . shall contain an order restoring any property not disposed of at the commencement of the action . . .” (Emphasis added).

KRS 403.060(2) provided: “Upon final judgment of divorce . . . each party shall be restored all the property . . . ” (Emphasis added).

KRS 403.190(1) states: “In a proceeding for dissolution of the marriage . the court shall assign each spouse’s property to him.” (Emphasis added).

Thus, we are again required to play the game of semantics and determine whether or not the changing of the word “restore” to the word “assign” has the effect of altering a long line of cases in Kentucky which have held that a divorce abrogated every right of the divorced party as beneficiary of a policy of insurance on the life of another unless there was a showing that the divorced party had paid the premiums for the insurance on the life of the other. We find no meaningful change in the effect of the new law.

The insurance contract was of a class identified as a group policy based upon an employment relationship and did not require any further affirmative action, such as periodic payment of premiums, by the insured. There is little distinction, if any, between the case before us and the case of Bissell v. Gentry, Ky., 403 S.W.2d 15 (1963). In both that ease and the case at bar there was an insurance policy carried by the company on the life of the husband on which neither the husband nor the ex-wife paid any of the premiums. In that case, the court held that an absolute divorce bars the wife’s recovery as a designated beneficiary of insurance policies on her husband’s life. The court stated therein:

This court has held consistently that the interest of the spouse as beneficiary comes squarely within the restoration provisions of KRS 40B.060, and as a result, every right of a divorced party as a beneficiary of a policy of life insurance on the life of the other is extinguished, except in cases where the policy on the life of one of the parties is obtained during the marriage and the other paid the premiums during the marriage. In such case he or she is entitled to continue payments and receive the proceeds of the policy upon maturity.
* sfc * * * ⅜
There is a statement that neither Bis-sell nor his ex-wife paid any of the premiums on the policy in issue. It was a group policy furnished by Bissell’s employer as a part of the terms of his employment. The employment of Bissell was the only consideration for issuing this policy and paying the premiums necessary to keep it in force. The result is that it is as though Bissell individually procured and paid for the policy.
In Salisbury v. Vick, Ky., 368 S.W.2d 317, this court said, “After the divorce, having been compelled by law to surrender her rights in the insurance contract, the former wife is a complete stranger to it. And, citing Warren v. Spurlock’s Adm’r., 292 Ky. 668, 157 S.W.2d 858: “Under KRS 403.060(2) and 403.065, as construed in Warren v. Spurlock’s Adm’r., (292 Ky. 668, 167 S.W.2d 858), . . . and numerous other cases, every right appellee had in this insurance policy as a beneficiary was abrogated by the divorce.” Bissell, supra at 16, 17.

In the instant case, the only distinguishing feature was the fact that the husband designated his ex-wife as a beneficiary pri- or to their marriage but designated her as his wife and this was clearly in contemplation of the marriage which was subsequently consummated.

The word “assign” is clearly more inclusive than the word “restore” as used in the former statutes. As set out in KRS 403.190, “assign” would include both restoration of the individual property of each spouse and a division of the properties as described therein which constitute marital property. It should be pointed out that while none of the previous cases terminating the right of the designated beneficiary in the insurance policy of a divorced spouse refer to KRS 392.090, this statute was not repealed at the time of the adoption of the so-called “no-fault” divorce and states as follows: “(1) Absolute divorce bars all claim of either husband or wife to the property, real and personal, of the other after his or her decease.” We interpret KRS 403.190 and KRS 392.090 together to dictate that under the circumstances of this case the dissolution of marriage divested Iva Ping of any interest she enjoyed as beneficiary of the life insurance policy of her former husband, James Ping.

Accordingly, the judgment herein is affirmed as to The Travelers Insurance Co. and reversed as to the appellee, Iva Mildred Thomas Ping, and the case is remanded for proceedings consistent herewith.

ALL CONCUR.


author: LESTER, Judge.

text:
    HARLAN COUNTY BOARD OF EDUCATION and Mildred Rowland, Individually and as Superintendent of the Harlan County School District, Appellants, v. Reecie STAGNOLIA, Appellee.
    Court of Appeals of Kentucky.
    Sept. 9, 1977.

      J. K. Beasley, Harlan, for appellants.
    Charles R. DiSalvo, Appalachian Research and Defense Fund of Kentucky, Inc., Barbourville, for appellee.
    Before HOGGE, HOWARD and LESTER, JJ.
   LESTER, Judge.

The Harlan County school authorities appeal from an adverse judgment of the court below which reinstated appellee to the position of assistant principal after his termination as such by the board of education. The circuit judge heard this cause without the intervention of a jury and after making findings of fact and conclusions of law, rendered judgment as aforesaid. In addition, Judge Brock further rendered a written opinion and because of the determinations made therein, we shall treat the same as part of the findings and conclusions.

In litigation such as this, the function of this Court is set forth in CR 52.01 which limits us to a determination of whether the findings of the trial court are clearly erroneous. 7 W. Clay, Kentucky Practice, CR 52.01, Comment 8 (3rd ed. 1974).

Reecie Stagnolia was hired as an assistant principal for the academic year 1971— 1972 and continued in that position through 1974-1975. Even though there was some variation of duties during the last mentioned year, the evidence of the appellant and its principal support the finding that appellee was in fact assistant principal until the end of the 1974-1975 school year thus eliminating any clear error in that determination by the court. Moreover, appellee had administrative tenure within the provisions of KRS 161.765.

1974 was a campaign year for the Harlan County Board of Education and ap-pellee and appellant, Superintendent Rowland, openly supported opposing candidates with appellant’s incumbent being successful. On May 5th of the following year, appellee received a form letter from Rowland to the effect that since federal funds had been reduced and that average daily attendance loss would eliminate teachers paid out of state funds (minimum foundation) then he would not be reemployed. To some extent, this letter was misleading because the evidence of student attendance loss was approximately twenty per year for each of the last five years while the pupil population which would enter the school where Stagnolia worked would soon increase. Furthermore, the testimony of the appropriate state department of education official in charge of minimum foundation funds reflected that Harlan County’s share had consistently increased from 1972 through the first half of 1976. Since appel-lee was not paid out of the federal funds, we find no error in the trial court’s findings as to average daily attendance and available funds as they relate to the issues of this ease.

We are unable to label the circuit court’s findings as to the superintendent’s and the assistant principal’s political activities as erroneous. Judge Brock determined that appellee “was dismissed in 1975 along with thirty-five other teachers. Thereafter, he was rehired at his assistant principal’s salary at Green Hill Elementary School as an elementary teacher”. Of the thirty-five teachers mentioned by the court, twenty-six were Title I funded while the balance were paid out of state or local revenues. In spite of the trial court’s conclusion that Stagnolia was “dismissed”, appellants continue to argue that he was “suspended” pursuant to KRS 161.800 but regardless of what word is used, appellee had no employment. It should be remembered that it was not until after he filed his complaint in this matter that he was offered and accepted the position of elementary teacher and it cannot be said that a litigant should be taxed for attempting to sustain himself. Moreover, Stagnolia had a contract for personal services and this made it incumbent upon him to minimize his damages by seeking similar employment in the locality. Abrams v. Jackson County Board of Education, 230 Ky. 151, 18 S.W.2d 1000 (1929). See also 41 A.L.R.2d 955, 958. Of course, the rule applies only where the termination was wrongful.

Political reprisals by superintendents and a majority of board members brought about the enactment of KRS 161.-162 which prohibits such action. In the case at bar, the circuit court specifically determined:

It is the Court’s belief that because of his controversial political activity he has been arbitrarily and capriciously discriminated against in the pursuit of his chosen work.

The latest expression of the Supreme Court upon the prime issue in this appeal may be found in Calhoun v. Cassady, Ky., 534 S.W.2d 806, 808 (1976) in that

(i)f the primary reason for making the transfers as found by the trial court was to punish the teachers and administrators for their political activities, then such action was arbitrary and void. Simply because the superintendent could have been otherwise motivated by some proper purpose does not mean that these other purposes played a real part in his decision to make the transfers. The trial court could not breathe new life into an otherwise void and arbitrary action.

As a matter of proof, there need be no more than an inference of arbitrariness, Snapp v. Deskins, Ky., 450 S.W.2d 246, 252 (1970), and in the matter at hand, the evidence disclosed much more than an inference that the board acted as so found by the court below.

We will not dwell upon appellee’s constitutional rights concerning his privileges as a teacher and state employee with reference to freedom of speech but will content ourselves in directing the attention of the parties to Pickering v. Board of Education, 391 U.S. 563, 20 L.Ed.2d 811, 88 S.Ct. 1731 (1968) and Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976).

Counsel devoted extensive portions of their respective briefs to the issue of whether Stagnolia should have been granted a demotion hearing as is delineated in KRS 161.765 and we believe they are entitled to an answer. Recalling that appellee was an administrator, KRS 161.720(8), with tenure as such, and that subsequent to his termination he was reemployed as an elementary teacher, it cannot be argued otherwise than that he was in fact demoted. KRS 161.765(2) is one of the most strongly worded statutes enacted by the legislature when it says:

(a)n administrator who has completed three (3) years of administrative service, not including leave granted under KRS 161.770, cannot be demoted unless and until the following procedures have been complied with: (emphasis added)

Unlike KRS 161.790, the above mentioned statute implies regardless of reason an administrator must be afforded a hearing in the event of demotion while KRS 161.790 applies where there is the element of misconduct. The foregoing statutory language being unequivocal, we are of the opinion that the Harlan County Board of Education should have conducted a hearing under the circumstances involved in the instant ease.

Finding no error in findings of fact of the Harlan Circuit Court, the judgment is affirmed.

All concur.


author: DONNELLY, Judge. FINCH, Judge,

text:
    The HOME BUILDERS ASSOCIATION OF GREATER KANSAS CITY et al., Respondents, v. The CITY OF KANSAS CITY, Missouri, Appellant.
    No. 59725.
    Supreme Court of Missouri, en banc.
    Sept. 12, 1977.
    Rehearing Denied Oct. 11, 1977.
    Richard N. Ward, Asst. City Atty., Kansas City, for appellant.
    Theodore C. Beckett, Kansas City, for respondents.
   DONNELLY, Judge.

In this class action for declaratory and injunctive relief, The Home Builders Association of Greater Kansas City, and certain subdividers of land, challenge the constitutionality of Section 31.32 of Chapter 31 of the General Ordinances of Kansas City, Missouri. Section 31.32 reads as follows:

“(a) Dedication. Subdivision plans shall dedicate land for park uses at locations designated in the comprehensive plan, or the official parks plan adopted by the Board of Parks and Recreation Commissioners or as determined by the subdi-vider and the staff of City Development and Parks and Recreation, at the rate of four (4) acres per one hundred (100) living units or nine percent (9%) of the merchantable land. When the percentage of merchantable land will result in a tract of less than four (4) acres, the City Plan Commission may require the open space to be located at a suitable place on the periphery of the subdivision, so a more usable tract will result when additional open space is obtained when adjacent land is subdivided. In all cases, the developer will dedicate such approved park land to the city for park purposes as a condition of final subdivision approval. All land to be dedicated to the City for park purposes shall have the prior approval of the Board of Parks and Recreation Commissioners, and shall be shown and marked on the plan as ‘dedicated to Kansas City, Missouri, for parks and/or recreation purposes’, and the plat will be so endorsed by the President of the Board of Parks and Recreation Commissioners. When the percentage of merchantable land indicates an open space parcel of less than two (2) acres, or in the opinion of the City Plan Commission will create an insurmountable hardship to the development, the City Plan Commission at its option may require the subdivider, in lieu of dedication of open space to pay a sum of money per planned housing unit in lieu of dedication.
“(b) Cash in lieu of land dedication. When the dedication of park land, as required by this section has been determined to work an undue hardship on the development, or the tract size is inadequate for the intended purpose in the opinion of the City Plan Commission, the subdivider shall deposit with the City Treasurer for the Parks and Recreation Acquisition and/or Development Trust Fund prior to receiving a building permit, a cash payment without recourse or the right of recovery, equal to sixty dollars multiplied by a designed number of living units in the subdivision, less a credit that any land actually dedicated for park purposes, bears to the proportion of total land required for park purposes in subsection (a) hereof. Such funds shall be used for the acquisition, development or improvement of a public park generally, within one half-mile of the periphery of the subdivision by the Parks and Recreation Department as authorized by the City Charter.
“(c) Private development and operation of park-recreational open space. The applicant may comply with the requirements of this section to furnish land for recreational purposes by providing an area with a community unit project, group housing project, GP district or any other planned district under the zoning ordinance provisions, which shall meet the minimum standards as required in section 31.32(a) and (2) provided that such area shall be developed and maintained by the subdivider or by the lot owners in the subdivision as private property under a legal arrangement approved by the city counselor as adequate to insure its continued operation and maintenance.
“The above provisions of this subsection (c) shall not apply to any subdivision consisting of single occupancy, single lots.”

Trial was had without a jury and the Circuit Court of Jackson County entered judgment which reads in part as follows:

“The fixed percentage dedication requirement of Sec. 31.32(A) is an arbitrary requirement unsupported by any showing of necessity and as such constitutes an unconstitutional taking of Plaintiffs’ property without compensation in violation of Article I, Sections 10 and 26 of the Constitution of the State of Missouri and the Fifth and Fourteenth Amendments to the Constitution of the United States and is declared to be unconstitutional and void.”

An appeal was then taken to this Court by the City of Kansas City.

This case represents another episode in a series of clashes between the exercise of police power by a city for the purpose of protecting the health and welfare of its citizens and provisions that private property shall not be taken for public use without just compensation. For a discussion of the general question, see Vol. 1, Nichols’ Law of Eminent Domain, § 1.42. For a discussion of the narrower question attending forced dedications for the purpose of preserving open space, see Vol. 2, Nichols’ Law of Eminent Domain, § 6.3511 and the cases collected in Annotation, Validity and Construction of Statute or Ordinance Requiring Land Developer to Dedicate Portion of Land for Recreational Purposes, or Make Payment in Lieu Thereof, 43 A.L.R.3d 862. See also: Johnston, Constitutionality of Subdivision Control Exactions: The Quest for a Rationale, 52 Cornell Law Quarterly 871 (1967); Landau, Urban Concentration and Land Exactions for Recreational Use: Some Constitutional Problems in Mandatory Dedication Ordinances in Iowa, 22 Drake Law Review 71 (1972); and Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 Yale Law Journal 385, 481-486 (1977).

In 1926, the United States Supreme Court decided the landmark case of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. The Court upheld a zoning ordinance and significantly said (at pages 386 and 387, 47 S.Ct. at page 118):

“Building zone laws are of modern origin. They began in this country about twenty-five years ago. Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course, must fall.”

The Court then declared (at page 395, 47 S.Ct. at page 121) the test of constitutional validity of an ordinance to be whether its “provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”

In 1961, the Supreme Court of Illinois decided the case of Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill.2d 375, 176 N.E.2d 799. The Court held an ordinance requiring a subdivider to dedicate a portion of land for public use invalid, and applied the following test (176 N.E.2d 799, at 802):

“. . . If the requirement is within the statutory grant of power to the municipality and if the burden cast upon the subdivider is specifically and uniquely attributable to his activity, then the requirement is permissible; if not, it is forbidden and amounts to a confiscation of private property in contravention of the constitutional prohibitions rather than reasonable regulation under the police power.”

In 1971, the Supreme Court of California decided the case of Associated Home Builders, Inc. v. Walnut Creek, 4 Cal.3d 633, 94 Cal.Rptr. 630, 484 P.2d 606. The Court held an ordinance requiring dedication of land or payment of fees as a condition to approval of a subdivision map valid, and held (94 Cal.Rptr. 630, at 634, 484 P.2d 606, at 610) that the statute authorizing it “can be justified on the basis of a general public need for recreational facilities caused by present and future subdivisions. The elimination of open space in California is a melancholy aspect of the unprecedented population increase which has characterized our state in the last few decades. Manifestly governmental entities have the responsibility to provide park and recreation land to accommodate this human expansion despite the inexorable decrease of open space available to fulfill such need.”

In 1972, in State ex rel. Noland v. St. Louis County, 478 S.W.2d 363, 367 (Mo.), this Court held that “there must be some ‘reasonable relationship’ between the proposed activity of the landowner and the exactions of government.” This Court then found that the requirements that the subdi-vider relocate a new road and widen and pave an old road were not reasonably related to the activity of the subdivider.

We have concluded that the Pioneer Trust rule, in view of Euclid, supra, and Noland, supra, is too restrictive and should be modified. The fact that a subdivision merely threatens to “contribute” to a community need for open space should not exempt it from bearing a fair share of the burden of meeting the need. We adopt the following rule in Missouri as to mandatory dedications for recreational purposes: If the requirement is within the statutory grant of power to the municipality and if the burden cast upon the subdivider is reasonably attributable to his activity, then the requirement is permissible; if not, it is forbidden and amounts to a confiscation of private property in contravention of the constitutional prohibitions rather than reasonable regulation under the police power. Insofar as the establishment of a subdivision within a city increases the recreational needs of the city, then to that extent the cost of meeting that increase in needs may reasonably be required of the subdivider.

We turn then to a consideration of the issues in this case. We must hold the trial court erred because it placed the burden of proof on the wrong party. An ordinance enacted by the legislative body of a city pursuant to the police power is presumed to be valid. The person (or persons) challenging the constitutionality of the ordinance on the ground of unreasonableness has the burden of proving unreasonableness. Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, 1040, 246 S.W.2d 771, 778 (banc 1952); Euclid v. Ambler Realty Co., supra. The court placed the burden of justifying its ordinance on the City of Kansas City. It erred in this regard.

Accordingly, the case must be remanded for new trial. We suggest that on re-trial the attorneys for the subdividers introduce evidence on the fairness of specific exac-tions as to specific properties. Cf. Euclid v. Ambler Realty Co., supra, 272 U.S. 365, at 397, 47 S.Ct. 114; Collis v. City of Bloomington, 246 N.W.2d 19, 27-28 (Minn.1976); and State ex rel. Noland v. St. Louis County, supra.

The judgment is reversed and the cause remanded.

MORGAN, C. J., and BARDGETT, HENLEY and SEILER, JJ., concur.

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

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

FINCH, Judge,

dissenting.

I respectfully dissent.

The judgment entered herein by the trial court contained these findings:

“1. The requirement of Sec. 31.32 of the subdivision regulations of the Code of General Ordinances of the Defendant City, that developers dedicate land to Defendant as a pre-requisite for approval of a subdivision plat is in accordance with statutory authority vested in Defendant City.
“2. Sec. 89.410 V.A.M.S. specifically authorizes Defendant City to require the dedication of land for park purposes as a pre-requisite to approval of a subdivision plat.
“3. The Defendant’s requirement that a developer dedicate some land for park and recreational use prior to approval by City authorities of the proposed development plat is a lawful and constitutional exercise of the police power of the Defendant.
“4. The Defendant’s requirement that a developer dedicate land for park and recreational use is not unconstitutional because some legislative functions are delegated to the Board of Park and Recreation Commissioners of Defendant City.
“5. The provisions of Sec. 31.32(C) do not create an unconstitutionally arbitrary classification in violation of either the State or Federal Constitutions.
“6. The park land dedication requirement is not unconstitutional in that it limits growth in the City and violates Plaintiffs’ constitutional right to travel.
“7. The fixed percentage dedication requirement of Sec. 31.32(A) is an arbitrary requirement unsupported by any showing of necessity and as such constitutes an unconstitutional taking of Plaintiffs’ property without compensation in violation of Article I, Sections 10 and 26 of the Constitution of the State of Missouri and the Fifth and Fourteenth Amendments to the Constitution of the United States and is declared to be unconstitutional and void.”

It then enjoined Kansas City from compelling plaintiffs to comply with Sec. 31.-32(A) as a condition precedent to approval of subdivision plats submitted by plaintiffs.

Kansas City appealed from that judgment. Plaintiffs did not. In commenting on these facts and the issues presented by this appeal, the brief filed in this court on behalf of Kansas City states as follows:

“This appeal is from the Trial Court’s judgment permanently enjoining Appellant from requiring Respondents to comply with Section 31.32(a) of the Subdivision Regulations, as a condition precedent to the approval of subdivision plats submitted by individual Respondents.
“It is important to note some of the holdings of the Trial Court below not appealed by Appellant nor challenged by Respondents and therefore not in issue on this appeal. The court concluded inter alia that:
1. Section 31.32 of the Subdivision Regulations requiring land developers to dedicate land to Appellant as a prerequisite for subdivision plat approval is within the statutory authority vested in Appellant (T. 124).
2. Section 89.410 V.A.M.S. authorizes Appellant to require the dedication of land for park purposes as a prerequisite to approval of a subdivision plat (T. 124).
3. The requirement that a developer dedicate some land for park and recreational use prior to approval by Appellant of the proposed development plat is a lawful and constitutional exercise of the police power of Appellant (T. 124).
“Although the above holdings of the Trial Court are not herein contested on this appeal, they are relevant to the sole holding of the Trial Court which is the subject matter of this appeal.”

The principal opinion reverses and remands this case, holding that the trial court erred because it placed the burden of proof as to reasonableness or unreasonableness of the ordinance provision on the wrong party. It obviously so concludes on the premise that when the trial court stated in paragraph 7 of its findings that the fixed percentage requirement “is an arbitrary requirement unsupported by any showing of necessity * * it was saying that the City had the burden on that issue and had not sustained it. I am not sure that is what the trial court meant. This case was submitted on a lengthy stipulation of facts (113 pages of transcript, plus a deposition incorporated by agreement into the stipulation). It may be that the court was saying that under the evidence the arbitrary across the board requirement of a dedication of 9 per cent of usable space (or a dollar alternative) was not necessary or proper and, hence, the provision was bad. If that is what the court meant, it was not saying that Kansas City had a burden of proof which it did not sustain. However, I suppose that a reversal and remand does no particular harm as it does permit the parties to offer any additional proof and the court can then make its findings and enter its judgment in light of the decision that it cannot place the burden of proof on Kansas City.

While the general rule is that one attacking reasonableness of an ordinance has the burden of proof, I am inclined to the view that the City had the burden of proceeding with the evidence in this case wherein plaintiffs established that the ordinance did what both federal and state constitutions prohibit, namely, takes title to property of citizens without paying compensation therefor. That introduces an additional element not present in the usual case where the issue is merely whether the statutory enactment is reasonable. The law on its face does that which is constitutionally prohibited and the ordinance can stand only if, as an exercise of the police power, it is reasonable and necessary to mandate a divestment of title to property without compensation to protect the health and safety of the public. Under such limited circumstances, it would be proper, in my judgment, to require the City to go forward with the evidence. Under such a rule, the reversal and remand on the basis given would not be required.

The part of the principal opinion to which I most strongly dissent is the paragraph just preceding the portion wherein the judgment is reversed for placing the burden of proof on Kansas City. In that paragraph appears the following:

“We adopt the following rule in Missouri as to mandatory dedications for recreational purposes: If the requirement is within the statutory grant of power to the municipality and if the burden cast upon the subdivider is reasonably attributable to his activity, then the requirement is permissible; if not, it is forbidden and amounts to a confiscation of private property in contravention of the constitutional prohibitions rather than reasonable regulation under the police power. Insofar as the establishment of a subdivision within a city increases the recreational needs of the city, then to that extent the cost of meeting that increase in needs may reasonably be required of the subdi-vider.”

The foregoing paragraph, in my view, undertakes to establish a rule for the future concerning an issue not presented by this appeal. Plaintiffs’ petition alleged that Sec. 31.32 of the Kansas City ordinance, by requiring plaintiffs to dedicate land to the City, takes property from plaintiffs without the payment of just compensation, thereby violating Art. 1, §§ 10 and 26 of the Missouri Constitution and the fifth amendment to the United States Constitution (as made applicable to the states through the fourteenth amendment). The trial court ruled that issue against plaintiffs in paragraph 3 of its findings but plaintiffs have not appealed therefrom or argued that we decide the case on that basis. Instead, they acquiesced in that ruling. The principal opinion seems to recognize that its announcement of a rule which is to apply in the future is not in response to any issue raised on appeal because after stating that rule the opinion says: “We turn then to a consideration of the issues in this case.” Under such circumstances, particularly when what is said is not necessary to the disposition made, we should not gratuitously “rule” upon such an important and far reaching question by endorsing the general proposition that the taking of a developer’s land for park purposes without compensation but rather by forced dedication is constitutional. That matter is simply not before us for decision. Accordingly, the pronouncement in the majority opinion could be characterized as dictum. However, it is couched in mandatory and unambiguous language and is likely to be viewed as guidance by the lower courts who are bound by our decisions and by the public which relies upon them. I question whether we need to or should take that risk.

In my opinion, such a fundamental question as that discussed and purportedly ruled in the majority opinion should be reserved for a case where the issue is squarely raised on appeal. This is particularly true in view of the fact that reported cases, only a few of which are mentioned in the principal opinion, have reached varying results and text writers and law review articles have expressed divergent viewpoints on the subject.

Reserving this question of constitutionality and, hence, of what we will hold permissible in ordinances such as the one here in question would be consistent with the longstanding policy of restraint practiced by this court. The rationale of this policy is that, particularly with fundamental questions involving interpretation of our constitution, all issues should be fully briefed by the parties in a true adversary context and supplemental amicus briefs considered if possible. Such matters ought not be even purportedly resolved in dictum in a case wherein the issue has been, at most, casually addressed by the parties.

The desirability of full adversary briefing on fundamental questions is illustrated by reference to one of the authorities cited with favor in the majority opinion. In Vol. I, Nichols’ Law of Eminent Domain, § 1.42, p. 104, the author points out the difference between taking title to property by eminent domain and exercise of the police power. He states:

“The distinguishing characteristic between eminent domain and the police power is that the former involves the taking of property because of its need for the public use while the latter involves the regulation of such property to prevent the use thereof in a manner detrimental to the public interest.”
Subsequently, the same author, Id., § 142[1], p. 114, says:
“The close connection which exists between the police power and the public health, morals and safety has led many authorities to classify any legislation which has for its object the public health, morals or safety as an exercise of the police power, even if it appears on its face to authorize the levy of a tax or the taking of property for the public use. However, it is universally conceded that when land or other property is actually taken from the owner and put to use by the public authorities, the constitutional obligation to make just compensation arises, however much the use to which the property is put may enhance the public health, morals or safety.”

I do not cite this language as authority for any position on the matter for it is not my purpose to take or indicate any position herein. Instead, my purpose is simply to point out that the above language clearly indicates the author’s recognition of the complexity of the interplay between the police power and the prohibition against taking without compensation. That the language quoted is not noted or distinguished by the majority opinion demonstrates the problems inherent in any attempt to render an opinion without full briefing by genuinely adverse parties. The reliance by appellate courts on the advocacy of the attorneys practicing before them is great because only by this means can there be some assurance that all arguments for each side have been raised for our consideration.

Other examples of arguments which might have been placed before the court had we been squarely presented with the matter purportedly resolved in the majority opinion are not difficult to envision. For example, if one is laying out a new subdivision in Kansas City, he must dedicate 9 per cent of his usable land space, the theory being that the new housing creates additional park needs and the requirement is proper. However, if a developer decides to erect a large highrise apartment building, or several of them, without establishing a new subdivision, he will not be required to dedicate land for park purposes. Additional land, if needed as a result of these developments, would be acquired by conventional methods, usually purchase and, if need be, condemnation.

As further evidence of the importance of refraining from gratuitously deciding an issue not presented by or necessary to this appeal, I would point out that the implications of the rule stated in the principal opinion are not limited to ordinances which require dedication of land for park purposes. For example, in Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill.2d 375, 176 N.E.2d 799 (1961), cited in the principal opinion, the city sought on the basis of the police power to require a subdi-vider to convey without payment therefor 6.7 acres for use of the school district as an elementary school site. Applying what is said in the principal opinion with only the substitution of the word educational for recreational, our rule in such a situation would read as follows:

“If the requirement is within the statutory grant of power to the municipality and if the burden cast upon the subdivider is reasonably attributable to his activity, then the requirement is permissible; if not, it is forbidden and amounts to a confiscation of private property in contravention of the constitutional prohibitions rather than reasonable regulation under the police power. Insofar as the establishment of a subdivision within a city increases the educational needs of the city, then to that extent the cost of meeting that increase in needs may reasonably be required of the subdivider.”

In some cases and articles on this subject, it has been suggested that if it is constitutionally permissible under the police power to take property without compensation (by mandated dedication) for park needs reasonably attributable to the subdivision, it would be permissible to take additional land in the same manner for a new police station and for a new fire station, if the need therefor can be said to be reasonably attributable to the subdivision. It is obvious that the language in the principal opinion would fit by simply substituting police or fire for the word recreational. Is such permissible when that policy would not be available or utilized in areas where new subdivisions were not being platted?

The foregoing illustrations of situations prospectively affected by the proposed ruling are not intended to be all inclusive and I have not attempted to address the merits of whether the proposed rule should be applicable thereto. I have attempted only to demonstrate that the rule which the principal opinion would promulgate has very far reaching ramifications and that we should reserve action thereon at this time since it is wholly unnecessary to the decision which the principal opinion reaches.

      . It should be noted that the ordinance in question does not simply require that some portion of a subdivision be reserved for park and recreational use of occupants of the subdivision with title to be vested in those who own property therein. It requires that title pass to Kansas City for a park which is public and available to everyone.


author: DONNELLY, Judge. BARDGETT, Judge,

text:
    STATE of Missouri, Respondent, v. Russell Terrell RHONE, Appellant.
    No. 59934.
    Supreme Court of Missouri, en banc.
    Sept. 12, 1977.
    Rehearing Denied Oct. 11, 1977.

      James C. Jones, Asst. Public Defender, 2nd Judicial Circuit, St. Louis, for appellant.
    William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
   DONNELLY, Judge.

Defendant, Russell T. Rhone, was convicted of burglary in the second degree by a jury in the Circuit Court of the City of St. Louis. Defendant was sentenced by the trial judge under the Habitual Criminal Act to a term of 10 years imprisonment. Appeal was perfected by defendant to the Court of Appeals, St. Louis District, where the judgment of conviction was affirmed. Upon application of defendant, the cause was transferred here by order of this Court to be determined “the same as on original appeal.” Mo.Const. Art. V, § 10.

This case arose as the result of a burglary observed in progress by Patrolman Thomas Schmidt while on foot patrol on Union Boulevard in the City of St. Louis on the evening of May 13,1974. Approximately 11:30 p.m. that evening, Patrolman Schmidt saw two men in a supermarket which was closed for business but which was well lighted. Officer Schmidt was unable to clearly see the facial features of either man; however, he was able to determine the type of clothing both men were wearing. Patrolman Schmidt testified that one of the men he saw in the market was wearing a dark blue shirt and plaid trousers. This description matched the clothing worn by the defendant when he was apprehended by motorcycle Patrolman Robert Porter who responded to a report of a burglary and who observed the defendant descending from the roof of the burglarized supermarket.

At the time the defendant was taken into custody by Officer Porter, Officer Schmidt was on the roof of the grocery store where he saw a hole that had been cut in the roof in order to gain entry into the building. Also, while on the roof, Patrolman Schmidt discovered and apprehended another man who was believed to be one of the men observed moments earlier inside the market. Patrolman Schmidt next saw the defendant as Patrolman Porter was escorting him from the side of the supermarket building to the alley at the rear of the building. Defendant was searched and found to be in possession of a .38 caliber handgun, which was identified by the owner of the store as belonging to him and kept in the store prior to the burglary.

Ms. Edith Struckhoff was called by the State to testify as the custodian of the records of the St. Louis Police Department Laboratory. Defendant’s counsel objected to her reading from a report prepared by police department criminologist Lloyd Hill for the reason, among others, “that no evidence has been put on that the person who did this test is a qualified expert and she could not testify to that * * *.” The trial court overruled the objection on the basis of State v. Taylor, 486 S.W.2d 239 (Mo.1972). The following questions were then asked and answers given in an attempt to qualify Lloyd Hill as an expert:

Q. Do you know a Lloyd Hill?
A. Yes, I do.
Q. What position did he hold at the Police Department Laboratory? A. He was a criminologist.
Q. What would the nature of his work as a criminologist entail? A. To examine and compare any clothing and debris that was brought in.
Q. All right. Would this be done in any specific method or procedures? A. Oh, yes.
Q. Do you know approximately how long he was employed by the Police Department Laboratory as a criminologist?
A. I would say approximately a year.
Q. Are there other criminologists employed there in addition to Lloyd Hill?
A. Yes, sir.
Q. Do you know approximately the number of them, how many? A. Approximately 5 or 6. Q. In order for them to be employed as a criminologist do they have to have certain qualifications as far as you know?
A. Yes.
Q. Do you know basically what those qualifications are? A. Well, they must have degrees in their field.
Q. Would you know the particular degree that Mr. Hill had at the time he worked for the Police Department Laboratory?
A. No, I don’t know what degree he had.
Q. And is he presently employed by the St. Louis Police Department? A. No, he isn’t.

After the qualifying evidence was elicited, Ms. Struckhoff proceeded to recite from the laboratory report concerning microscopic and spectrographic comparisons performed on the clothes the defendant wore on the night in question which led the preparer of the laboratory report, Mr. Hill, to conclude that the glass fibers and tar material found on the defendant’s clothing came from the scene of the burglary. Ms. Struckhoff further stated that she had no personal knowledge of anything reflected in the report and she did not know how the tests were conducted. The laboratory report was offered and received into evidence.

The only assertion on appeal is that the “trial court erred in permitting Edith Struckhoff to testify as to the findings and opinions contained in the police laboratory report prepared by Lloyd Hill. Hill was not shown to be an expert in the subject matter of the report, and therefore his opinion and the report were inadmissible.”

In Allen v. St. Louis Public Service Company, 365 Mo. 677, 285 S.W.2d 663, at 667 and 668 (1956), this Court took cognizance of The Uniform Business Records as Evidence Law, §§ 490.660-490.690, RSMo 1969, and saw “no reason why a proper expert medical opinion contained in a hospital record should not be accorded dignity equal to that of a similar opinion from the witness stand ⅜ ⅜ *.” The Court then stated that it would presume the qualifications of a resident physician of the hospital.

We have found little law or comment on the question whether entries representing opinion evidence and made under the Uniform Act are admissible in the absence of a showing that the person making the entries is qualified as an expert. We have concluded that we should adopt the view “that entries in the form of opinions are not admissible if the declarant was not an expert making a statement concerning a matter within his expertise and as to which he would be competent to express an opinion if testifying in person.” McCormick on Evidence, 2d Ed., § 307, p. 721; Standard Oil Co. v. Moore, 251 F.2d 188, 214 (9th Cir. 1957).

Vie turn then to a consideration of this case. We cannot presume that Lloyd Hill would have been “competent to express an opinion if testifying in person.” Therefore, the determinative question is whether, under the evidence adduced, he was properly qualified.

It must be shown that a witness has “sufficient experience and acquaintance with the phenomena involved to testify as an expert.” Hyman v. Great Atlanta & Pacific Tea Co., 359 Mo. 1097, 1101, 225 S.W.2d 734, 736 (1949). However, a “witness may be competent to testify as an expert though his knowledge touching the question at issue may have been gained by practical experience rather than by scientific study or research.” Herman v. American Car & Foundry Co., 245 S.W. 387, 389 (Mo.App.1922). “The authorities generally agree that it would be impracticable to set any absolute standard as to the qualifications of an expert witness; and that of necessity the question must rest largely in the sound discretion of the trial court.” State v. Rose, 249 S.W.2d 324, 332 (Mo.banc 1952).

According to the evidence adduced, Lloyd Hill had been employed approximately a year by the Police Department Laboratory as a criminologist. The nature of his work was to examine and compare any clothing and debris that was brought in. He must have had a degree in his particular field. In view of this evidence, we cannot say that the trial court abused its discretion in ruling that Lloyd Hill qualified as an expert. Cf. State v. Taylor, 486 S.W.2d 239 (Mo.1972).

The judgment is affirmed.

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

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

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

BARDGETT, Judge,

dissenting.

I respectfully dissent.

The report of one Lloyd Hill which was admitted in evidence constituted evidence that the defendant was present at the scene of the burglary. It was opinion testimony in that it was the opinion of Hill that the glass fibers and tar material he found on the clothes of the defendant came from the supermarket which was burglarized. This report was admitted in evidence over the objection of defendant that it constituted hearsay and that the maker of the report, Lloyd Hill, was not shown to be an expert. The report was admitted under the Uniform Business Records as Evidence law, sees. 490.660-490.690, RSMo 1969.

The purpose of the Business Records as Evidence law is to allow for the introduction into evidence of documents which would be inadmissible as hearsay except for that law. It obviates the hearsay objection and eliminates the right of the other party to cross-examine the person whose testimony is admitted via the record. There are a number of objections which a party could make to the content of records that are offered in evidence under the act. One of the objections is that the preparer of the record was not expertly qualified, but that objection assumes that the act otherwise applies to the record sought to be admitted in the particular type of proceeding which is taking place. In the instant case the proceeding is a criminal prosecution (not civil) and the purpose of the proffered evidence is to show that the defendant was present at the scene of the robbery.

In order that the issue presented by the contention that the admission of the crime laboratory record can be kept clearly in focus, the following facts which appear in the record must be stated. The defendant testified in this case and claimed that he came upon the scene of the burglary, which was a Fairlane Food store, after the police had arrived. He stated that out of curiosity he walked down a gangway on one side of the food store, saw a Derringer pistol and a roll of coins on the ground and picked them up. At that time he was arrested by one of the officers. Earlier in the case, officer Emil Philipak of the St. Louis police department, evidence technician unit, laboratory division, testified. He stated that he came to the scene and as part of his duties collected certain physical material. He collected tar, tar paper, wood, and insulation from around the hole in the roof of the store, along with other items. He put them in a package and delivered them to the police laboratory. Following the testimony of officer Philipak, Edith Struckhoff, the keeper of the records of the police laboratory, testified. The defendant objected on various grounds, one of which was the testimony would be hearsay; second that he would be deprived of his constitutional right to cross-examine a witness against him; and third that the person who did the test was not qualified as an expert. It seems apparent from the chronology of events in the transcript that defense counsel knew that the prosecution was undertaking to have a certain report admitted in evidence. The prosecutor, in response to defense counsel’s objection, and in answer to a court’s question, said that he intended, by this witness, to establish that it (the laboratory report) was a business record kept in the ordinary course of business and, as a consequence, satisfied the hearsay objection. He referred the trial court to State v. Taylor, 486 S.W.2d 289 (Mo.1972). The prosecutor also told the court that he would be able to develop from the witness Struckhoff that “she has knowledge of Mr. Hill and what he was and what he did at the lab.” The court then answered that under the authority of State v. Taylor, the court was of the opinion that the record was admissible under the Uniform Business Records as Evidence Act (secs. 490.660-490.-690, RSMo 1969). The court understood the prosecutor to be saying that the witness had personal knowledge of Mr. Hill, that she would testify as to how long she had known him and the nature of his duties. The examination then continued as is set forth in the principal opinion. The witness knew nothing about how the tests were made, the mode of preparation of the record (report), nothing specific about the qualifications of the author (Hill), and there was no evidence as to why Hill wasn’t present in court other than he no longer worked for the police department. She then read from the report those portions that pertained to the clothing of the defendant Rhone and certain items that officer Philipak obtained from the scene. The substance of this report of Mr. Hill, as pointed out in the principal opinion, was that the material taken from the defendant’s clothes matched the material found by officer Philipak in or on the burglarized store. The purpose of the testimony was to persuade the jury that the defendant was inside the store and that he did commit the burglary.

Taylor involved a prosecution for burglary and the issue on appeal was whether or not the trial court erred in admitting into evidence a St. Louis police department laboratory report. That report was made by one Cordell Brown who did not appear and testify at trial. The witness at trial was a Mr. Joseph Stevens, a chemist for the St. Louis police department, who testified that the exhibit (report) had been prepared by Mr. Brown in the ordinary course of police department business and that he, Stevens, was the custodian of the document. Brown was employed in Denver, Colorado, at the time of trial. Stevens was permitted to testify from the Brown report that certain wood and paint fragments taken from the clothes of the defendant matched certain paint and wood found at the scene. The court’s opinion points out that the purpose of the Uniform Business Records as Evidence law is to enlarge the operation of the common-law rule providing for the admission of business records as an exception to the hearsay rule. After disposing of certain objections, the court then dealt with the contention that Cordell Brown, the author of the record, was not available for cross-examination by saying that that contention is answered by Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 55 A.L.R.2d 1022 (1956), which Taylor quoted from, saying at 486 S.W.2d 242-243: “‘Objections to such [business] records as hearsay and as depriving a party of the right of cross-examination are, therefore, not effective if the records have been properly qualified under the Uniform Business Records Act. * * * Since the hearsay objection is obviated, we see no reason why a proper expert medical opinion contained in a hospital record should not be accorded dignity equal to that of a similar opinion from the witness stand; to preserve the right of cross-examination intact as to such matters would be to repeal the statute.’ We find no merit to appellant’s first point.”

In my opinion, it was incorrect to use the holding in Allen, a civil case, as the sole authority for overruling the confrontation point made in Taylor, a criminal case. In so doing, the opinion assumes and implies that there are no unique constitutional considerations regarding confrontation which apply to criminal cases but not to civil cases. In Taylor the confrontation point was overruled by ignoring art. I, sec. 18(a), Mo. Const., and the Sixth Amend, of the U.S. Const. The issue was not resolved but simply avoided. The right to cross-examine in civil cases is undoubtedly part of due process of law in a general sense but is not specifically protected by a special provision in either the United States or the Missouri constitutions as it is in criminal cases.

Art. I, sec. 18(a), Mo.Const., provides, inter alia, as follows: “That in criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; . . .to meet the witnesses against him face to face; . . . .” This provision in our constitution is the one which constitutionally protects the right of a defendant to cross-examine the witnesses against him in court. I fail to see how a legislative act (Uniform Business Records as Evidence) can be construed so as to justify the abolition of the right of a defendant to confront important witnesses against him and to thereby nullify art. I, sec. 18(a) of our constitution and Amend. 6 of the U.S.Const.

The instant case is a criminal prosecution and, as such, falls squarely within the ambit of art. I, sec. 18(a), Mo.Const., and Amend. 6 of the U.S.Const. The report that was read into evidence is nothing more nor less than the statement of the opinion of Mr. Lloyd Hill. When received in evidence it constitutes testimony of Mr. Hill that, in his opinion, the material found on the clothes worn by the defendant came from the interior of the burglarized store. In this case the defendant admitted being at the scene when the police were there but denied having been in the store. There was other substantial evidence of defendant’s guilt (one officer testified he caught the defendant coming down from the roof of the building), but the scientific evidence, is, in my opinion, very powerful in this day and age and was of substantial importance to the prosecution in this case. The credibility of the report depends upon whether the jury believes or doesn’t believe Mr. Hill’s version which was conveyed to the jury via his ex parte statement — the report. But Mr. Hill is not subject to cross-examination; yet, he did “appear” as a witness against the accused via his report on a very important matter — the presence of the defendant inside the burglarized store. In my opinion, the admission of this report constituted a clear violation of art. I, sec. 18(a), Mo. Const., in that this procedure deprived the defendant of his right of confrontation and cross-examination constitutionally guaranteed in Missouri. There is no question but what Mr. Hill’s report, when put in evidence in his absence by way of some other witness, is hearsay. It is hearsay because the person (Hill) who vouches for the accuracy of the information (report) is not present and, therefore, his credibility cannot be tested by cross-examination. That is the essence of the constitutionally protected right of confrontation.

This is not the first instance where the court has been confronted with efforts to get prosecution evidence admitted without subjecting the witness whose information is being offered to cross-examination. In State v. Brookins, 478 S.W.2d 372 (Mo.1972), a conviction was reversed and remanded for error in admitting into evidence for the prosecution a deposition of a witness who placed defendant at the crime scene which deposition was taken by the defendant. The point made by the defendant and sustained by this court was that he was denied his constitutional right of confrontation. The court quoted extensively from Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), in setting forth the importance of the right of cross-examination and confrontation. The court also noted that there had been no attempt to return the witness to Missouri to testify.

In Kansas City v. McCoy, 525 S.W.2d 336 (Mo.banc 1975), a majority of this court upheld the use of closed circuit television by the prosecution in the presentation of evidence that the substance found on defendant was marijuana as against a claim that he was deprived of his confrontation rights. This was a municipal ordinance violation and this court restricted the application of the opinion to matters quasi civil in nature.

I do not cite Brookins and McCoy as business-records-as-evidence cases but because those cases show the recent concern of this court over confrontation and cross-examination rights.

In the instant case, the report of Mr. Hill was not crucial to making a submissible case, but it certainly did constitute substantial and powerful evidence of presence in the building. Yet there is virtually nothing in the record to show any qualification of Hill nor any explanation of why he was not present in court.

The statement from Allen quoted in Taylor that “ . . .to preserve the right of cross-examination intact as to such matters would be to repeal the statute”, which is used as the basis of overruling the defendant’s point of denial of confrontation, is, to say the least, a non sequitur. This court has not hesitated to strike down a statute that contravened the constitution of this state, nor should this court hesitate to restrict the application of a statute when our constitution so requires.

Art. I, sec. 18(a) guarantees a defendant in a criminal prosecution the right to be confronted by the witnesses against him so as to be able to cross-examine them. By restricting the operation of secs. 490.660-490.690 to instances where art. I, sec. 18(a) does not apply, is not repealing secs. 490.-660^490.690 at all; it is simply limiting the application of those sections to those witnesses upon which our constitution allows the statute to apply.

Although the language of the Business Records as Evidence law is silent as to whether the law applies to criminal cases as well as civil cases, the courts of Missouri, other states, and the United States, have held that the law does apply in criminal cases. Phillips v. Neil, 452 F.2d 337 (6th Cir. 1971); United States v. Oates, 560 F.2d 45 (2d Cir. 1977), 21 CLR 2269; and cases listed in Lauer, “Business Records as Evidence in Missouri”, Wash. U.L.Q.1964, pp. 24, 49. However, the courts must recognize that the confrontation clauses of the 6th Amend., U.S.Const., and the Missouri Constitution, restrict the application of the Business Records as Evidence law in criminal cases because the evidence admitted under it when the declarant or author of the record is not present is obviously hearsay. But the 6th Amend, confrontation clause does not protect against all hearsay.

In Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970), the court said: “It seems apparent that the Sixth Amendment’s Confrontation Clause and the evidentiary hearsay rule stem from the same roots. But this Court has never equated the two, and we decline to do so now.”

And, in California v. Green, 399 U.S. 149, 155-156, 90 S.Ct. 1930, 1933, 26 L.Ed.2d 489 (1970), the court stated:

“ . . . While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. See Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400 [85 S.Ct. 1065, 13 L.Ed.2d 923] (1965). The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rale does not lead to the automatic conclusion that confrontation rights have been denied.”

And at 162, 90 S.Ct. at 1937;

“We have no occasion in the present case to map out a theory of the Confrontation Clause that would determine the validity of all such hearsay ‘exceptions’ permitting the introduction of an absent declarant’s statements. For where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem.”

And also at 161-162, 90 S.Ct. at 1936;

“Finally, we note that none of our decisions interpreting the Confrontation Clause requires excluding the out-of-court statements of a witness who is available and testifying at trial. The concern of most of our cases has been focused on precisely the opposite situation — situations where the statements have been admitted in the absence of the declarant and without any chance to cross-examine him at trial. These situations have arisen through application of a number of traditional ‘exceptions’ to the hearsay rule, which permit the introduction of evidence despite the absence of the declarant usually on the theory that the evidence possesses other indicia of ‘reliability’ and is incapable of being admitted, despite good-faith efforts of the State, in any way that will secure confrontation with the declarant. Such exceptions, dispensing altogether with the literal right to ‘confrontation’ and cross-examination, have been subjected on several occasions to careful scrutiny by this Court.”

In Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895), the court, in speaking of the confrontation right said:

“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”

In Commonwealth of Mass. v. Slavski, 245 Mass. 405, 140 N.E. 465, 29 A.L.R. 281 (1923), the court approved the admission into evidence of certificates of an analyst of the State Department of Health as to the alcoholic content of the liquid. These certificates were admitted pursuant to a specific statute over the defendant’s objection that he was deprived of his right to confront witnesses under the Massachusetts and United States constitutions. The court’s opinion narrates the history of the confrontation clause and states that such clause did not and does not bar all hearsay. Examples of exceptions existing at the time the constitutional provisions were adopted are dying declarations, reproduction of testimony previously given, and certain public records. The certificates in Slavski were held admissible as public records which were required to be made pursuant to a particular statute. The court, after narrating an extensive list of records admissible in evidence and those held not to be admissible, stated at 140 N.E. at 469:

“The discussion in many of these decisions relates to the general principles of the law of evidence and the interpretation of statutes. The principle which seems fairly deducible from them is that a record of a primary fact made by a public officer in the performance of official duty is, or may be made by legislation, competent prima facie evidence as to the existence of that fact, but that records of investigations and inquiries conducted, either voluntarily or pursuant to requirement of law, by public officers concerning causes and effects and involving the exercise of judgment and discretion, expressions of opinion, and making conclusions, are not admissible as evidence as public records. The principle may not be universally applicable and there may be exceptions, but it appears to be available in general as a practical working rule.
“The determination of the percentage of alcohol in liquor at a specified temperature is the ascertainment of a fact by well-recognized scientific processes. Chemical action and measurement in such an analysis do not depend in general upon the quickness of apprehension, retentiveness of memory, temperament, surmises, or conjectures, of the individual. The admission in evidence of the record of such a fact made by a public officer pursuant to statutory obligation would be as likely to be accurate as many of the public records which have been held to be admissible. There would seem to be as little likelihood of variation of result in such an analysis between different chemists as in the observation of the weather, enumeration of proprietors, or the notation of the weights on scales, by other classes of public officers. The general court [legislature] may have felt that it was wise and just with reference to owners of liquor and prospective defendants, as well as to the general public, to provide for an impartial analysis by a public officer, in order that the fact of alcoholic content in liquor seized might be established according to a scientific standard in which confidence might be reposed.”

The report in the instant case was not a public record required by statute nor is there any evidence of any scientific standards pursuant to which the material was tested, compared or analyzed. It is simply a report from a man named Hill about whom the trial court knew nothing except that he worked at the police laboratory for about one year and had a degree of some sort in his field. The nature of the report is just the opinion of Mr. Hill purportedly resulting from a comparison of some kind between materials obtained from different sources. And, again, there is no evidence as to why Hill was not present in court.

Other types of similar evidence are comparison of fingerprints and comparison of handwriting. I have found no cases allowing the admission into evidence of records of handwriting experts or records of fingerprint experts, with one exception. In United States v. Lemmons, 527 F.2d 662 (6th Cir. 1976), the following occurred as stated at 665:

“In this ease Sgt. Mowery testified that standard laboratory procedure was followed by Sgt. Nichols who originally received the foil packets. Nichols obtained lifts from some of the packets, noted the origin of each of the lifts, determined that the prints were attributable to Lem-mons, and then, also following standard laboratory procedure, requested Sgt. Mowery to verify his opinion. Mowery testified at trial that it was his opinion that the latent prints found on the foil packets matched Lemmons’ fingerprints. We hold that, under the circumstances, the business records exception to the hearsay rule, 28 U.S.C. sec. 1732, was properly relied upon by the district court for the purpose of admitting Mowery’s testimony concerning the fingerprint evidence.
“With respect to appellant’s confrontation clause challenge to the admission of this testimony, we hold that because the original examiner was dead and because the trier of fact had a satisfactory basis in Mowery’s testimony for evaluating the fingerprint evidence, there was no violation of appellant’s rights guaranteed by the Sixth Aineiiument. See Phillips v. Neil, 452 F.2d 337, 346-47 (6th Cir. 1971), cert. denied, 409 U.S. 884, 93 S.Ct. 96, 34 L.Ed.2d 141 (1972). We find no merit to the chain of custody issue since the laboratory examination that established that Lemmons’ fingerprints were on the foil packets had been concluded before the tinfoil and lifts were turned over to another officer who did not appear at the trial.”

It is seen from Lemmons that even there the opinion that the fingerprints were from the same person came from the testifying witness Mowery who was subject to cross-examination and it was Mowery’s evidence that the court held constituted a satisfactory basis for evaluating the fingerprint evidence.

In the instant case there is absolutely no evidence, in my opinion, which would constitute any satisfactory basis for evaluating the evidence contained in the report. Nor is there any basis shown in the record upon which the trial court could have concluded that such a comparison test and the resulting opinion was so routine as to be virtually immune from differing opinions.

I have a great deal of doubt as to whether this report even constitutes a record of an “act, condition or event” or that it is a “business record” as those terms are used in sec. 490.680, KSMo 1969. It was certainly not relied upon in the regular course of business. It is, in my opinion, simply a memorandum made by a member of the prosecuting team to be utilized solely for the purpose of the criminal case against this defendant. In Kitchen v. Wilson, 335 S.W.2d 38, 44 (Mo.1960), the court said: “ ‘Of course, if it should appear that such records have been made and kept solely for a self-serving purpose of the party offering them in evidence, it would be the duty of a trial court to refuse to admit them.’ [citation omitted].”

For all of the above reasons, but particularly because I believe that comparison-type-opinion evidence which is offered for the purpose of placing the defendant at the scene of the crime is tantamount to identification evidence, is given great weight by a jury, is subject to different conclusions and, therefore, is subject to the confrontation clauses of both the United States and Missouri constitutions, I dissent.