author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri ex rel. John ASHCROFT, Attorney General of Missouri and The Missouri Clean Water Commission, Appellant, v. UNION ELECTRIC COMPANY, Respondent.
    No. KCD 28768.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1977.
    Application to Transfer Denied Jan. 9, 1978.

      John C. Danforth, Atty. Gen., Timothy J. Verhagen, Asst. Atty. Gen., Jefferson City, for appellant.
    William H. Ferrell, St. Louis, Robert J. Quigley, Eldon, William E. Jaudes, St. Louis, of counsel, for respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

As will readily become apparent, this litigation has undulated more than a ripple on the surface of the Missouri Clean Water Law, Sections 204.006 to 204.141, RSMo Supp. 1973.

The State of Missouri on the relation of the Attorney General and the Missouri Clean Water Commission (hereinafter referred to as the State) filed a two-count petition against Union Electric Company (hereinafter referred to as Union Electric). The State subsequently amended its original petition and supplanted it with its first amended petition. By way of count one of its first amended petition the State sought to enjoin Union Electric “from causing or permitting the dissolved oxygen level in the waters downstream from the Bagnell Dam Power Plant to fall below 5 mg/1 in violation of Missouri Water Quality Standards and Sections 204.051.1(1), 204.051.1(2), and 204.076.1 of the Missouri Clean Water Law” and for an “order assessing a penalty of $10,000 for each day or part thereof that defendant has or continues to cause or permit the dissolved oxygen level in the waters downstream from the Bagnell Dam to fall below 5 mg/1 in violation of the Missouri Water Quality Standards.” By way of count two of its first amended petition the State sought to recover damages from Union Electric in the sum of $494.42 as “authorized by Section 204.096, RSMo Supp. 1973.”

Union Electric’s motion to dismiss the State’s petition for failure “to allege facts sufficient to constitute a cause of action against defendant or to entitle plaintiffs [sic] to any relief” was sustained by the trial court and the State has appealed.

A synoptic view of basic reigning principles for testing whether a petition states a cause of action is appropriate. All facts well pleaded are taken as admitted and liberally construed in favor of the plaintiff. Jaime v. Neurological Hospital Ass’n of Kansas City, 488 S.W.2d 641, 643 (Mo.1973); Teaney v. City of St. Joseph, 520 S.W.2d 705, 707 (Mo.App.1975); and Johnson v. Great Heritage Life Ins. Co., 490 S.W.2d 686, 690 (Mo.App.1973). When appropriate substantive law is superimposed on the pleaded facts so construed, a petition is not vulnerable to a motion to dismiss for failure to state a claim or cause of action if any ground for relief is shown. Niemczyk v. Burleson, 538 S.W.2d 737, 742 (Mo.App.1976); Kersey v. Harbin, 531 S.W.2d 76, 79 (Mo.App.1975); and Schnabel v. Taft Broadcasting Company, Inc., 525 S.W.2d 819, 821 (Mo.App.1975).

Attention now focuses on the State’s first amended petition, portions of which will be paraphrased for sake of brevity where appropriate, and portions of which will be quoted verbatim for sake of clarity where necessary. According to the State, as pleaded in count one, Union Electric operates a hydroelectric power generating facility on the Osage River in Miller County, Missouri, known as the “Union Electric Bagnell Dam Power Plant” (Bagnell Dam). The Osage River constitutes “waters of the state” as that phrase is defined in Section 204.016(15), RSMo Supp. 1973. Union Electric in its operation of Bagnell Dam regulates the rate of flow and depth of water in the downstream area of the Osage River by periods of hydroelectric generation and nongeneration, to-wit, during periods of hydroelectric generation “water from the upstream reservoir [Lake of the Ozarks] is discharged to the downstream area of the Osage” while, on the other hand, during periods of nongeneration “upstream reservoir water is retained behind the wall of the Dam and the flow and depth of the downstream water decreases.” Concomitantly, Union Electric thereby regulates the “amount of biological life-supporting ‘dissolved oxygen’ which is available to the fish and other aquatic life which inhabit” the downstream area. When generating hydroelectric power “a great quantity of upstream water relatively rich in dissolved oxygen is discharged into the downstream area, therein maintaining adequate levels of dissolved oxygen in the downstream area.” During periods of nongeneration, however, “little or no water containing adequate levels of dissolved oxygen is permitted to flow into the downstream area, and instead, water from the bottom of the upstream reservoir which is biologically devoid or deficient in dissolved oxygen is allowed to seep under or around the Dam facility or is discharged through such facility to the downstream area, therein lowering the levels of dissolved oxygen available to such downstream area.” Water which is “biologically” devoid of or deficient in “dissolved oxygen” constitutes a “water contaminant” as defined in Section 204.016(12), RSMo Supp. 1973, and “the discharge (by flow or seepage) of such unoxygenated [devoid of or deficient in “dissolved oxygen”?] water to the Osage River from the Bagnell Dam constitutes a ‘water contaminant source’ or ‘point source’ as defined in Sections 204.016(13) and 204.016(6), RSMo Supp. 1973.” The Missouri Clean Water Commission, pursuant to Section 204.026.7, RSMo Supp. 1973, adopted and promulgated water quality standards which, inter alia, set up “water quality criteria”, one of which, so far as here pertinent, is applicable to the Osage River and provides that “[t]he dissolved oxygen shall not be less than 5 mg/1 at any time due to effluents.” On or about September 8, 1975, Union Electric, “by discharging unoxygenated water” from Bagnell Dam to the downstream area of the Osage River, caused and permitted the dissolved oxygen level in the downstream area to fall substantially below 5 mg/1 in violation of the Missouri Water Quality Standards and in violation of Sections 204.051.-1(2) and 204.076.1, RSMo Supp. 1973. Union Electric, in doing so, “did cause pollution of the waters of the state in that a 1.2 mile portion of the Osage River downstream from the Bagnell Dam was rendered incapable of supporting a variety of fish life with the consequential destruction of such fish and an undetermined quantity of other organisms existent in such area, such pollution being in violation of Sections 204.051.-1(1) and 204.076.1, RSMo Supp. 1973.” The state has good cause to believe that Union Electric, unless enjoined, will continue to discharge “unoxygenated water into the downstream area of the Osage River with a consequential destruction of untold numbers of irreplaceable and invaluable species of fish and other aquatic life which inhabit such downstream area, all in violation of Sections 204.051.1(1), 204.051.1(2) and 204.076.1 of the Missouri Clean Water law.” Finally, the State alleges that it has “no adequate remedy at law” and its action “for injunction and penalties is authorized by Section 204.076.1.”

According to the State, as pleaded in count two, by reason of Union Electric’s conduct as pleaded in count one certain species of fish of the value of $356.63 were killed and expenses in the amount of $141.79 were incurred by employees of the State in investigating said loss, recovery of which is authorized by Section 204.096, RSMo Supp. 1973.

It is axiomatic that appellate disposition of this case pivots on the meaning of Sections 204.051.1(1), 204.051.1(2), and 204.076.-I, supra. Although the State views this litigation as a noble environmental crusade, Union Electric is highly suspicious, and, however highly motivated the State may be, views the litigation as an effort to effectively destroy its Bagnell Dam hydroelectric power generating facility. Hence, the antipodal positions taken by the parties with respect to the meaning of the pivotal statutory provisions are not always marked by an excogitative approach as they occasionally reflect a flurry of pent-up emotions.

On occasions, no judicial task is more arduous, no judicial responsibility heavier than the construction of legislative enactments. The problem is compounded in this state because there is no counterpart to the Congressional Record to turn to for aid in ascertaining legislative intent. Nevertheless, courts are impressed with a judicial obligation to construe and determine the meaning of ambiguous legislative acts in justiciable controversies if it is possible to do so. State ex rel. Union Electric Light & Power Co. v. Baker, 316 Mo. 853, 293 S.W. 399, 401 (banc 1927). Rules or canons of construction, whose numbers are legion, are aids for ascertaining the meaning of legislative acts and nothing more; they do not rise to the solemnity and authoritative control attributable to principles of law. Although all rules or canons of statutory construction are cognate in their purpose or function, they are widely diverse in nature and many times conflicting. Nevertheless, one cardinal rule or canon, free of diversity or conflict, stands out with stark clarity— the intent of the legislature controls. As aptly stated in Edwards v. St. Louis County, 429 S.W.2d 718, 722 (Mo. banc 1968), “[i]n all these diverse and sometimes conflicting rules the ultimate guide is the intent of the legislature; the other rules of construction may be considered merely as aids in reaching that result; and the purpose and object of the legislation should not be lost sight of.” See also: State ex rel. Schwab v. Riley, 417 S.W.2d 1, 4 (Mo. banc 1967); State ex rel. Lee American Freight System, Inc. v. Public Service Commission, 411 S.W.2d 190, 193 (Mo. banc 1966); and Laclede Gas Co. v. City of St. Louis, 363 Mo. 842, 253 S.W.2d 832, 835 (banc 1953). Thus, ascertainment of legislative intent is both the goal and ultimate rule of statutory construction to which all other rules or canons of construction are subordinate. Moreover, subordinate aids were never intended to be utilized as ploys to subvert legislative intent. Their function and purpose is to sub-serve legislative intent. Consistent with this thought, the following rules or canons of construction are aids deemed to be subservient to ascertainment of the legislative intent pervading the Missouri Clean Water Act. Legislative construction of certain words or phrases incorporating certain definitions in a statute or act under judicial scrutiny is binding on the courts and such statutory definitions supersede commonly accepted dictionary or judicial definitions. In re Estate of Hough, 457 S.W.2d 687, 691 (Mo.1970); State ex rel. Exchange Bank of Richmond v. Allison, 155 Mo. 325, 56 S.W. 467, 468 (1900); and Fox v. Standard Oil Co. of New Jersey, 294 U.S. 87, 96, 55 S.Ct. 333, 337, 79 L.Ed. 780. Words free of statutory definition are to be given their usual, plain and ordinary meaning. State ex rel. Zoological Pk. Subd., St. Louis v. Jordan, 521 S.W.2d 369, 372 (Mo.1975); and State ex rel. State Highway Com’n v. Wiggins, 454 S.W.2d 899, 903 (Mo. banc 1970). An equally significant rule or canon of construction is that various sections of a single act should be construed so as to render the act a consistent and homogeneous whole. Spitcaufsky v. Hatten, 353 Mo. 94, 182 S.W.2d 86,110 (banc 1944); and Gladden v. Kansas City, 536 S.W.2d 478, 480 (Mo.App.1976).

The above comprise a legal matrix from which to fathom the legislative intent pervading the Missouri Clean Water Law, supra, and, more particularly, the meaning of the specific sections of the Missouri Clean Water Law, supra, relied upon by the State as a substantive basis for its alleged cause of action against Union Electric.

Tautly summarized, the State contends on appeal that its first amended petition demonstrates that Union Electric, at certain times, in the operation of its Bagnell Dam hydroelectric power generating facility “discharges” a “water contaminant”, i.e. water with a dissolved oxygen level below 5 mg/1, from the upstream reservoir area of the Osage River above Bagnell Dam to the downstream area of the Osage River below Bagnell Dam, thereby polluting the downstream area of the Osage River in violation of Sections 204.051.1(1), 204.051.1(2), and 204.076.1, supra. Summarized with equal tautness, Union Electric contends on appeal, albeit with considerable lack of perspicuity, that its regulation of the movement of water from one area to another in the Osage River, assuming, arguendo, that at times water with a dissolved oxygen level below 5 mg/1 is present, is not proscribed by Sections 204.051.1(1), 204.051.1(2), and 204.-076.1, supra, because conduct on its part which merely affects the movement of water from one area to another in the Osage River is not within the proscriptive purview of the Missouri Clean Water Law, supra.

The Missouri Clean Water Law, supra, is ensconced in a broad, pervasive legislative intent to keep the “waters of the state” free of “pollution” from external causes and sources. All of the proscriptive provisions contained in the Missouri Clean Water Law, Sections 204.051.1(1), 204.051.1(2), and 204.076.1, supra, which the State alleges Union Electric violated, bespeak of the broad, pervasive legislative intent just mentioned.

Section 204.051.1(1), supra, repeated for sake of convenience, reads: “1. It is unlawful for any person (1) to cause pollution of any waters of the state or to place or cause or permit to be placed any water contaminant in a location where it is reasonably certain to cause pollution of any waters of the state;”. This section, conced-edly convoluted, seeks to suppress as unlawful “pollution of any waters of the state” and causing or permitting any “water contaminant” to be placed “in a location where it is reasonably certain to cause pollution of any waters of the state”. “Pollution” and “water contaminant” are key words in Section 204.051.1(1), supra, as evidenced by the fact that they have been statutorily defined. Furthermore, “discharge” is a key word in the definition of “pollution” as evidenced by the fact that it too has been statutorily defined. Section 204.016, RSMo Supp. 1973, which statutorily defines fifteen words and phrases employed in the Missouri Clean Water Law, supra, contains the following preface: “When used in sections 204.006 to 204.141 and in standards, rules and regulations promulgated under authority of sections 204.006 to 204.141, the following words and phrases shall have the meanings ascribed to them in this section unless the context clearly requires otherwise.” “Pollution” is statutorily defined in subparagraph (7) of Section 204.016, supra, and here repeated: “(7) ‘Pollution ’, such contamination or other alterations of the physical, chemical or biological properties of any waters of the state, including change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is reasonably certain to create a nuisance or render such waters harmful, detrimental or injurious to public health, safety or welfare, or to domestic, industrial, agricultural, recreational, or other legitimate beneficial uses, or to wild animals, birds, fish or other aquatic life;”. By statutory definition “pollution” contemplates two methods for producing one or more of several common results: (1) by “contamination or other alterations of the physical, chemical or biological properties of any waters of the state, including change in temperature, taste, color, turbidity, or odor of the waters ... as will or is reasonably certain to create a nuisance or render such waters harmful, detrimental or injurious to public health, safety or welfare, or to domestic, industrial, agricultural, recreational, or other legitimate beneficial uses, or to wild animals, birds, fish or other aquatic life;” and (2) by “discharge of any liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is reasonably certain to create a nuisance or render such waters harmful, detrimental or injurious to public health, safety or welfare, or to domestic, industrial, agricultural, recreational, or other legitimate beneficial uses, or to wild animals, birds, fish or other aquatic life;” (emphasis added). “Pollution” effected by the first method entails the play of some external force causing “contamination” or “other alteration” of the “physical, chemical or biological properties of any waters of the state”. This court notes that the State failed to plead that Union Electric caused the water in the lower levels of the upstream reservoir area of the Osage River to be “biologically” devoid of or deficient in “dissolved oxygen”. Pleadingwise, whether the complained of condition in the upstream reservoir area of the Osage River is a phenomenon of nature or manmade remains unanswered by the State. Instead, the State attempts to rely upon the second method contemplated in the statutory definition of “pollution”, videlicet, “discharge” by Union Electric of a “liquid”, i.e. water “biologically” devoid of or deficient in “dissolved oxygen”, from the upstream reservoir area of the Osage River above Bagnell Dam to the downstream area of the Osage River below Bagnell Dam which rendered the downstream area “incapable of supporting a variety of fish life with the consequential destruction of such fish and an undetermined quantity of other organisms existing in such area”. By doing so, the State asserts in its petition that Union Electric polluted the downstream area of the Osage River and thereby violated Section 204.051.1(1), supra. The fallacy of this assertion is demonstrated by the statutory definition of “discharge” contained in Section 204.016(1), RSMo Supp. 1973: “(1) ‘Discharge ’, the causing or permitting of one or more water contaminants to enter the waters of the state;” (emphasis added). Section 204.016(12), supra, reiterated for purposes of clarity, statutorily defines “water contaminant” as follows: “(12) ‘Water contaminant’, any particulate matter or solid matter or liquid or any gas or vapor or any combination thereof, or any temperature change which is in or enters any waters of the state either directly or indirectly by surface runoff, by sewer, by subsurface seepage or otherwise, which causes or would cause pollution upon entering waters of the state, or which violates or exceeds any of the standards, regulations or limitations set forth in sections 204.006 to 204.141 or any federal water pollution control act, or is included in the definition of pollutant in such federal act;” (emphasis added). “Enter”, a verb, is defined in Webster’s Third New International Dictionary as “to go or come into a material place; to make a physical entrance or penetration”. Beyond peradventure, in view of these various definitions, Union Electric, under the State’s pleading, did not “cause” or “permit” a “water contaminant”, i.e. water “biologically” devoid of and deficient in “dissolved oxygen”, to “enter” the Osage River. Furthermore, it is self-evident from the same definitions, that Union Electric, under the State’s pleading, neither “polluted” the Osage River nor caused or permitted a “water contaminant” to be placed “in a location” where it was “reasonably certain to cause pollution” of the Osage River. The most that can be said is that Union Electric at times caused or permitted an internal flow of water in the Osage River which, according to the State, was “biologically” devoid of or deficient in “dissolved oxygen”. Such, however, does not rise to the level of conduct proscribed by Section 204.051.1(1), supra, as its impetus is the suppression of pollution from external causes and sources.

Sections 204.051.1(2) and 204.076.1, supra, also purportedly violated by Union Electric, reveal the broad pervasive legislative intent undergirding the Missouri Clean Water Law with even greater fluency. Section 204.051.1(2), supra, at the risk of being repetitious, declares it to be unlawful for any person “[t]o discharge any water contaminant into any waters of the state which reduce the quality of such water below the water quality standards established by the commission if not subject to effluent regulations adopted pursuant to sections 204.006 to 204.141.” (Emphasis added.) Section 204.076.1, supra, also reiterated, makes it “unlawful for any person to cause or permit any discharge of water contaminants from any water contaminant or point source located in Missouri in violation of Sections 204.006 to 204.141, or any standard, rule or regulation promulgated by the commission.” (Emphasis added.) By reason of having statutorily defined “discharge”, a key word common to both sections, the legislature obviously saw fit to delete all doubt from its meaning. To be guilty of a “discharge” of any “water contaminants” into any “waters of the state” as proscribed by Section 204.051.1(2), supra, or of causing or permitting any “discharge” of “water contaminants” from any “water contaminant or point source”, as proscribed by Section 204.076.1, supra, the alleged offender must “cause” or “permit” such “water contaminant to enter the waters of the state”. See statutory definition of “discharge", Section 204.016(1), supra. No claim is made by the State by way of its pleading, or otherwise, that Union Electric discharged water “biologically” devoid of or deficient in “dissolved oxygen” into the Osage River from an external source or that it discharged something from an external source into the Osage River which rendered a portion of the waters of the Osage River “biologically” devoid of or deficient in “dissolved oxygen”.

As all appropriate avenues of statutory construction converge upon the existence of a broad, pervasive legislative intent to keep the “waters of the state” free of “pollution” from external causes or sources, Sections 204.051.1(1), 204.051.1(2), and 204.-076.1, supra, are accordingly circumscribed and the trial court had no choice but to dismiss both counts of the State’s petition for failure to state a claim or cause of action. Tersely summarized, superimposition of Sections 204.051.1(1), 204.051.1(2), and 204.076.1, supra, on the facts pleaded by the State, after liberally construing and accepting such facts as true, fails to afford the State any ground for relief.

The difficultly laden task of filtering the murky areas of the Missouri Clean Water Law, supra, is made even more difficult by reason of the classic, conflicting interests of the parties as exemplified by the State’s pursuit of an environmental sanctuary in the downstream area of the Osage River below Bagnell Dam and Union Electric’s supplication to retain unimpeded use of its hydroelectric power generating facility. However, it does not devolve upon this court to weigh the merits of an environmental sanctuary in the downstream area of the Osage River with the unimpeded maximum utilization of a clean and relatively inexpensive source of electric energy by Union Electric. It is the prerogative of the general assembly to decide by way of appropriate amendatory legislation whether a different balance should be struck between environmental purity and the public’s insatiable demand for energy. This court’s duty is limited to determining whether the relief sought by the State in its petition is authorized and supported by substantive, statutory law. Having concluded that it is not, the judgment below must be affirmed.

Judgment affirmed.

All concur.

      . Section 204.016(15), RSMo Supp. 1973:
      “(15) ‘Waters of the state’, all rivers, streams, lakes and other bodies of surface and subsurface water lying within or forming a part of the boundaries of the state which are not entirely confined and located completely upon lands owned, leased or otherwise controlled by a single person or by two or more persons jointly or as tenants in common and includes waters of the United States lying within the state.”

      . Section 204.016(12), RSMo Supp. 1973:
      “(12) ‘Water contaminant’, any particulate matter or solid matter or liquid or any gas or vapor or any combination thereof, or any temperature change which is in or enters any waters of the state either directly or indirectly by surface runoff, by sewer, by subsurface seepage or otherwise, which causes or would cause pollution upon entering waters of the state, or which violates or exceeds any of the standards, regulations or limitations set forth in sections 204.-006 to 204.141 or any federal water pollution control act, or is included in the definition of pollutant in such federal act;”

      . Section 204.016(13), RSMo Supp. 1973:
      “(13) ‘ Water contaminant source ’, the point or points of discharge from a single tract of property on which is located any installation, operation or condition which includes any point source defined in sections 204.006 to 204.141 and nonpoint source under any federal water pollution control act, which causes or permits a water contaminant therefrom to enter waters of the state either directly or indirectly;”

      . Section 204.016(6), RSMo Supp. 1973:
      “(6) ‘Point source' means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged;”

      . Section 204.026.7, RSMo Supp. 1973:
      “The commission shall: ... 7. After holding public hearings, identify waters of the state and prescribe water quality standards for them, giving due recognition to variations, if any, and the characteristics of different waters of the state which may be deemed by the commission to be relevant insofar as possible under any federal water pollution control act. These shall be reevaluated and modified as required by any federal water pollution control act;”

      . Missouri Water Quality Standards, June 13, 1973, second printing, Section V, Water Quality Criteria, Specific Criteria, pp. 51-52.

      . Section 204.051.1(2), RSMo Supp. 1973:
      “1. It is unlawful for any person . (2) To discharge any water contaminants into any waters of the state which reduce the quality of such waters below the water quality standards established by the commission if not subject to effluent regulations adopted pursuant to sections 204.006 to 204.141;”

      . Section 204.076.1, RSMo Supp. 1973:
      “1. It is unlawful for any person to cause or permit any discharge of water contaminants from any water contaminant or point source located in Missouri in violation of sections 204.-006 to 204.141, or any standard, rule or regulation promulgated by the commission. In the event the commission or its executive secretary determines that any provision of sections 204.-006 to 204.141 or standard, rules, limitations or regulations promulgated pursuant thereto, or permits issued by, or any final abatement order, other order, or determination made by the commission or the executive secretary, or any filing requirement under sections 204.006 to 204.141 or any other provision which this state is required to enforce under any federal water pollution control act, is being, was, or is in imminent danger of being violated, the commission or executive secretary may cause to have instituted a civil action in any court of competent jurisdiction for the injunctive relief to prevent any such violation or further violation or for the assessment of a penalty not to exceed ten thousand dollars per day for each day, or part thereof, the violation occurred and continues to occur, or both, as the court deems proper. The commission or the executive secretary may request either the attorney general or a prosecuting attorney to bring any action authorized in this section in the name of the people of the state of Missouri. Suit may be brought in any county where the defendant’s principal place of business is located or where the water contaminant or point source is located or was located at the time the violation occurred.”

      . Section 204.051.1(1), RSMo Supp. 1973:
      “1. It is unlawful for any person (1) To cause pollution of any waters of the state or to place or cause or permit to be placed any water contaminant in a location where it is reasonably certain to cause pollution of any waters of the state;”
      Note: Section 204.016(7), RSMo Supp. 1973, defines “pollution” as follows: “(7) ‘Pollution’, such contamination or other alterations of the physical, chemical or biological properties of any waters of the state, including change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is reasonably certain to create a nuisance or render such waters harmful, detrimental or injurious to public health, safety or welfare, or to domestic, industrial, agricultural, recreational, or other legitimate beneficial uses, or to wild animals, birds, fish or other aquatic life;”

      .Section 204.076.1, supra, n8 p. 219.

      . Section 204.051.1(1), supra, n9 p. 219.

      . Section 204.051.1(2), supra, n7 p. 219.

      . Section 204.076.1, supra, n8 p. 219.

      . Section 204.076.1, supra, n8 p. 219.

      .“In addition to other penalties prescribed in sections 204.006 to 204.141, the state, or any political subdivision or agency thereof, has a cause of action against any person violating the provisions of sections 204.006 to 204.141 for actual damages, including all costs and expenses necessary to establish or collect any sums under sections 204.006 to 204.141, and the costs and expenses of restoring any waters of the state to their condition as they existed before the violation, sustained by it because of the violation. The action shall be brought by the attorney general or a prosecuting attorney in any court where an action for injunctive relief hereunder could be brought.”


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. David O. HAMPTON, Defendant-Appellant.
    No. 38346.
    Missouri Court of Appeals, St. Louis District.
    Oct. 25, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.
    Application to Transfer Denied Jan. 9, 1978.

      Shaw, Howlett & Schwartz, Allan Good-loe, Jr., Clayton, for defendant-appellant.
    Paul R. Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Julian D. Cosention, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals from his conviction of two counts of robbery in the first degree and one count of carrying a concealed weapon. On sentencing under the second offender act, defendant received sentences of 25 years for each robbery and 5 years for the weapons charge, all to run concurrently. We affirm.

Defendant’s first point is that the trial court erred in not dismissing the jury panel after the prosecutor used all ten peremptory challenges to excuse black veniremen. The jury selected to try defendant, a black, was composed of six blacks and six whites. Aside from the obvious lack of prejudice to the defendant, the law is clear that utilization of peremptory challenges to “exclude all blacks from the petit jury in any one given case” is permissible. “The discrimination becomes unconstitutionally objectionable only if it is proved that the prosecutor in a given county has practiced that same kind of exclusion systematically in all cases.” State v. Williams, 535 S.W.2d 128 (Mo.App.1976) [1, 2]. There is no such evidence here.

Defendant also attacks the sufficiency of the evidence to support the convictions. Mr. Dietzel and Ms. Cobum were stopped outside a restaurant in south St. Louis by two black men carrying guns. The victims were ordered up against a wall and one of the robbers took a wallet from Dietzel and the other took a purse and coat from Ms. Coburn. The robbers then fled down an alley. The victims alerted a policeman a short distance away who gave chase on foot and apprehended ■ two men in the alley. Dietzel’s wallet was found on one of the robbers, Conway, and a pistol was found in the coat pocket of defendant. Ms. Coburn’s purse and coat were found in the alley. Two other eyewitnesses to the robbery could not see the robbers’ faces, but identified Conway and defendant as the participants by the flashy clothing they were wearing when apprehended. The victims positively identified defendant in court as one of the robbers. Defendant and Conway were charged jointly in the information as principals in the crime.

We find no merit in defendant’s contention. His position that no evidence established the gun was concealed is refuted by the testimony of the police officers that it was in a pocket and could not be seen. The contention that Ms. Coburn’s purse was taken before she saw the gun is not established by the testimony and it is further apparent her coat was stripped off of her while she was against a wall with a gun pointed at her. The contention that the evidence failed to establish defendant’s participation in the Dietzel robbery because Conway took the wallet, is patently frivolous.

We also find without merit defendant’s point that the Court erred in allowing testimony concerning Conway’s actions, because the two men were not “charged with acting together or with others.” The short answer is that the men were charged with jointly committing the robberies, and the actions of Conway were admissible.

Defendant’s last contention is that certain statements made by the prosecutor during final argument required a mistrial. Objections to the statements were sustained and all relief requested except mistrial was given. We find no abuse of discretion by the trial court. The statements were borderline objectionable and did not warrant the extreme measure of mistrial.

Judgment affirmed.

CLEMENS, P. J., and DOWD, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Loal Junior JOINER, Defendant-Appellant.
    No. 38573.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 25, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.
    Application to Transfer Denied Jan. 9, 1978.
    Welman, Beaton & Sharp, Kennett, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, Charles H. Baker, Pros. Atty., Kennett, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals his conviction and life sentence for the first degree murder of John Holder. We affirm.

No question is raised of the sufficiency of the evidence to support the conviction. There was evidence to support a finding that defendant and others attempted to rob Holder at his liquor store; that Holder resisted and was shot to death by defendant. There was evidence by defendant that he sought only to buy liquor from Holder; that Holder refused because defendant was intoxicated; that Holder drew a pistol; that defendant was carrying a pistol; that a fight ensued and a gun discharged killing Holder. An instruction on self-defense was given to the jury.

Defendant’s first point is-that the trial court erroneously admitted testimony of his confession on the basis that the confession was not voluntary. Since the confession was made while defendant was in custody, the burden was upon the State to show that the confession was voluntary. State v. Nolan, 423 S.W.2d 815 (Mo.1968) [5-9], It is unnecessary for us to set forth in detail the evidence before the trial court at the hearing on voluntariness. Suffice it to say that the State’s evidence, if believed, warranted a finding that defendant was advised of his rights and that no force, threats or promises were employed in obtaining the confession. Defendant’s evidence was conflicting to that of the state. The credibility of the witnesses was for the trial court to determine. State v. Anderson, 384 S.W.2d 591 (Mo. banc 1964) [23], We cannot find manifest error in the determination of the trial court nor find that the evidence conclusively establishes the involuntariness of the confession. State v. Garrett, 510 S.W.2d 853 (Mo.App.1974) [2-4],

Defendant’s second point is that the court erred in admitting into evidence statements made by a co-participant in the crime. Defendant contends these were hearsay and denied him the right of confrontation. The testimony of the police officers who testified to these statements was that the statements were made in the presence of defendant and that defendant affirmatively adopted the statements by either nodding or stating the statements were correct when queried by the officers if “that was the way it happened.” Under those circumstances the statements were admissible. Defendant did not simply remain silent while the statements were being made, but affirmatively adopted them as his own. They became his confessions and were admissible as such. See State v. Roulette, 451 S.W.2d 336 (Mo.1970); State v. Wilson, 286 S.W.2d 756 (Mo.1956).

Defendant’s final point is that the trial court erred in sustaining the State’s objection to testimony concerning defendant’s treatment while confined in the Arkansas State Penitentiary in 1964 and 1965, eleven years prior to this trial. The purpose of this testimony was to show that as a result of defendant’s treatment in that institution he was afraid not to cooperate with law enforcement officers and this affected his state of mind at the time he confessed. The trial court did permit testimony by defendant of prior physical beatings in 1963 in the Dunklin County Jail. This was the same jail in which the confession testified to at trial was made. Whether evidence is too remote to be material is largely a matter of discretion for the trial court. State v. Feger, 340 S.W.2d 716 (Mo.1960) [17-20]. We find no abuse of that discretion here. The circumstances of defendant’s treatment at the Arkansas penal facility was remote in both place and time and its materiality to entirely different circumstances in the Dunklin County Jail was tenuous at best. The earlier Dunklin County Jail experience, while equally remote in time, was not remote in place and had some materiality to defendant’s treatment and state of mind at the time of his confession.

Judgment affirmed.

CLEMENS, P. J., and DOWD, J., concur.


author: SHANGLER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Robert Lee WILKERSON, Appellant.
    No. KCD 29041.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.

    Albert A. Riederer, Gepford, Sears, Matu-la, Alena & Riederer, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The defendant was convicted of the offenses of assault with intent to maim with malice aforethought and also of tampering with a motor vehicle. He was sentenced to total terms of twelve years imprisonment and this direct appeal follows:

The evidence favorable to conviction shows that two persons alighted from a red Volvo automobile and broke into a parked automobile in search for drugs. They were detected by policemen on surveillance and a chase on foot developed down dark streets and alleys. In the course of this flight a shot was fired at an officer in pursuit. The brother of the defendant was captured, but the other principal was seen to enter the red Volvo automobile which was then seized and the occupants arrested. Among them were the defendant and Rosenthal the driver. The keys to the tampered vehicle, the gun and gloves were found in the Volvo.

The defendant was implicated as one of those who broke into the car by the policeman who had chased him. The tenor of the defense was that the identification of the defendant made under conditions of night was mistaken. The brother of defendant testified that his break into the automobile and the subsequent discharge of firearm at the policeman was in concert with one An-ders, and not with his brother or Rosenthal. It was his further testimony that Rosenthal had earlier that evening picked up the defendant and wife for a sojourn at a tavern so that [presumably] their presence in the Volvo at the time of the attempted escape was nothing more than coincidence.

The defense, however, did not call Rosen-thal as a witness and the prosecutor commented on that lapse during his summation. Counsel for defendant had argued that the identification by the state was so contradictory, and that in any event the brother had admitted the crime in concert with Anders, that no inference of guilt was possible as to the defendant. To this the prosecutor responded in argument that the only reasonable inference from the evidence was that it was the defendant who broke into the car, took the keys, fired the shot at the policeman and fled into the Volvo and that had it been otherwise, the defendant would have produced the driver Rosenthal to prove the contrary:

There’s no credible evidence as to where this defendant was when that crime was committed. Why didn’t they bring in Rosenthal? We heard him mentioned.

And then again after the objection by the defendant that Rosenthal was equally available to the State did not avail:

Why didn’t the defendant bring in Rosen-thal? He could have verified where the defendant was. He was driving the car. He could have said the defendant was with him. Why didn’t they bring him in? He could have explained the keys. He could have explained the gun, and the gloves. But the didn’t bring him in.

The sole contention on this appeal that the prosecutor was not allowed those comments is without merit. It is clear that one party may argue the adverse inference from the failure of the other party to produce a witness who would be reasonably expected to give testimony in his favor. State v. Wallach, 389 S.W.2d 7, 13[4-6] (Mo.1965); State v. Collins, 350 Mo. 291, 165 S.W.2d 647, 648[1, 2] (1942); 23A C.J.S. Criminal Law § 1099. That rule, however, does not allow an adverse inference where the witness is equally available to the State and the defendant. The sense of available within this rule of argument means more than merely that the physical presence of the witness may be commanded by process. Rather, a witness becomes more available to one or another of the parties when the opportunity of the party for knowledge or control over the witness, the relationship or the community of interest between them, or from the prior declarations and statements of the witness, a natural expectation follows that the witness would testify in favor of the one party against the other. In such case, the failure of the one party to call the witness leads logically to the inference that the witness was not called because that party knew or feared that the testimony on the stand would have damaged rather than favored the party. State v. Collins, supra, 165 S.W.2d pp. 648-649. The failure of one party to produce such a witness is a legitimate subject for comment by the other party.

The evidence of the defendant suggests an alibi — that is, that he was with Rosenthal at a tavern when the crime was committed. The relationship between them, the information the defendant attributed to Rosenthal, and their community of interest were such that the defendant would naturally have been expected to use him as a witness. Accordingly, the comment by the prosecutor on the failure of the defense to call Rosenthal to establish his place at the time of the crime was altogether legitimate. State v. Cabell, 539 S.W.2d 584, 588[11-13] (Mo.App.1976).

It does not appear whether Rosen-thal was also charged with a crime from this incident. Our law does not except a co-indictee or codefendant from the operation of this rule. It remains within the scope of legitimate argument for a prosecutor to comment on the failure of a defendant to call a codefendant to testify in circumstances where the adverse inference is otherwise allowable. State v. Greer, 321 Mo. 589, 12 S.W.2d 87, 89[2-4] (1928); State v. Quinn, 345 Mo. 855, 136 S.W.2d 985, 987[9] (1940); State v. Woods, 346 Mo. 538, 142 S.W.2d 87, 90[8-10] (1940).

The judgment is affirmed.

All concur.


author: STONE, Presiding Judge. STONE, Presiding Judge.

text:
    STATE of Missouri ex rel. Ronnie SAGESER, a minor, by his Next Friend, Donald Sageser, Relator-Respondent, v. W. D. LEDBETTER, Jess Bair, Virgil Hasselbring, A. L. Gurley, Dean Greathouse, Nelson White, Bill Campbell and Kaare Gjeruldsen, Respondents-Appellants.
    No. 10113.
    Missouri Court of Appeals, Springfield District.
    Oct. 31, 1977.
    Motion for Rehearing or to Transfer Denied Nov. 29, 1977.
    Application to Transfer Denied Jan. 9, 1978.
    Robert P. Baker, Sarcoxie, for relator-respondent.

      Jon Dermott, Ron E. Mitchell, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for respondents-appellants.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   STONE, Presiding Judge.

In this proceeding instituted in the Circuit Court of Jasper County, relator Ronnie Sageser (hereinafter Ronnie) sought a writ of mandamus to compel respondents, Virgil Hasselbring, A. L. Gurley, Dean Great-house, Nelson White, Bill Campbell, and Kaare Gjeruldsen, the members of the board of education of the Sarcoxie R-2 School District (hereinafter collectively referred to as the board), W. D. Ledbetter, the superintendent of schools for that district, and Jess Bair, the principal of Sarcox-ie High School at the time of suit, to execute and deliver to relator Ronnie a diploma evidencing his graduation from that school. Relator’s petition was filed on May 27, 1975; and, on the same date, an alternative writ issued. In due time, respondents filed their return in which they asserted, inter alia, (a) that relator Ronnie had “failed to comply with all requirements for graduation, to-wit, attendance for four complete years,” in that he had “attended only three quarters of his eleventh year and was suspended, failed to return, and was never readmitted during said eleventh year,” (b) that “relator need only to successfully complete one additional quarter to satisfy the graduation requirements,” and (c) that respondents were “willing to permit relator to attempt completion of said graduation requirements upon proper behavior by relator.” Following a plenary hearing upon the issues joined, the court found the issues in favor of relator and made the alternative writ absolute. Respondents nisi appeal.

Ronnie, born on June 20, 1957, was 14 years of age when he entered Sarcoxie High School in the fall of 1971. Although in the course of trial references were made to prior “behavior problems” with Ronnie which were the subject of discussions in superintendent Ledbetter’s office in one of which Ronnie’s father also participated, the single incident that precipitated this litigation occurred in March 1974 during Ronnie’s junior year. At the close of one of Ronnie’s band classes, his music instructor David Raper told Ronnie (so he testified) “to go in on the stage and take the chairs from the stage into the bandroom,” whereupon “I [Ronnie] threw my coat down, went in to get the chairs, then I got took to the office [of Jerry Smith, the then principal of Sar-coxie High School] for throwing my coat down disrespectfully . . . .” In Ron-

nie’s presence, principal Smith questioned instructor Raper at length about the foregoing incident and concluded that by his action Ronnie had shown disrespect for Raper, in fact had defied him. Apparently having in mind also that “there had been other problems [with Ronnie] throughout the year,” principal Smith summarily suspended Ronnie for three days as he (Ronnie) remembered it or for an indefinite or indeterminate period according to Smith’s recollection. The principal explained that this indefinite period normally would run from one to ten days.

Either the next day by relator Ronnie’s account, or “about five days later” according to principal Smith, the latter called Ronnie’s home and requested that he report to the principal’s office. Upon trial, principal Smith recalled that, when Ronnie did report, “his attitude [was] that of indifference toward returning to school and behaving” — in short, that “his attitude hadn’t improved,” so Smith told Ronnie “to go home until his attitude improved.” Ronnie’s recollection was that, in the course of this meeting, principal Smith had exclaimed, “You don’t even know what you are doing here, do you” and, when Ronnie agreed and answered “No,” the principal “just said, ‘[w]hy don’t you just check out your books and go home.’ ” Although the principal declared that Ronnie’s check-out and withdrawal were voluntary and without compulsion by any school official, certain portions of the principal’s testimony cast doubt upon that characterization of Ronnie’s withdrawal. But, regardless of whether the principal’s above-quoted utterances to Ronnie constituted a mere suggestion, an admonition or a command, Ronnie did “go home” after having completed a “checkout form” obtainable only from the principal or upon his authorization. This “checkout form” was dated April 1,1974, which was approximately eight weeks prior to the last day of the 1973-74 school year.

Ronnie reentered Sarcoxie High School in September 1974, was listed as a senior, continued in school through the 1974-75 academic year, and (with his academic credits from the three previous years) earned the twenty units of credit required for graduation. However, he was denied a diploma (so superintendent Ledbetter declared) because he had not completed “eight semesters of attending” as prescribed “in the policy that is made by the Board of Education” (hereinafter the eight-semester requirement).

When Ronnie’s parents learned that he would not graduate with his class, one of the parents attended a meeting of the board of education and requested that the board waive the eight-semester requirement and give Ronnie’s diploma to him, but the board refused to do so. However, acknowledging that Ronnie had satisfied all other requirements for graduation, superintendent Ledbetter declared that, if Ronnie would enroll for “[ejxactly the amount of time that was lacking from the time he dropped out [April 1,1974] until the end of school which, I believe, [was] eight weeks, give or take a day or two,” he would receive his diploma.

Since the Sarcoxie eight-semester requirement hatched this controversy, it becomes both appropriate and necessary to note the evidence concerning its origin, meaning and prior enforcement. We observe initially that the eight-semester requirement was not imposed or ordained by statute, but was a requirement for graduation formulated and prescribed by the Sar-coxie Board of Education (so superintendent Ledbetter declared) pursuant.to a recommendation nestling in a footnote to the last sentence of paragraph 17, “High School Graduation Requirements,” in the Handbook for Classification and Accreditation of Public School Districts in Missouri (1973) published by the Missouri State Board of Education, that sentence and footnote reading as follows:

“The local board of education may require more than 20 units, adopt specific course requirements, and/or specify the number of semesters of attendance ** re- “** Eight semesters of attendance after gráde eight are recommended." (All emphasis herein is ours.)
quired for graduation from their local school district.”

Inasmuch as the proper disposition of this appeal does not involve or depend upon the wisdom vel non of this recommendation, the acceptance of which mandatorily herded all high school students, without regard to ability, aptitude, ambition, intellect, motivation, performance or prior scholastic record, onto the same conveyor belt geared to the pace of the mediocre or average student, we eschew comment concerning its adoption by the Sarcoxie board.

In fact, the Sarcoxie school board minutes of August 13, 1968, revealed that the board then adopted the requirement of “4 years in one or more high schools for high school graduation.” However, on February 12, 1974, the board also adopted the above-quoted eight-semester recommendation in the 1973 handbook of the State Board of Education and included that adopted recommendation in the particularized “Graduation Requirements for Sareoxie High School” which concluded as follows: “Each student shall attend school for four years in grades nine and above. These graduation requirements are to be implemented July 1, 1974.” This sheet neither defined “attend school” nor offered any elucidation as to its intended meaning in the quoted context.

Respondents’ position in this proceeding (as initially stated by superintendent Led-better) was that, by reason of Ronnie’s absence during approximately the last eight weeks of his Junior school year, he did not satisfy the four-year requirement and will not be entitled to receive a diploma until he does. Thus, Ledbetter initially declared that relator Ronnie would be required to attend Sareoxie High School for “exactly” the additional number of school days that he missed in his Junior year from his suspension or “checkout” on April 1, 1974, to the end of that school year. However, Led-better subsequently conceded not only that the eight-semester requirement did not demand or necessitate any attendance but also that relator Ronnie already had earned the twenty units of credit which constituted and satisfied the “measure of academic achievement” required for graduation, from which it followed that it would not be necessary for Ronnie to earn any additional units of credit, pass any courses in which he might be enrolled, or for that matter even attend any classes. Thus, it becomes plain that the additional requirement of enrollment for eight weeks imposed by the school authorities would do no more than work an exercise in futility which would benefit neither the school district nor relator Ronnie and thus would fly in the teeth of the commonsense maxim that the law does not require the doing of a useless thing.

Although the foregoing is dispositive of this appeal, the earnest presentations of counsel move us to note other record evidence pointing to and supporting the same conclusion. At a school board meeting on October 10, 1972, a motion was made, seconded and carried “that a pregnant girl not be allowed to enroll in school. If pregnancy occurs after the beginning of a semester, the student will be allowed to finish the semester.” Supt. Ledbetter conceded that, during the three years prior to trial of this proceeding, four girls, identified by name in the transcript, had been graduated with a diploma although they had not attended eight semesters. One of those four girls who had become pregnant, had missed the last few weeks of the 1973-74 school year, but had graduated with her class in 1975. Relator Ronnie likewise had missed the last few weeks of the 1973-74 school year, but contrawise had been denied graduation with the 1975 class.

Although respondents assert that mandamus is inappropriate, the transcript establishes that relator had satisfied all academic requirements for graduation and that respondents rely solely, albeit mistakenly, on the eight-semester requirement to justify and support their denial of a diploma to relator Ronnie. Within reasonable limits a school board may determine graduation requirements but where, as here, a rule is applied or enforced unreasonably, capriciously, arbitrarily or inequitably to deny a diploma to a qualified candidate, mandamus is an appropriate remedy. State ex rel Roberts v. Wilson, 221 Mo.App. 9, 297 S.W. 419 (1927). See also State ex rel. Clark v. Osborne, 24 Mo.App. 309 (1887), on second appeal after remand 32 Mo.App. 536 (1888). To the same effect, see other authorities cited marginally. Finding and concluding that no other remedy would be as effective, convenient and beneficial as that sought by mandamus, relator appropriately initiated this proceeding. State ex rel. Keystone Laundry and Dry Cleaners, Inc. v. McDonnell, 426 S.W.2d 11, 15(5) (Mo.1968); State ex rel. M. B. v. Brown, 532 S.W.2d 893, 895(2) (Mo.App.1976); State ex rel. Marcum v. Sappington, 261 S.W.2d 385, 390(3) (Mo.App.1953).

The judgment of the circuit court making the alternative writ of mandamus permanent should be and is affirmed.

HOGAN and TITUS, JJ., concur.

On Motion for Rehearing or to Transfer

STONE, Presiding Judge.

The burden of appellants’ motion for rehearing or to transfer is that the trial court expressly declared that the eight-semester requirement was unreasonable, whereas we have affirmed the trial court’s judgment on another basis, i. e., the unreasonable and discriminatory application of that requirement to relator Ronnie under the specific circumstances shown in the transcript.

In appellate review of this court-tried case, our overriding concern is whether the trial court reached the right result and not whether the reason assigned by that court was correct or incorrect. Regardless of the theory on which the judgment nisi was based, it should be affirmed if, on the evidence, such result properly could have been reached. C-- L-- R-- v. L-- B-- R--, 555 S.W.2d 372, 375(1) (Mo.App.1977); Ehrle v. Bank Bldg. & Equipment Corp. of America, 530 S.W.2d 482, 490-491(7) (Mo.App.1975); Godsy v. Godsy, 504 S.W.2d 209, 211(1) (Mo.App.1973).

Wholly aside from the reasonableness vel non of the eight-semester requirement, the transcript on appeal preserves and presents evidence that in our considered opinion clearly and convincingly demonstrated that the application of the eight-semester requirement to relator Ronnie was unreasonable and discriminatory in the specific circumstances shown.

With such evidence patently justifying and adequately supporting the judgment nisi, we deliberately chose to rest our heretofore-recorded conclusion on that unreasonable and discriminatory application of the eight-semester requirement, rather than essaying, on the record before us, a determination of whether or not the eight-semester requirement is reasonable vel non. The only evidence bearing upon the reasonableness vel non of the eight-semester requirement was (1) the footnote recommendation of the Missouri State Board of Education and (2) superintendent Ledbetter’s testimonial approval. On the other hand, Ledbet-ter readily conceded on cross-examination that there was no eight-semester requirement for graduation in the school system of the nearby city of Joplin, Missouri.

In short, it has been and still is our view that the reasonableness vel non of the eight-semester requirement should not be determined on such scant evidence bearing upon that question as is contained in the transcript under review here.

In so limiting the basis of our holding to the unreasonable and discriminatory application of the requirement to relator Ronnie, we thereby affirm our reluctance to reach for questions not essential for resolution of the case before us. State ex rel. State Highway Commission v. Blair, 484 S.W.2d 36, 38 (Mo.App.1972); Ratterree v. General Motors Corporation, 460 S.W.2d 309, 315 (Mo.App.1970); Shelton v. M & A Electric Cooperative, 451 S.W.2d 375, 380 (Mo.App.1970). See McCaffrey v. Estate of Brennan, 533 S.W.2d 264, 266 (Mo.App.1976). “Sufficient unto the day is the evil thereof.” Matthew 6:34.

Appellants’ motion for rehearing or in the alternative to transfer to the Supreme Court of Missouri is overruled.

HOGAN and TITUS, JJ., concur.

      . At the time of the incident under discussion, § 167.171, RSMo 1969, V.A.M.S., provided, inter alia, that “[t]he school -board in any district, by general rule and for the causes provided in section 167.161 [i. e., ‘for conduct which is prejudicial to good order and discipline in the schools or which tends to impair the morale or good conduct of the pupils’] may authorize the summary suspension of pupils by principals of schools for not to exceed ten days . . . In the case at bar, neither the transcript nor the briefs of the parties disclose whether or not such authorization had been extended to principal Smith.

      . E. g., when asked on cross-examination “[d]id you instruct Ronald Sageser to check out of school,” principal Smith responded “I don’t remember whether I did or didn’t”; and, in one entry book, Ronnie’s name was listed with the comment “dropped 4/1/74.”

      . Since the litigants and their counsel have drawn no distinction between the eight-semester requirement and the four-year requirement, neither do we.

      . No member of the board of education testified.

      . [Relator’s atty.] “Q. . . . [I]f this decision in this case goes against my client, you are going to require him to enroll, aren’t you?
      [Supt. Ledbetter] “A. Yes, sir.
      “Q. Do you care whether he shows up at school?
      “A. Yes, I care, we’d like to encourage him to be there. We are not going to say that a certain number of days he’s got to be there.
      “Q. In other words, if he’s not there you are going to give him his diploma anyway, aren’t you?
      “A. Probably, yes, if he’s enrolled eight semesters. ... I could not deny him his diploma if he enrolled eight semesters unless the Board revised the policy.”

      . C. Bewes, Inc. v. Buster, 341 Mo. 578, 585, 108 S.W.2d 66, 70(2) (1937); Acorn Printing Co. v. Brown, 385 S.W.2d 812, 819 (Mo.App.1964); Maddux v. Gardner, 239 Mo.App. 289, 298, 192 S.W.2d 14, 19 (1945); Woolery v. Todd, Mo.App., 139 S.W.2d 1005, 1007(2) (1940); Citizens’ Sec. Bank of Englewood v. Gatewood, Mo.App., 36 S.W.2d 426, 428(2) (1931), cert. quashed 333 Mo. 207, 62 S.W.2d 756 (banc 1933). See Lambert v. Travelers Fire Ins. Co., 274 F.2d 685, 688 (5th Cir. 1960); Eskimo Pie Corp. v. Whitelawn Dairies, Inc., 266 F.Supp. 79, 82(6) (S.D.N.Y.1967); Kilpatrick Bros., Inc. v. Poynter, 205 Kan. 787, 473 P.2d 33, 40 (1970); Keel v. Independent Life and Accident Ins. Co.., 99 So.2d 225, 227 (Fla.1957).

      .Concerning this girl’s graduation, superintendent Ledbetter testified, in pertinent part, as follows:
      [Relator’s atty.] “Q. But she was not in attendance at Sareoxie High School?
      [Supt. Ledbetter] “A. She was not in the building. No sir, that’s right. She was never dropped from enrollment, as far as being dropped; she was just absent for those days. [The Court] “Q. Just a minute. How did she comply with the eight-semester rule if she wasn’t in the Sarcoxie High School building?
      [Supt. Ledbetter] “A. Sir, she didn’t in the terms that we are speaking, the same as the other three that he mentioned didn’t. She didn’t comply in the terms of the attendance in the school building; she did comply as far as being enrolled.”

      . In Roberts, when the school board refused to deliver a grammar school graduation certificate to student-relator because she refused to pay a tuition fee set by the board, the student sought a writ of mandamus compelling issuance of the certificate by the board. Upon appeal from the circuit court’s denial of the writ, the appellate court reversed and remanded with direction to issue a peremptory writ.

      . In Clark, when the board of regents of a normal school expelled the student-relator for violating a regulation forbidding students to attend parties, etc., “except by permission,” mandamus was sought to compel her reinstatement. On appeal from the trial court’s sustention of a demurrer to relator’s application for the writ, the case was reversed and remanded. 24 Mo.App. 309. The subsequent judgment of the circuit court making the alternative writ perpetual was affirmed on the second appeal. 32 Mo.App. 536.

      . Valentine v. Independent School Dist. of Casey, 187 Iowa 555, 174 N.W. 334 (1919), aff’d after remand 191 Iowa 1100, 183 N.W. 434 (1921); Ryan v. Board of Education, 124 Kan. 89, 257 P. 945 (1927); Hamlett v. Reid, 165 Ky. 613, 177 S.W. 440 (1915); People ex rel. Cecil v. Bellevue Hospital Medical School, 60 Hun. 107, 14 N.Y.S. 490, aff’d, 128 N.Y. 621, 28 N.E. 253 (1891); 68 Am.Jur.2d Schools § 217 (1973); 52 Am.Jur.2d Mandamus § 250 (1970).

      . State ex rel. Patterson v. Tucker, 519 S.W.2d 22, 24(1) (Mo.App.1975); State ex rel. Pope v. Lisle, 469 S.W.2d 841, 842(1) (Mo.App.1971); White v. Smith, 440 S.W.2d 497, 512(21) (Mo.App.1969). See Edgar v. Fitzpatrick, 377 S.W.2d 314, 318(12) (Mo. banc 1964); Producers Produce Co. v. Industrial Commission, 365 Mo. 996, 291 S.W.2d 166, 170(1) (banc 1956); Webb v. St. Louis County Nat. Bank, 551 S.W.2d 869, 877(8) (Mo.App.1977); Drydale v. Kiser, 413 S.W.2d 506, 507(2) (Mo.1967).

      . From the official state highway map [In re Village of Lone Jack, 419 S.W.2d 87, 91(6) (Mo. banc 1967); Walsh v. Table Rock Asphalt Construction Co., 522 S.W.2d 116, 118(1) (Mo.App.1975); Galemore v. Haley, 471 S.W.2d 518, 520 (Mo.App.1971)] and the 1970 United States decennial census report [Varble v. Whitecotton, 354 Mo. 570, 575, 190 S.W.2d 244, 246(4); Belle State Bank v. Industrial Com’n. Division of Employment Security, 547 S.W.2d 841, 843 (Mo.App.1977); Moulder v. Webb, 527 S.W.2d 417, 419(4) (Mo.App.1975)], we know judicially that Sarcoxie is a community of 1,175 persons situate in the southeast comer of Jasper County and that Joplin is a city of 39,256 persons situate in the southwest comer of the same county some 22 miles west of Sarcoxie.