author: PER CURIAM.

text:
    STATE ex rel. UTILITY CONSUMERS COUNCIL of Missouri, Relator-Appellant, v. PUBLIC SERVICE COMMISSION of Missouri and Union Electric Company, Defendants-Respondents.
    No. 37802.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 10, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.
    Application to Transfer Denied April 10, 1978.

      Samuel H. Liberman, II, David J. New-burger, George S. Newman, Utility Consumers Council of Missouri, Inc., St. Louis, William M. Barvick, Public Counsel, Dept, of Consumer Affairs, Regulation and Licensing, Jefferson City, Jack L. Koehr and Robert C. McNicholas, City of St. Louis, St. Louis, Robert G. Brady and Robert C. Johnson, Bryan, Cave, McPheeters & McRoberts, St. Louis, Bruce S. Feldacher, St. Louis, Robert M. Lindholm, Dept, of Natural Resources, Jefferson City, for relator-appellant.
    Michael F. Pfaff, Michael K. McCabe, Jefferson City, Joseph E. Birk and Charles A. Bremer, St. Louis, Gerald Charnoff, Shaw, Pittman, Potts & Trowbridge, Washington, D.C., for defendants-respondents.
   PER CURIAM.

Appellant Utility Consumers Council of Missouri, Inc. (hereinafter “UCCM”) filed in the circuit court its petition for review of a Report and Order by the Missouri Public Service Commission (hereinafter “Commission”) which granted Union Electric Company (hereinafter “Company”) a certificate of convenience and necessity pursuant to Sec. 393.170(3), RSMo. 1969. The circuit court upheld the findings and order of the Commission. UCCM appealed to this court. We, too, affirm.

This litigation was initiated on June 7, 1974, when the Company filed its application with the Commission for permission to construct and to operate a nuclear-powered steam electric generating plant in Callaway County, Missouri. Since the plant was to be constructed beyond the regular service territory of the Company, it was necessary for the Company to apply to the Commission for a certificate of convenience and necessity. Sec. 393.170. Appellant UCCM intervened in the proceedings before the Commission, as did several industries, the City of St. Louis and the Coalition for the Environment. The Office of the Public Counsel entered its appearance.

The Company’s plans called for the construction of two nuclear-powered generating units, each with a nominal electrical output capacity of 1,150 megawatts. The basis of each unit was to be a pressurized water reactor (PWR) modeled on the Standardized Nuclear Unit Power Plant System (SNUPPS) developed by a consortium of five utilities. The nuclear steam supply system (NSSS) would include four steam generators along with the nuclear reactor to convert water to steam using reactor heat. The fuel in the reactor core would be in the form of small uranium dioxide pellets. The heat generated in the reactor would be transmitted to the steam generators where the steam produced would drive the turbine-generators to produce electricity. The operation of the first unit was planned for 1981, and the operation of the second unit for 1983.

Public hearings held primarily in Jefferson City, Missouri with one session in Clayton, Missouri lasted nearly one month. The industrial intervenors filed a “Statement of Position”, but they did not participate in cross-examination at the hearings. The Coalition for the Environment filed nothing after their “application to intervene” but were represented at the hearing by the same counsel appearing for appellant UCCM. Counsel for the City of St. Louis, the Public Counsel, the counsel for appellant, and counsel for the Company participated in cross-examination at the hearings.

On March 14, 1975, the Commission entered its “Report and Order”, to become effective April 1, 1975, finding in pertinent part that:

1) “the need for the proposed plant to meet present and future demands for service was established by Company”;
2) “based on all of the evidence in the record, we [the Commission] are compelled to reach the conclusion that the most economical way of supplying the increased electrical needs of Company’s customers in the future is through the construction of the proposed nuclear plant”;
3) “the evidence in this record clearly establishes within reasonable certainty, Company’s ability to obtain the necessary financing”;
4) “the issue of radiological health and safety is within the exclusive jurisdiction of the federal government”;
5) “there remains no specific statutory authority for in camera, proceedings”; and
6) “with regard to the proprietary privilege claimed by Company, this Commission does not have the jurisdiction or authority to determine judicial questions.”

The Commission also found that the construction of the nuclear plant was in the public interest. On March 31, 1975 appellant filed its “Motion to Set Aside Final Order and Re-Hear Case” which was denied.

On May 1, 1975, appellant filed its “Petition for Writ of Certiorari, Writ of Review” pursuant to See. 386.510, RSMo. (1975 Supp.). On September 19, 1975, appellant filed a “Motion to Summarily Set Aside Commission’s Order and Remand the Matter to the Commission for Further Proceedings” for the reason that appellant had discovered that written testimony allegedly submitted to the Commission on the subject of safety was not filed in the record. On January 7, 1976, the Circuit Court affirmed the Commission’s Report and Order. Thereafter, appellant filed its timely notice of appeal.

Initially, this court notes that jurisdiction is properly vested in the St. Louis District. Section 386.510, RSMo. (1975 Supp.) states that “the applicant [for review] may apply to the circuit court of the county where the hearing was held or in which the commission has its principal office for a writ of certiorari or review.” Because a formal public hearing was held by the Commission in St. Louis County (Clayton), Missouri, the applicant’s petition for review was properly brought in the circuit court of St. Louis County. See, State ex rel. Case v. Seehorn, 283 Mo. 508, 223 S.W. 664, 670-71[8] (banc 1920). Thus, this appeal lies within our territorial jurisdiction.

Briefly, the scope of review for both the circuit court and this court is delineated by Sec. 386.510, RSMo. (1975 Supp.). This section provides for judicial review of administrative action to determine the “reasonableness or lawfulness” of the action. An administrative order is lawful if the Commission had statutory authority to issue it. The order is reasonable if it is supported by competent and substantial evidence on the whole record. State ex rel. Ozark Electric Coop. v. Public Service Com’n, 527 S.W.2d 390, 392[1] (Mo.App.1975) and cases cited therein. See also Mo. Const. Art. V § 22. The term “substantial evidence” means competent evidence which, if believed, would have a probative force on the issues. State ex rel Rice v. Public Service Commission, 359 Mo. 109, 220 S.W.2d 61, 64[3] (banc 1949); Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53[4] (Mo.App.1975). Appellant has the responsibility of pointing out the evidence which it considers unreasonable and unlawful. State ex rel. Pugh v. Public Service Commission, 321 Mo. 297, 10 S.W.2d 946, 952[10] (1920).

I

We believe that appellant’s most significant point for reversal is:

“The Commission’s refusal to permit Appellant to cross-examine Company’s witnesses on the basis of their conclusions regarding comparative costs of nuclear and fossil plants and Mr. Cornelius’ testimony regarding the impact of the proposed construction on future revenue needs and rate increases renders that evidence insubstantial and incompetent. Testimony that has not been cross-examined is incompetent and insubstantial since its veracity has never been tested and thus cannot be trusted. Without the support of this testimony the evidence upon which the Commission’s decision is based is insubstantial and incompetent. Thus the PSC’s Order is not based upon substantial and competent evidence upon the whole record and must be set aside.”

Appellant contends that it was denied cross-examination as to the contract price of the turbines, the escalator factors in the turbine contracts, the “base-line” price of Company contracts with Bechtel Power Corp., Westinghouse Corp. and General Electric Corp., the cost of uranium and the cost of fabricating the fuel assemblies that hold the uranium pellets. Appellant alleges for the first time in its brief that this contract information was necessary to determine the extent to which the Company’s principal exhibit, Exhibit 18, was based on firm contracts or on estimates. The Company claimed at the hearings and on appeal that the information sought by appellant was proprietary.

The right to cross-examination in administrative proceedings is governed by Sec. 536.070(2), which provides that:

“Each party shall have the right to call and examine witnesses, to introduce exhibits, to cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not the subject of the direct examination, to impeach any witness regardless of which party first called him to testify, and to rebut the evidence against him.” (Emphasis added).

The hearings of administrative agencies must be conducted consistently with fundamental principles of due process which include the right of cross-examination. Southern Stevedoring Co. v. Voris, 190 F.2d 275, 277[2] (5th Cir. 1951). The purpose of cross-examination is to sift, modify or explain what has been said, to develop new or old facts in a view favorable to the examiner, Hungate v. Hudson, 353 Mo. 944, 185 S.W.2d 646, 649[6] (1945), and to test the correctness of the information from the witness with an eye to discrediting the accuracy or truthfulness of the witness. Lolordo v. Lacy, 337 Mo. 1097, 88 S.W.2d 353, 355[3] (1935). When the evidence is critical to the issues and necessary to sustain a proponent’s burden of proof, cross-examination is essential to testing the reliability of evidence. As the court stated in Powhatan Mining Co. v. Ickes, 118 F.2d 105, 109 (6th Cir. 1941), in a situation where an agency had compiled data from coal purchasers but refused to disclose the names of the producers:

“It is difficult to see how the accuracy, authenticity and relevancy of these tabulations could be tested in any way without the disclosure of the names of the code members [coal producers] who reported the data upon which the tabulations are based.”

In reversing, the court noted that, absent cross-examination to obtain these names and other relevant information, errors could not be checked nor the real meaning of figures developed.

Likewise, in Re Investigation of Minimum Highway Permit Carriers, 72 PUR 3d 237 (Cal.Pub.Util.Com’n 1968), the Commission found that cross-examination to obtain the revenues, tonnages and products of carriers (though not their names) should have been allowed. And, the Commission commented at 243 that “parties to commission proceedings are entitled to sufficient information on the record to test the accuracy of the facts and conclusions set forth in the staff reports.”

We conclude that the appellant’s right to cross-examination was improperly restricted. The Company contends that the proprietary nature of the information sought by appellant’s cross-examination protected that information from disclosure. This contention cannot stand. The Company did not present any law at the hearings nor to this Court which would indicate that there was an evidentiary privilege because of the proprietary nature of the contracts. We do find cases which recognize the proprietary interest and we are not unmindful of the problem. See, Westinghouse Elec. Corp. v. United States Nuclear Regulatory Com’n, 555 F.2d 82 (3rd Cir. 1977). Though the court acknowledges that in some circumstances the proprietary nature of information may shelter it from examination, the Company here cannot hide behind the proprietary nature of the information. The Company proffered testimony and exhibits based on proprietary information. If it seeks to rely on proprietary information to carry its burden of proof and, thereby, benefit from the use of such information, then it may not protect that information from scrutiny by claiming it need not disclose. Furthermore, when the subject matter under consideration is of such importance to the public welfare, we believe that the public interest requires full disclosure of relevant information on cross-examination. See Westinghouse Elec. Corp. v. United States Nuclear Regulatory Com’n, supra at 92.

We must next determine the effect of the improper restriction of cross-examination. Appellant contends that all evidence on the comparative costs of a nuclear-powered plant versus a coal-fired plant was rendered incompetent by the Commission’s improper restriction. However, appellant was given the opportunity and did examine extensively information provided in Exhibit 18. At the close of the hearings, the Commission asked all parties individually, including the appellant, if they had any objection to the admission of the exhibits, specifically referring to the numbers of the exhibits. Appellant replied “no objection” to the admission of all exhibits, including Exhibit 18. All exhibits were admitted.

Failure to object to the admission of Exhibit 18 after appellant had been restricted in its cross-examination constituted a waiver by appellant, and it cannot now object to its admission. Even if an objection or a motion to strike had been made, the entire exhibit would not have been inadmissible. The principle is well-established that, if any part of an exhibit is admissible, an objection going to the whole of it is properly overruled. Breshears v. Union Electric Company, 373 S.W.2d 948, 952[2] (Mo. banc 1964); Allen v. St. Louis Public Service Company, 365 Mo. 677, 285 S.W.2d 663, 667—8[8] (1956). Oral testimony by various witnesses regarding cost comparisons which appellant claims the Commission should not consider falls into a category of evidence wherein the testimony was admissible when taken and only later, due to the restriction of cross-examination, became inadmissible. Appellant made no motion to strike either at the time when its cross-examination was restricted or at any other time. It is well-settled that a motion to strike is the correct means of removing from consideration evidence properly admitted when such evidence later becomes inadmissible. Michaud v. Ruch, 545 S.W.2d 703, 707 (Mo.App.1976); Davis v. Sedalia Yellow Cab Company, 280 S.W.2d 869, 871[4] (Mo.App.1955); Weniger v. Weniger, 32 S.W.2d 775, 776[4] (Mo.App.1930). Failure to make a motion to strike constituted a waiver by appellant, so that oral testimony which could have been excluded was nevertheless properly considered by the Commission.

Appellant further contends that its cross-examination of Mr. W. E. Cornelius, Executive Vice-President of the Company, was restricted. The Company presented evidence regarding the financing of construction through Mr. Cornelius. The cost of construction for the nuclear facility was projected at $1,758,000,000. This cost would be financed by issues of all types of securities and by tapping internal sources of funds. Mr. Cornelius testified that these resources would provide the financial capability to finance construction. Mr. Cornelius was cross-examined regarding the necessity or probability of a rate increase due to the cost of construction. Appellant inquired about the specific amounts and the timing of future rate increases and the projected net operating income of the Company. The Company objected on the ground that public disclosure of the figures was prevented by the Securities Act of 1933,15 U.S.C.A. § 77e(c), since the Company had registered an issuance of securities with the Securities and Exchange Commission. The objection was sustained. As with the proprietary information, the Commission erred in sustaining this objection. Appellant failed to make an offer of proof and even stated that “we aren’t going through objections.” Further, appellant failed to make a motion to strike any evidence relating to financial data and failed to object to the admission of Exhibit 6. In addition, the financial information was later revealed by a different series of questions using averages rather than specific figures as requested, so that appellant actually obtained the information sought by cross-examination though in a different manner. Furthermore, net income was available to appellant in Company Exhibit 6. The method of computing net operating income was explained to appellant, as was the possibility that a rate increase might be necessary if net operating income dropped.

Appellant elected not to cross-examine Mr. Ernest G. Ellingson, Chief of Economic Research for the Commission, on matters pertaining to proprietary information; however, appellant did cross-examine Mr. Ellingson on other matters. Appellant contends that this decision did not constitute a waiver of its right to cross-examination in view of its “continuing objection" regarding the denial of cross-examination on proprietary data. And, appellant argues that any of Mr. Ellingson’s testimony based on the proprietary information is incompetent. Mr. Ellingson signed a nondisclosure agreement and was then able to examine the so-called proprietary contracts. He testified that the contract terms for the purchase of uranium were excellent and could not be duplicated in the current market. Renegotiation of the fuel contracts would add $50-100 million to the cost of the contracts. Mr. Ellingson also examined the cost calculations of the Company, assuming facts based on his own independent, objective experience and more stringent than those used by the Company. He concluded that the cost would be lower for a nuclear plant than for a coal-fired plant. The appellant did not attempt to cross-examine Ellingson on information he obtained as a result of his examination of the contracts. Appellant made no motion to strike any of Mr. Ellingson’s testimony, and it remained available for the Commission’s consideration.

We find there was further competent and substantial evidence on the whole record to support the findings of the Commission, which includes the testimony of witnesses presented to support Company’s contention that nuclear power was less costly than coal power. The principal witness was Mr. H. Clyde Allen, Director of Corporate Planning for the Company. He prepared Company Exhibit 18, and concluded that under all conditions the cost advantage rested with the nuclear facility. Mr. Allen was extensively cross-examined regarding the mathematical computation used to arrive at the cost per kilowatt hour for each facility, the background data on which Exhibit 18 was based, the cost of capital, the effects of inflation on fuel (coal) costs, the cost of construction obtained from the engineering department of the Company, and the capacity factor at which a nuclear plant must operate to be as expensive as a coal plant. Estimates of costs by the Bechtel Power Corp., designer of the proposed nuclear facility, were confirmed by the experience of other SNUPPS members, Rochester Gas and Electric as well as Northern States Power, who had already built nuclear power plants. Studies by another recognized consultant in the field of nuclear power, Arthur D. Little Co., also confirmed the Company’s cost calculations.

His testimony revealed that the use of scrubbers, equipment which removes sulfur dioxide from coal, had not been calculated in the cost per kilowatt hour for coal units. That calculation would reduce capacity of the coal plant by five and one-half percent (5⅛%) and, accordingly, increase the cost.

Mr. Donald F. Schnell, Company Manager for Nuclear Engineering, explained that over its life the nuclear plant would produce savings over a coal-fired plant because the maintenance and operating expenses are higher for a coal-fired plant than for a nuclear plant, and reliability of operation is lower for a coal-fired unit. He also described generally the contracts the Company had entered for the construction and operation of the facility other than the design and consultant arrangement with Bechtel Power Corp. Westinghouse Electric Company contracted to construct the nuclear steam supply system and to supply fuel. The fuel would be enriched by the Atomic Energy Commission pursuant to a thirty-year contract. General Electric Corporation contracted to provide the turbine generators.

Mr. Charles J. Dougherty, President of the Company, added that the total cost of a nuclear plant, including capital costs, taxes, maintenance, operating expenses and depreciation, was lower than the total costs for a fossil fuel plant due to lower annual fuel costs. He testified that the nuclear generating facility was the most attractive source of electricity from an economic and environmental standpoint.

Other in-depth evidence was presented by Staff witness Dr. Walter Meyer, Professor and Chairman of Nuclear Engineering at the University of Missouri. Dr. Meyer provided tabulations which compared costs of electrical power derived from various energy sources. All five of his tabulations, compiled from data pertaining to other nuclear facilities, revealed that nuclear power systems produce electricity at a lower cost than fossil fuel systems. Dr. Meyer concluded that the Company had made an objective evaluation in electing nuclear generating power.

II

Appellant also contends that the circuit court erred in failing to remand the case to the Commission for further testimony in light of new evidence discovered by appellant. Appellant claims that the written testimony of Dr. David Hoeppner, faculty member of the Nuclear Engineering Department at the University of Missouri, could have been filed with the Commission but was not filed. Furthermore, Dr. Ho-eppner was not called to testify at the Commission hearing. But, appellant alleges that the testimony was considered and rejected by the Commission.

The Circuit Court may remand for further testimony only when the Commission failed to accept evidence “properly proffered” during Commission proceedings. Sec. 386.510, RSMo. (1975 Supp.). The record is devoid of any showing that the proposed testimony of Dr. Hoeppner was offered, either properly or improperly, at the Commission hearings. Nor is there any indication in the record that the Commission knew of, read, considered, relied on or rejected the proposed testimony of Dr. Ho-eppner. Our examination of Dr. Ho-eppner’s short statement, filed with the Circuit Court and made a part of its record, shows that his testimony is merely cumulative and would not affect the findings of the Commission.

Appellant had also requested the Circuit Court to hold a hearing on the “newly discovered” evidence of Dr. Hoeppner’s testimony. The statute, Sec. 386.510, RSMo. (1975 Supp.) is clear in stating that “no new or additional evidence may be introduced upon the hearing in the circuit court”. We believe the sentiments expressed in Interstate Commerce Com’n v. Jersey City, 322 U.S. 503 at 514, 64 S.Ct. 1129 at 1134[5] 88 L.Ed. 1420 at 1428 (1944) are apropos:

“One of the grounds of resistance to administrative orders throughout federal experience with the administrative process has been the claims of private litigants to be entitled to rehearings to bring the record up to date and meanwhile to stall the enforcement of the administrative order. * * * If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening.”

The circuit court correctly refused to remand or to hear new evidence.

Ill

Appellant contends that the circuit court erred in failing to remand to the Commission for further testimony regarding the economic impact of nuclear accidents on the overall cost of a nuclear power plant. A thorough reading of nearly 4,600 pages of transcript and 107 exhibits reveals that the Commission admitted into evidence a bulk of information relating to the question of safety. The Findings of Fact and Conclusions of Law issued by the Commission indicate that the Commission did, indeed, evaluate the evidence on safety. The evidence indicated that the economic impact of the risk of a possible nuclear accident was insignificant. And, appellant admitted that any prediction of the cost of a possible nuclear accident was purely speculative, and the testimony showed that no data existed to predict such a cost. The safety of the production and use of nuclear energy is one of the great debates of our time. However, neither the Commission nor this court, in reviewing this case, has the authority to determine that the construction of a nuclear generating facility in Callaway County is safe. The federal government preempts this issue.

The doctrine of federal preemption with respect to the safety issue is aptly expressed in the leading case Northern States Power Co. v. State of Minnesota, 447 F.2d 1143 (8th Cir. 1971), aff’d mem., 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576 (1972), written by Judge Matthes who was formerly of this court. The court there held that the federal government has exclusive authority to regulate the construction and operation of nuclear power plants. The holding is compatible with the relevant federal statutory provision, 42 U.S.C.A. § 2021(k), reserving to the States the regulation of “activities for purposes other than protection against radiation hazards.” The basis for the ruling in Northern States Power Co. was that the control of radioactive effluents discharged from the power plant was closely intertwined with the planning, construction and operation of the nuclear facility. Herein lies the distinction in the present case. The federal government regulates how nuclear power plants will be constructed and maintained; the State of Missouri regulates whether they will be constructed. The federal regulations pertain to plans, specifications, safety mechanisms and the like. The Commission’s considerations pertain to economic feasibility, need for increased power and financing. It s obvious that the considerations of the state of Missouri do not affect the control >f how the nuclear facility will be constructed and physically maintained. The considerations of the Commission do not attempt to protect the citizens of Missouri against radiation hazards. The issue of safety rests in the exclusive domain of the federal government. We find no error in the refusal of the circuit court to remand for further evidence regarding the economic impact of nuclear accidents on the overall cost of the nuclear power plant.

Finding that the order of the Commission granting a certificate of necessity and convenience to the Company was supported by competent and substantial evidence on the whole record, we affirm.

All the Judges concur.

      . UCCM is a non-for-profit corporation organized under the laws of the State of Missouri.

      . All statutory citations refer to the Revised Statutes of Missouri, 1969, unless otherwise > indicated.

      . General Motors Corporation, McDonnell Douglas Corporation, Monsanto Company, PPG Industries, Inc. and Anheuser-Busch, Inc.

      . The Office of the Public Counsel was created by the Omnibus State Reorganization Act, Laws 1974, 1st Ex.Sess., p. 530, S.B. No. 1, which appears in the statutes as Appendix B, preceding Chapter 26, RSMo. (Supp.1975). See also, Sec. 386.070 V.A.M.S. (1977 pocket part). The Office of the Public Counsel is a segment of the Department of Consumer Affairs, Regulation and Licensing. Sec. 1.5(1); Sec. 4.
      The Omnibus State Reorganization Act effectively transferred from the Commission’s general counsel to the public counsel the duty to represent the public interest before the Commission. In State ex rel. Mo. Power & Light Co. v. Riley, 546 S.W.2d 792, 796[4] (Mo.App.1977), the court stated:
      “. . . it was clearly the intent of the legislature in the creation of the office of Public Counsel to divorce his functions from those of the General Counsel for the Commission; to place them in adversary positions where the facts of a situation warranted; to impose upon the Public Counsel the duty to represent the interests of the public and as a concomitant thereof clothe him with the power to adequately represent them; and, thus to achieve a fair balance of rights as between the public interest on the one hand and private interests on the other.”
      The Public Counsel herein actively participated in the hearings in his adversary role. He neither appealed nor joined in this appeal, although the court determined in State ex rel. Mo. Power & Light Co. v. Riley, supra, that the Public Counsel had the right to judicial review.

      . Union Electric Company, Rochester Gas arid Electric, Northern States Power, Kansas Gas and Electric, and Kansas City Power and Light Company.

      . Appellant does not challenge the authority of the Commission to enter its order issuing the certificate of convenience and necessity to the Company.

      . Appellant has alleged that “crucial evidence”, specifically Exhibit 18 and the testimony of W. E. Cornelius regarding rate increases, is incompetent. Appellant contends that evidence by Donald Schnell on fuel costs is incompetent. There are other areas in which appellant claims that the denial of cross-examination rendered “the evidence” incompetent, but it does not specify which evidence. Additionally, appellant contends that the entire testimony of H. Clyde Allen should be “disregarded” as incompetent. In its Reply Brief appellant goes so far as to state that “all of the evidence in the record” is insufficient to support the Commission’s findings. The bulk of appellant’s claims that evidence is incompetent lacks the requisite specificity to carry appellant’s burden of pointing out the evidence which it considers unreasonable and unlawful.

      . Exhibit 18, a document entitled “1982 Annual Cost Comparison”, was a chart comparing the 1982 costs of a nuclear facility of 1,150 megawatts with the 1982 costs of two coal units each producing 575 megawatts. The exhibit falls within the ambit of Willapoint Oysters v. Ewing, 174 F.2d 676, 691 [18, 19] (9th Cir. 1949) wherein the court reaffirmed the evidentiary rule that “where voluminous documents are a necessary part of the evidence in a cause, it is well settled that tabulations of these documents in the forms of charts and schedules may be introduced for the aid of the trier of fact.”

      . It should be noted that, during the hearings, appellant did not present this reasoning and did not approach the lack of cross-examination on contract terms so vigorously. On two occasions, counsel for appellant indicated his uncertainty that he would cross-examine on the contracts or on Exhibit 18. His primary concern was whether the Company was “overly optimistic” on its numbers (data).

      . The Company contends that proprietary means that contract terms are protected from disclosure to non-contracting parties. Disclosure is a breach of contract for Company. A proprietary clause in a contract exists to prevent collusion by vendors in accordance with antitrust laws. The proprietary clause, Paragraph “b” of Article 17 of Company’s fuel contract, reads as follows: “Westinghouse also has a proprietary interest in the proposal — referring to the proposal to sell fuel — and in this contract or other documents resulting therefrom, the aforementioned proposal and contract documents of any contract resulting therefrom shall not be disclosed in whole or in part to third parties without the prior written consent of Westinghouse; provided, however, that nothing in this proprietary data clause shall be construed to deprive the owner from enforcing any rights granted by the terms and conditions of any contract resulting from the proposal.”

      .Chapter 536, the Missouri Administrative Procedure Act, supplements Chapter 386 regulating the Public Service Commission, except where in direct conflict with it. See Patterson v. Thompson, 277 S.W.2d 314, 317[5] (Mo.App. 1955). Thus, the procedures delineated in Chapter 536 for a hearing and for the presentation of evidence during a hearing apply unless a contrary provision exists in Chapter 386.
      Although Sec. 386.410 states that “[a]ll hearings before the commission or a commissioner shall be governed by rules to be adopted and prescribed by the commission” these rules were not introduced into evidence. This court can not take judicial notice of the Commission’s rules. Nabors v. United Realty Company, 298 S.W.2d 474, 480[6] (Mo.App.1957); Kersey v. Harbin, 531 S.W.2d 76, 80[7] (Mo.App.1975). The provisions of Sec. 536.031(5), RSMo. (1976 Supp.), providing for judicial notice of the Code of State Regulations which publishes agency rules, did not take effect until January 1, 1976. The proceedings giving rise to this appeal occurred in 1974, prior to that effective date. For the current rules, see 4 CSR 240-2.130.

      . Though the court need not decide this issue, it notes that the right to inspect the proprietary information was offered to all parties upon the signing of a nondisclosure agreement. This opportunity was rejected by appellant and all others. Furthermore, the Commission suggested that appellant subpoena the contracts for its perusal. Appellant had the right to utilize subpoena power of the agency, Sec. 536.077, but failed to take advantage of it.

      . The Nuclear Regulatory Commission has a rule providing for disclosure of proprietary information. We believe that the Commission should take steps to promulgate a similar rule for the examination of proprietary information and for the presentation of evidence or cross-examination involving proprietary data by means of an in camera proceeding. In camera examination is allowed in other situations. See, e. g„ Sec. 452.385, RSMo. (1975 Supp.) providing for examination of a child in chambers; Re Pacific Northwest Bell Tel. Co. 9 PUR 4th 49, 55 (Oreg.Pub.Serv.Com’n 1975) wherein inspection of documents containing trade secrets proceeded in camera; and State v. Yates, 442 S.W.2d 21, 25[5] (Mo.1969) wherein the court stated that the public interest in effective law enforcement demanded an in camera proceeding to discover the name of an informant and yet to preserve his confidentiality. The Commission’s in camera sessions could be placed on the record and all parties and counsel would be present. Testimony at such sessions would only be transcribed and revealed in the event that the Commission relied on the testimony in its findings.
      Appellant attacks the denial of an in camera proceeding in the instant case. However, it failed to raise the issue in its “Motion to Set Aside Final Order and Re-Hear Case” and, thus, has not preserved the issue for review. Sec. 386.500(2). Even if appellant had properly preserved its point, it would not be necessary to determine the issue because we concede its primary point. Appellant contends error in denial of an in camera proceeding only because it was improperly denied cross-examination on certain subjects. We agree that its cross-examination was improperly restricted, so we need not address the secondary, or alternative point regarding the in camera proceeding.

      . Appellant argues to this court that a material aspect of the case is whether the financing of construction would necessitate a rate increase and, thereby, reduce demand for electricity. Appellant assumes that if rates are increased, demand is reduced; and, if demand is reduced, the need for the proposed facility is eliminated. No evidence to this effect was introduced. In fact, testimony revealed that the demand for electricity is price inelastic; i. e., a rate increase does not result in a decrease in demand.

      . Even had this court excluded Exhibit 18 from consideration, there remains other exhibits and testimony of several witnesses to support the Commission’s findings.

      . Exhibit 26, “A Study of Base Load Alternatives for the Northeast Utilities System" revealed that total generation costs in mills per kilowatt hour were lower for a nuclear unit than for a coal unit. Likewise, the operation and maintenance costs were lower for the nuclear plant than for the coal plant. Exhibit 27, “Report to Long Island Lighting Co. on Base Load Alternatives, for the 1981-1984 Period” provided nearly identical conclusions.

      . Pursuant to contract, the Nuclear Engineering Staff of the University of Missouri was hired as consultants to the Commission to provide expertise in nuclear matters.

      . The Commission must determine whether it will issue its certificate of convenience and necessity. To arrive at its determination, the Commission must find that the nuclear facility is adequate to meet the needs of the public and is economical when compared with alternative sources of energy.


source: Caselaw Access Project

author: GUNN, Judge. WILLIAM H. CRANDALL, Special Judge,

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Paul Albert WOOD, Jr., Defendant-Appellant.
    No. 38074.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Jan. 17, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.
    Application to Transfer Denied April 10, 1978.

      Lester W. Duggan, Jr., St. Charles, for defendant-appellant.
    Paul R. Otto, Bruce E. Anderson, Frank J. Murphy, Jefferson City, Keith M. Sutherland, Pros. Atty., Warrenton, for plaintiff-respondent.
   GUNN, Judge.

Defendant was found to be in possession of a butcher knife discovered in a search of his person. In a jury waived trial he was convicted of a § 564.610 violation — carrying a concealed weapon. On appeal, defendant argues: (1) that the evidence was insufficient to establish he was carrying a concealed weapon; (2) that the butcher knife was not a weapon; (3) that the search was illegal; and (4) that the testimony of a State’s witness should have been extirpated. We affirm.

Defendant was being held in the Warren County jail awaiting trial on a murder charge. The Warren County sheriff had obtained the assistance of the Montgomery County sheriff and a deputy to aid in guarding the defendant during the proceedings. On the second day of the trial, the Montgomery County sheriff and his deputy went to escort the defendant from his jail cell to the courtroom. After the sheriff unlocked the cell door, the deputy accompanied the defendant to the adjoining hallway. The following testimony describes the events which led to defendant’s conviction and this appeal:

“Q. [Prosecutor] When you went into an adjoining hallway or room with Mr. Wood [defendant] what, if anything, did you do?
A. [Deputy sheriff] I made a physical search of Mr. Wood.
Q. All right. For what purpose?
A. For any type of weapons.
Q. And did you find any weapon on Mr. Wood when you searched him?
A. Yes, sir.
Q. And what was it that you found? * * * * * *
A. (By witness) I found a butcher knife.
* ⅜ * * * *
Q. What did you do with this butcher knife? Excuse me. Where was this found on Mr. Wood’s person?
A. Attached to his right leg.
Q. And how was it attached to his leg?
A. It had a rubber band around the handle portion and the calf of his leg.
Q. And otherwise it was loose on his leg?
A. Yes.”

The Montgomery County sheriff testified that he was with the deputy at the time defendant was removed from his cell to be taken to the courtroom for the murder trial; that both the deputy and defendant were visible to him when they went into the hallway where defendant was searched; that he did not see the deputy search the defendant but that he turned when the deputy hollered at him and was handed the butcher knife taken from the defendant as a result of the deputy’s search.

Defendant argues that the foregoing evidence is not sufficient to establish the necessary ingredient of concealment for defendant’s conviction; we disagree. Obviously, this matter would have been much simpler if the prosecutor had interrogated as to whether the butcher knife was found under the defendant’s trouser leg. The prosecutor’s interrogation is therefore somewhat inelegant. But under the circumstances here, we do not believe that the prosecutor’s failure to propound the specific concealment question was fatal to the State’s case. In reaching this conclusion, we are guided by certain fundamental legal precepts.

In reviewing the trial court’s denial of defendant’s motion for judgment of acquittal, this court is to “consider as true all the evidence favorable to the state and the favorable inferences to be drawn therefrom ...” State v. Sloan, 548 S.W.2d 633, 637 (Mo.App.1977). All evidence and inferences to the contrary are to be disregarded. State v. McNeal, 535 S.W.2d 286 (Mo.App.1976). The defendant would deprive the State of the basic tenet regarding reasonable inferences. We indulge the State the single, reasonable inference that the defendant was not going to appear at his trial on a murder charge with a butcher knife strapped to his leg in view for all to see.

The defendant concedes that the test of concealment is whether the weapon is carried in such manner as not to be discernible by ordinary observation. State v. Cavin, 555 S.W.2d 653 (Mo.App.1977); State v. Odzark, 532 S.W.2d 45 (Mo.App.1976); State v. Jones, 523 S.W.2d 152 (Mo.App.1975); State v. Achter, 514 S.W.2d 825 (Mo.App.1974); State v. Jordan, 495 S.W.2d 717 (Mo.App.1973). It is manifest that the defendant’s butcher knife was not discernible by ordinary observation if he had to be searched before the weapon was discovered. It is clear that the knife was not discernible to the peace officers who were taking defendant from his cell to court. Thus, it would be vacuous and an unreasonable inference to suggest that defendant was going to present himself for trial in the courtroom with a butcher knife in a plain view secured to his leg. The only inference that can be drawn from the facts is that the butcher knife was in some way attached to defendant's leg to conceal it from ordinary observation, particularly as it was necessary to search the defendant to discover the knife. There has been no suggestion that the eyesight of either officer was defective, and such an inference would be unreasonable.

State v. Odzark, supra, offers us guidance for our position. In Odzark, the defendant contended that at the time he was approached by police, a gun butt was plainly visible from his trousers’ waistband and that a charge of carrying a concealed weapon was not justified. Police testified that the weapon was revealed “as a result of the ‘frisking’ and search of the defendant.” The defendant’s conviction was upheld. So, too, in this case the evidence was that the discovery of the butcher knife was accomplished through the search of the defendant. See State v. Achter, supra, where it was held that even though a portion of a pistol was protruding from an automobile seat, it was reasonable to infer that the weapon was not discernible by ordinary observation. See also State v. Jones, supra, noting that a policeman apprehending a person suspected of crime would be observing the subject with more than ordinary care for the purpose of seeking weapons, and if, under such circumstances, a weapon was not seen, such weapon was not “discernible by ordinary observation” and was thereby concealed. As poignantly stated in State v. Cavin, supra, at 654: “. . .a weapon is not concealed simply because it is not discernible from a single vantage point if it is clearly discernible from other positions. It may be concealed, however, where it is discernible only from one particular vantage point.” Here, the deputy was undertaking the specific task of checking to determine whether the defendant was armed before entering the courtroom, and a search of the defendant was necessary to reveal the butcher knife. The only conclusion to be reached from the facts of this case is that inasmuch as it took a search of the defendant to disclose the butcher knife strapped to his leg, the knife was concealed so as not to be discernible by ordinary observation.

The defendant also suggests that the butcher knife was not a dangerous weapon, a fatuous argument under the circumstances here. There was sufficient evidence to support the conclusion reached by the trial court that a knife of the type carried by defendant, under the circumstances, was a dangerous and deadly weapon. State v. Shannon, 467 S.W.2d 4 (Mo.1971); State v. Ellinger, 549 S.W.2d 136 (Mo.App.1977.)

The defendant also contends that the search for weapons was an illegal search as it was made without a warrant, was not incident to a lawful arrest and was without probable cause. We believe defendant’s argument in this regard to be untenable as the search was a permissible custodial search, reasonable under the circumstances. Such search was a reasonable and permissible security measure even though the defendant was not a convicted inmate at the time. Defendant had not yet been convicted, but he was detained in lawful custody similar to a prisoner and, thus, subject to surveillance and search. Kansas City v. McCoy, 525 S.W.2d 336 (Mo. banc 1975); State v. Williams, 486 S.W.2d 468 (Mo.1972); State v. Darabcsek, 412 S.W.2d 97 (Mo.1967).

Finally, the defendant argues that the trial court erred in failing to strike the testimony of the State’s witnesses after it was determined that the prosecutor had failed to disclose an investigative report of one of the sheriff’s deputies. Rule 25.45 V.A.M.R. permits the trial court to impose such sanctions as it deems just under the circumstances where there is a failure to disclose information and a failure to comply with an applicable discovery rule or order. Obviously, much is left to the trial court’s discretion as to the imposition of sanctions. We find no abuse of the trial court’s discretion in refusing to disallow the testimony of the State’s witnesses.

Judgment affirmed.

SIMEONE, C. J, and SMITH, CLEMENS and McMILLIAN, JJ., concur.

WILLIAM H. CRANDALL, Jr., Special Judge, dissents.

KELLY, J., joins in dissent by WILLIAM H. CRANDALL, Special Judge.

WILLIAM H. CRANDALL, Special Judge,

dissenting.

I respectfully dissent. I disagree with the majority which found that the evidence was sufficient to establish that the weapon which the defendant was carrying was concealed.

Generally, the test of concealment is whether the weapon is so carried as not to be discernible by ordinary observation. State v. Bordeaux, 337 S.W.2d 47, 49 (Mo.1960); State v. Crone, 399 S.W.2d 19, 21 (Mo.1966). The issue of concealment is normally a question to be decided by the trier of fact. In this case, however, there was not sufficient evidence as to the concealment of the weapon. The only testimony relating to the question of concealment came from Deputy Sheriff Whyte, who testified that he searched the defendant, and found the knife attached to his right leg by means of a rubber band. There was no evidence that Deputy Whyte could not see the weapon when he approached the defendant, or that the weapon was not visible, or that the defendant’s clothing prevented a view of the weapon. In short, the record is devoid of any further reference relating to the alleged concealment of the weapon. The inference, that because the officer searched the defendant that, therefore, the weapon was concealed is not sound logic. Such an inference would shift the burden of going forward with the evidence to the defendant to show that the weapon was not concealed.

I would therefore reverse the judgment of conviction and remand the case for trial.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Irma HOELTING, Defendant-Appellant.
    No. 37680.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 24, 1978.
    Motion for Rehearing and/or Transfer Denied March 10, 1978.
    Application to Transfer Denied April 10, 1978.
    Shaw, Howlett & Schwartz, Robert M. Meyers, Clayton, for defendant-appellant.
    Jess L. Mueller, Pros. Atty., Lincoln County, Troy, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant Irma Hoelting appeals from a judgment entered on a jury verdict in the circuit court of Lincoln County finding her guilty of supplying intoxicating liquor to a minor. § 311.310, RSMo 1969. The trial court sentenced defendant to pay a fine of $850.00. On appeal, defendant does not challenge the sufficiency of the evidence and therefore a recitation of the facts of the trial is unnecessary.

For reversal defendant argues first, that the court lacked jurisdiction to the cause because the information did not properly charge a criminal offense in that it did not charge the defendant with selling intoxicating liquor to a minor. Secondly, that the court committed prejudicial error when it permitted the state to introduce evidence that the liquor contained in the bottle was, in fact, intoxicating. Thirdly, that the trial court committed prejudicial error in the submission of Instruction No. 5 in that it did not carry a general converse instruction as required by MAI-CR 2.04 and the notes following. For the reasons discussed below, we affirm the judgment.

Defendant’s first two arguments concern basically the same issue, that is, whether the information was sufficiently clear so as to properly charge the defendant with a crime. The information states that defendant “. . . did then and there unlawfully, wrongfully, willfully supply intoxicating liquor, to-wit: a 12 oz. bottle of labeled Budweiser 5% beer, to a person under the age of 21 years . . . .” Defendant claims that the information is defective in that it merely charges the selling of a bottle, rather than a bottle of intoxicating liquor. Therefore, proof of such a charge is claimed to be inadmissible.

The purpose of an information is to inform the defendant of the nature and cause of the accusation made against him. The information must be sufficient to inform the accused of this matter so that he may understand the charge and adequately prepare his defense. Art. I, § 18(a), Missouri Constitution; State v. Fletcher, 512 S.W.2d 253, 255 (Mo.App.1974) and 42 C.J.S. Indictments and Informations § 90. The information in this case is sufficiently clear. The information clearly states that the defendant did supply intoxicating liquor, and further goes on to enumerate the exact item which is alleged to be the intoxicating liquor, that being Budweiser five percent beer.

Appellant’s third argument does have merit in that the state did leave out the general converse to Instruction No. 5 which should have read, “However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.” Such a general converse is mandatory under MAI-CR 2.04. State v. Knox, 529 S.W.2d 455, 463 (Mo. App.1975). However, appellant fails on two grounds: first, appellant failed to set forth in full in the argument portion of the brief the jury instruction given erroneously. Such is mandated by Rule 84.04(e), and is grounds for affirmation under Rule 84.08. Thus, appellant would fail on this ground as the point has not been preserved for appeal. State v. Rantz, 546 S.W.2d 200, 201 (Mo. App.1977); State v. Larkins, 518 S.W.2d 131, 135 (Mo.App.1974). Secondly, although there is error in Instruction No. 5, this error does not constitute prejudicial error requiring reversal of the conviction. The trial court’s Instruction No. 6 converses the elements of the state’s verdict director and cures any error. A similar situation was presented in Knox, supra, where the state omitted the general converse paragraph from the verdict director. In Knox, likewise, a separate converse instruction was given. Here the court held that the converse instruction cured the error resulting from the omission in the verdict director. We hold likewise.

The judgment of the trial court is affirmed.

CLEMENS, P. J., and SMITH, J., concur.


author: WASSERSTROM, Judge. PER CURIAM:

text:
    STATE of Missouri ex rel. J. R. STEWART, Appellant, v. The Honorable Richard KING, and Bruce Lowrey, Respondents.
    No. KCD 29130.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.
    Rehearing Denied Feb. 27, 1978.
    Application to Transfer Denied May 9, 1978.

      J. Courtney Bowlin, Blue Springs, Robert A. Iannone, Kansas City, for appellant.
    James S. Cottingham, Richard G. Carlisle, Independence, for respondents.
    Before SHANGLER, P. J., WASSER-STROM, J., and MASON, Special Judge.
   WASSERSTROM, Judge.

The question for determination is whether an amendment to the Independence Zoning Ordinance proposed by relator Stewart was adopted by the requisite majority of the Independence City Council. The respondent mayor declared to the contrary, and Stewart applied to the Circuit Court for a writ of mandamus commanding the mayor to declare the ordinance passed. The Circuit Court issued its alternative writ of mandamus but after hearing the case on stipulation of facts and briefs, it quashed the alternative writ. From that ruling, Stewart pursues this appeal.

Stewart owns certain land in Independence, Missouri, zoned District R-l. He filed an application to the Independence City Planning Commission for rezoning of that property to District C-P-O. The Commission held an evidentiary hearing, following which it recommended to the City Council that the zoning application be granted.

Opponents to the rezoning duly filed a protest, which had the effect under Section 89.060 RSMo 1969 of requiring a “favorable vote of three-fourths of all the members of the legislative body.” The City of Independence has a council of seven members, of whom the mayor is one. At the time Stewart’s proposed zoning amendment came before the council, there was a vacancy by reason of the death of Councilman Theiss. When the ordinance for the proposed zoning amendment came up for final roll call, Mayor King abstained, indicating his intention not to vote on the bill because his law firm represented the applicant Stewart. A vote was then taken, resulting in four votes in favor of the proposed change and one against. Mayor King thereupon declared that the bill had failed of passage.

The parties agree that in computation of the requisite three-fourths majority, the number of councilmen to be considered shall be reduced by reason of Councilman Theiss’ death. They further agree that if the number of members divided by three-fourths results in a fraction, then the required number must be rounded up to the next higher full number. So, if King must be counted as a member of the council, the required vote for passage of the ordinance was five; and if King’s abstention is not counted as a vote for the majority, then the four affirmative votes cast in favor of the ordinance were insufficient.

Stewart offers two alternative answers to this problem which would give a result in his favor. He argues, first, that when King abstained, his vote should have been considered as concurring with the majority thus giving a tally of five to one in favor of the ordinance. He argues, second, that King’s abstention from voting because of conflict of interest should be treated as a disqualification which reduces the number of councilmen for the purpose of this vote, with the result that the council became a body temporarily of only five members, of which the four affirmative votes actually cast constituted a three-fourths majority.

I.

In support of the first of those arguments, Stewart relies on the common law rule that a councilman has a duty to vote. As a corollary to that rule, any passed vote is to be treated as an acquiescence in and a vote with the majority. Bonsack & Pearce, Inc. v. School District of Marceline, 226 Mo.App. 1238, 49 S.W.2d 1085 (1932); Mullins v. Eveland, 234 S.W.2d 639 (Mo.App.1950).

However, this case is governed by statute, not the common law. Section 89.060 requires a favorable vote of all the councilmen. This rather clearly means that there must be actual votes affirmatively cast by three-fourths of all councilmen existing at the time of the vote. This precludes counting in favor of passage any vote only constructively (but not actually) cast.

In opposition to this conclusion, Stewart relies heavily upon Northwestern Bell Telephone Co. v. Board of Commissioners of Fargo, 211 N.W.2d 399 (N.D.1973). In that case, out of five commissioners two voted yes, one voted no and two abstained because of conflict of interest. The North Dakota court held the motion passed on the theory that the two passed votes had to be counted on the side of the majority. The court reached this result despite a statute requiring the concurrence of a majority of “all of the members” of the governing body.

Northwestern Bell does support Stewart, but that opinion constitutes a minority point of view. A considerable collection of cases on point appears in an annotation “Abstention from voting of member of municipal council present at session as affecting requisite voting majority,” 63 A.L.R.3d 1072, Section 7, l.c. 1091, showing a majority of the decisions throughout the country to be contrary to that reached in Northwestern Bell. See also Ram Development Co. v. Shaw, 244 N.W.2d 110 (Minn.1976).

Because of our own analysis of Sec. 89.-060, which is supported by the weight of authority in other jurisdictions, we decline to accept Stewart’s first argument.

II.

Stewart’s second argument, which he presses as apparently his preferred position, rests on the concept that Mayor King’s disqualification for interest is equivalent to non-availability by reason of death and should equally justify a reduction in the number of votes required to be taken into consideration. He cites for this argument City of Alamo Heights v. Gerety, 264 S.W.2d 778 (Tex.App.1954).

Essential to this argument, however, is Stewart’s unarticulated assumption that Mayor King was in fact disqualified. Not so. Disqualification for present purposes should be understood as meaning a bar from action because of a public standard established either by legislative mandate or court decision. As to court decisions covering the present situation, the results reached in different jurisdictions are not in complete harmony. Nevertheless, the court decisions in Missouri are quite clear on this matter as spelled out in Coffin v. City of Lee’s Summit, 357 S.W.2d 211 (Mo.App.1962); Strandberg v. Kansas City, 415 S.W.2d 737 (Mo. banc 1967) and Smith v. City of Lee’s Summit, 450 S.W.2d 485 (Mo.App.1970). Under these decisions, a legislator is barred by conflict of interest from voting only on matters of a judicial, quasi judicial or contractual nature; and the courts will not interfere with his vote in a purely legislative matter absent some statutory provision limiting his right to vote. Furthermore, those cases expressly hold that an amendment to a zoning ordinance is a purely legislative matter within the scope of this rule. Therefore the Missouri courts would not interfere with Mayor King’s vote.

Nor is there any legislative direction which barred Mayor King from voting on this ordinance. The City of Independence has adopted as part of its Charter a code of ethics for councilmen and other officers and employees of the city. Section 5.3(3) under that Code provides:

“Councilmen and other officers and employees who have a direct or indirect financial or other private interest in any proposed legislation and who participate in decision before or give official opinion to the council, shall publicly disclose the nature and extent of such interest, and the disclosure shall be entered in the journal of the council.”

It is to be noted that the code of ethics does not prohibit a councilman from voting upon a matter in which he has a private interest. The sole requirement is that he make a public disclosure thereof. The implication can fairly be drawn that the code of ethics was intended to permit the councilmen to vote, once the disclosure of interest had been made.

This provision and interpretation of the Independence code of ethics falls within the pattern of the State statutes on “Regulation of Conflicts of Interests and Lobbying,” Section 105.450 et seq., RSMo 1969. Section 105.460 provides that if the governor, lieutenant governor or any member of the general assembly has a substantial personal or private interest in any bill before the general assembly, then he shall “before he passes on the measure or bill, file a written report of the nature of the interest to the chief clerk of the house or the secretary of the senate * * This section carries the plain implication that the only requirement is public disclosure and that after disclosure the official in question has complete freedom to exercise his right of approval or disapproval of the legislative proposal.

Mayor King’s action in declining to vote because of his conflict of interest was highly commendable and constitutes a tribute to his sense of ethical conduct. His act of abstaining, however, was his own personal decision, uncoerced by any public rule of law. His abstention in this instance therefore cannot be distinguished from any other voluntary abstention and falls within the rule already discussed in Section I of this opinion. Stewart’s second argument therefore also must be rejected.

Affirmed.

All concur.

ON MOTION FOR REHEARING

PER CURIAM:

In his motion for rehearing, Stewart challenges the statement in the opinion that there is no legislation which barred Mayor King from voting on the zoning ordinance amendment. In this connection Stewart calls attention for the first time to Section 105.495 RSMo 1969, which provides:

“No officer or employee of an agency shall enter into any private business transaction with any person or entity that has a matter pending or to be pending upon which the officer or employee is or will be called upon to render a decision or pass judgment. If any officer or employee is already engaged in the business transaction at the time that a matter arises, he shall be disqualified from rendering any decision or passing any judgment upon the same. * *

He cites (for the first time) and relies upon Attorney General’s Opinion No. 146, March 4,1966, and Smith v. City of Lee’s Summit, 450 S.W.2d 485 (Mo.App.1970) to show that a city constitutes an “agency” within the meaning of that statutory provision and that city councilmen are covered thereunder.

Whether the city council of Independence is a covered “agency” within the meaning of Section 105.495 depends upon the statutory definition contained in Section 105.-450(1) which defines the term “agency” to mean, “any department, office, board, commission, bureau, institution or any other agency, except the legislative and judicial branches, of the state or any political subdivision thereof including counties, cities, towns, villages, school, road, drainage, sewer, levee and other special purpose districts.” A reading of this definition leads to the immediate conclusion that a city council (clearly the “legislative branch” of the city) is expressly excluded from the scope of the definition. Nevertheless, Attorney General’s Opinion No. 146 undertakes to establish to the contrary upon the following forced reasoning:

“We meet at once with the problem as to what is included and what is excluded in the Act’s definition of ‘Agency’. The exception clause above referred to read literally excepts the legislative and judicial branches of the State and all the political subdivisions therein mentioned including counties, cities and others. We note, however, that House Bill 422, as Truly Agreed To and Finally Passed, has a comma immediately after the words ‘judicial branches’. If this definition is read literally, agency would be applicable only to the executive department and boards and commissions of the state of Missouri. If this language were construed with the comma following the word ‘branches’ as the bill was passed we meet some other difficult problems. This would then provide an exception and make the law not applicable to the judicial and legislative branches or political subdivisions. This would produce most difficult and artificial interpretations of what is executive and what is legislative in cities, school districts, road districts and other specified districts. This would cause interpretation that would or might be artificial and unrealistic. It might also largely nullify what we believe was the legislative intent and purpose to stop the conflict of interest evil. We are convinced that the legislative intent was that the exception clause was intended to apply only to the Legislative and Judicial Branches of the state. The punctuation should have been therefore that a comma should be after the word ‘State’. We therefore believe that the Legislative intent was that the word agency was intended to be applicable to any political subdivision of the state, including counties, cities, towns and villages, school, road, drainage, sewer, levee and other special purpose districts.”

An Attorney General’s opinion can be entitled to no more weight “than that given the opinion of any other competent attorney.” Gershman Investment Corporation v. Danforth, 517 S.W.2d 33, l.c. 36 (Mo. banc 1974). We find Attorney General’s Opinion No. 146 unpersuasive. It points out that Section 105.450, as set forth in RSMo Cum.Supp.1965, contained punctuation different from that which appeared in H.B. 422 as Truly Agreed To and Finally Passed. That punctuation has been corrected in the statute as it presently appears in RSMo 1969; but that correction does not help the Attorney General in the conclusion sought to be drawn in Opinion No. 146. As that Opinion itself acknowledges, the exception as so revised makes the law inapplicable to the legislative branches of political subdivisions.

Opinion No. 146 is entirely correct in demanding that the statute be read as passed by the legislature and not as revised by the reviser. Protection Mutual Insurance Co. v. Kansas City, 504 S.W.2d 127 (Mo.1974). So reading the statute, however, does not enable Opinion No. 146 to reach the result which it desires. In order to reach that result, the Opinion must and does go still further and says that even the punctuation adopted by the legislature was incorrect and did not accord with the true legislative intention. What Opinion No. 146 attempts to do is to rewrite the statute in accordance with the notions held by the then Attorney General’s office as to what constituted good public policy. That it had no right to do, and we cannot give that Opinion any effect.

It should also be noted that if Section 105.495 were interpreted in the manner sought by Opinion No. 146, so as to disena-ble an Independence councilman from voting in the ease of conflict of interest, then the statute as so interpreted would create a more onerous requirement than Section 53(3) of the code of ethics adopted by and made a part of the Independence City Charter. That interpretation of Opinion No. 146 would unnecessarily create a conflict between the statute and the charter. A contrary rule should be followed of attempting to construe the statute and charter so that they may exist together in harmony.

Stewart also errs in his attempted reliance upon Smith v. City of Lee’s Summit, supra. In that case, Judge Howard, speaking for this court, expressed grave doubt whether a city council falls within the definition of the word “agency” as found in Section 105.450, and he went on to discuss the question of conflict of interest solely upon an assumption that the statute was applicable. In this respect the Smith opinion states:

“Both parties seem to assume that this statute is applicable. Therefore, in spite of the obviously serious question of its applicability, when the definition of the word ‘agency’, as found in section 105.-450, is read in conjunction with said section 105.495, we shall assume without deciding and for the purposes of this opinion only, that section 105.495 may be applicable.”

That which the Smith opinion strongly hinted, we now hold expressly: the term “agency” as defined in Section 105.450, does not include (and instead excludes) a city’s legislative body.

The motion for rehearing is overruled.

      . The author of the annotation in 63 A.L.R.3d at l.c. 1080 discusses City of Alamo Heights with approval. See, however, to the contrary Livesey v. Borough of Secaucus, 97 A. 950 (N.J.1916).

      . The Independence Charter and its provisions are entitled to judicial notice. State ex rel. Voss v. Davis, 418 S.W.2d 163 (Mo.1967); Purdy v. Foreman, 547 S.W.2d 889, 891 (Mo.App.1977).


author: ROBERT R. WELBORN, Special Judge.

text:
    Maudie McLERRAN, Respondent, v. Lloyd Junior McLERRAN, Appellant.
    No. KCD 28942 and KCD 29112.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 27, 1978.
    Application to Transfer Denied April 10, 1978.
    Pine & Ulrich, Gayles R. Pine, Warrens-burg, for appellant.
    George H. Miller, Royal M. Miller, John E. Miller, Miller, Miller & Miller, Sedalia, for respondent.
    Before. SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal by husband from decree in marriage dissolution proceeding insofar as it related to division of marital property. Consolidated with that appeal is appeal of husband from judgment of contempt, based upon his failure to comply with court’s decree dividing marital property.

Maudie Meads, a widow with four minor children, was marred on September 4, 1963 to Lloyd Junior McLerran, the father of a teenage daughter by a prior marriage. Until their final separation in September, 1973, the parties with their children (no children were born to the marriage) resided on a 33.5-acre farm which Maudie and her former husband had owned and which became her sole property upon his death. In 1964, the parties bought an adjoining 43-acre farm for $6,000. The parties, together with the children, farmed these two tracts along with other rented land, and the proceeds of the farming operation were expended for improvements to the 33.5-acre farm, paying for the 43-acre tract, and general farm and household operating expenses. The farm operation included cash crops of grain and also a livestock operation, involving registered Angus cattle and hogs. While her children were minors, Maudie received on their behalf social security and veteran’s benefits, earned by her former husband. These payments exceeded $59,000 during the period of the marriage. Some $45,000 of this amount went into family living expenses. The balance went into saving accounts, paid to the children as they attained their majority. Junior worked as a sales clerk one day a week during the marriage, earning $25 per day for such work, which he contributed to the family expenses.

Shortly before the final separation in September, 1973, the parties purchased a house in Clinton for $27,500. Upon the separation, Maudie, with her two minor sons, moved to that house and Junior remained at the farm residence.

The decree of dissolution was entered in May, 1975. The property subject to division was as follows:

1. The 33.5-acre farm.
2. The 43-acre farm.
3. The Clinton residence.
4. 74 head of cattle.
5. Sows and pigs.
6. 1968 Pontiac auto.
7. 1973 Chevrolet pickup truck.
8. Two tractors, hay baler, combine.
9. Lot of miscellaneous farm tools and equipment.
10. Household furnishings.

The Clinton residence had been financed by a $17,500 loan secured by a deed of trust and a $10,000 unsecured loan. The value of the parties’ equity was nil. In addition the parties were obligated on a $10,000 loan to the First National Bank of Clinton, secured by a chattel mortgage on machinery and livestock.

The court’s decree awarded the 33.5-acre farm to Maudie. The remainder of the property was to be divided, with Junior to receive an additional $1,965 for contribution to the increased value of the 33-acre tract.

In the decree here appealed from, the court notes that at the time of the dissolution proceedings, Junior agreed to an auction sale, at which the livestock, farm machinery and some furniture would be sold. According to the court, he did not conduct the sale, “but instead appealed from the property disposition order to the Missouri Court of Appeals, Kansas City District.”

When the matter came on for hearing in this court, it was concluded that the record was too sparse to permit review of the trial court’s order and the cause was remanded for further hearing and action by the trial court.

A hearing was held on June 26, 1976, at which the following particular matters were developed:

1. Following the first order and while Junior was living in the residence on the farm, described by Maudie as “in a beautiful shape” in 1973, the house had been practically destroyed, dogs had ruined the carpeting, the plumbing had been allowed to rust, holes had been shot in the walls, etc.

2. Junior had disposed of, admittedly, $21,181.18 worth of crops and livestock from the farm, without consulting Maudie or in any way accounting to her.

At the conclusion of the hearing, the court made the following division of the marital property:

To Junior:

1. “The moneys he has already received and now has in his possession as described above.” (Apparently this referred to the proceeds of the sales of livestock, which the court had previously detailed in its order.)

2.A deep freeze, a heater, and other furniture which he brought to the marriage.

To Maudie:

1. The 33 and 43-acre tracts.

2. The 1968 Pontiac and the Chevrolet pickup.

3. The farm machinery.

4. A sow and four or five pigs.

5. All household furniture in her possession at Clinton or on the farm, except that awarded to Junior.

6. The balance remaining of $10,801.03 in the hands of the clerk of the court, after payment to the First National Bank of Clinton of $6,200, the balance due on the $10,-000 livestock and machinery note above mentioned, and unpaid court costs.

(The $10,801.03 represented the proceeds of cattle sold by Junior. At the hearing, he stated that that amount plus some $3,779.66 that he had received from other sales of cattle were in his safe deposit box at a Warsaw bank. The court ordered Junior to appear at the bank the following Monday and to deliver the contents of the box to officers of the First National Bank of Clinton who were ordered to deposit the same to the credit of the clerk of the court. When the box was opened, only the one check for $10,801.03 was in it and it was so deposited.)

There was little evidence on the value of the property involved. There was testimony that while the house on the 33-acre farm was in “beautiful” shape, $40,000 had been offered for the place. Junior valued the 43-acre tract at $600 per acre. The Chevrolet truck was inoperable and had been sitting in a field for several months. It can be assumed that any household furnishings to which appellant might be entitled were of nominal value.

The Clinton house was permitted to be returned to the financing agency in return for a release of the parties from liability for any deficiency.

On this appeal, the contention of appellant is not clearly articulated, but apparently his complaint is against the trial court’s failure to allow him the $8,915 which he contributed to the marriage in assets owned by him prior to the marriage and against its “awarding all of the marital property owned by the parties to the Respondent which was not a division of marital assets.”

Insofar as the $8,915 is concerned, appellant makes no argument that the certificate of deposit and subsequently sold boat which made up that total amount have remained intact or that there is any demonstration that identifiable property was exchanged therefor which could qualify as “property acquired in exchange for property acquired prior to the marriage” and which would be non-marital property under Section 452.330 2.(2), RSMo 1975 Supp. Therefore, there was no obligation upon the court to allocate this specific sum to appellant.

As for the division made of the property, the trial court made rather extensive findings as the basis for the division which he made. He found that, primarily by her use of the social security and veteran’s administration payments received by her, Maudie had contributed substantially more toward the acquisition of the marital property than Junior had. § 452.330 1.(1), RSMo 1975 Supp. The court further found that:

“ * * * Plaintiff as a wife, homemaker and an active worker on the farm in making improvements and caring for livestock, fulfilled her marital obligations substantially — the defendant did not claim any misconduct on her part. The court finds however, that Defendant substantially failed in his marital obligations in that: he was addicted to the excessive use of intoxicants; he became drunk and abusive to Plaintiff frequently, and repeatedly assaulted Plaintiff with threats of violence and with actual violence to her person. Following the separation he commenced a course of conduct designed to cause damage to her residence property by permitting the plumbing to freeze and become inoperative during his occupancy, he permitted the sewer serving the residence to be stopped up and continued to use it in that condition, he caused damaging spike nails to be driven into the walls and doors and woodwork of the residence, holes to be made in the walls, the sink and bathroom fixtures to be rusted and damaged, the shag rugs to be soiled with dog waste, shutters to be torn from the windows, glass to be broken, the residence and grounds to be grown up in weeds, the interior of the residence and grounds to be grown up in weeds, the interior of the residence to be damaged from inside gunshot, and the end of a garage damaged from running a motor vehicle into it. Substantial costs will be required to restore the residence into its former condition. Defendant sold and dealt with the joint property of the parties at will, with no consultation or consent of Plaintiff, and with no accounting or pay over to Plaintiff of any moneys. Defendant told Plaintiff that he would see that she would never enjoy any of her property, and upon one occasion when Plaintiff inquired of him where the cattle had disappeared to Defendant replied by accusing Plaintiff with stealing the cattle.”

He found that appellant had brought cash and property valued at $8,915 to the marriage and that respondent brought the 33-acre farm, cash and personal property in the amount of $9,005, and “substantial” vested social security and veteran’s administration benefits.

The trial court found that based upon those factors, the division ordered was just.

Appellant has assigned no error on the part of the trial court on its factual findings. He does question the finding that he was responsible for the deplorable condition into which the house on the farm fell following the separation, but, except for pointing to appellant’s disclaimer of responsibility, he has made no effort to show that the finding is not supported by the evidence.

Appellant has advanced some abstract propositions in support of which he has cited In re Marriage of Schulte, 546 S.W.2d 41 (Mo.App.1977); Nixon v. Nixon, 525 S.W.2d 835 (Mo.App.1975), and Stark v. Stark, 539 S.W.2d 779 (Mo.App.1976), but he has attempted no demonstration of how the holdings of those cases apply to this case.

His primary complaint appears to be that the trial court’s division of the property was made for the purpose of punishing him for his conduct subsequent to the dissolution decree. He has not shown that the trial court was not entitled to take such conduct into consideration in making its division of the property. Section 452.330 1.(1)—(4) does not limit the trial court to the factors there enumerated in dividing marital property.

Contrary to appellant’s contention, the trial court did not award all of the marital property to respondent. It permitted appellant to retain the proceeds of the sale of a portion of the livestock, which was marital property. Respondent suggests that there was other livestock, particularly calves born between the date of the dissolution and the date of the hearing, for which appellant failed to account. Appellant was somewhat equivocal in his testimony on this score, saying that he didn’t “believe” he had sold other cattle. Respondent’s assumption on this score need not be pursued.

The burden was upon appellant to demonstrate that the trial court’s order either was not supported by substantial evidence or was against the weight of the evidence, or erroneously declared the law or erroneously applied the law. Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo. banc, 1976). He has not sustained that burden and, therefore, the trial court’s judgment must be affirmed.

The court’s decree, entered July 3, 1976, declared that Maudie “ * * * is entitled to immediate possession * * * ” of the property awarded her. On July 12, Junior filed notice of appeal to this court. On July 13, Maudie filed an affidavit on the basis of which the court issued its order to Junior to show cause why he should not be punished for contempt for failure to abide by the July 3 decree. An application for prohibition was made to this court which declined to issue the writ. The matter came on for hearing on October 12, 1976, after the stop order issued by this court had been withdrawn. At that time counsel for Junior pointed out that an appeal had been filed from the division decree. The trial court stated that “on an appeal it doesn’t stay an execution of a decree on possession of real estate.” The court denied a request for continuance pending disposition of the appeal and when appellant offered no evidence, the trial court found Junior in contempt. It sentenced him to the custody of the sheriff for 90 days “or until such time as he gives possession of this property in the Court decree to” Maudie. A request that the court set bond was denied. This court later fixed bond at $2,500.00. Notice of appeal from the judgment of contempt was filed.

On this appeal, appellant contends that since he had perfected his appeal from the decree dividing the property, that judgment was not final and therefore he was not guilty of contempt in failing to abide by it. Appellant’s brief recites the facts, some matters which do not appear in the transcript, and a single legal argument, here set forth in toto:

“If appellant had conveyed his interest in marital property to his ex-wife, Maudie McLerran, pursuant to the judgment of the court, then his appeal would have been moot as there would have been no issue for the appeal court to decide on appeal. The Judgment of the trial court on July 3,1976, relative to division of marital property was not final and the trial court was in error in using the strong arm of the law to compel appellant to obey the judgment which was not final because of appellant’s appeal.

“State ex rel. Stanhope v. Pratt, 533 S.W.2d 567 (Mo.1976)

“Fulton v. Fulton, 528 S.W.2d 146, 157 (Mo.App.1975)

“V.A.M.R. Civil Rule 92.15

“State ex rel. Wendt v. Journey, 492 S.W.2d 861 (Mo.App.1973).”

The cases cited by appellant, other than repeating the oft-stated admonition that contempt is a power to be exercised with restraint (Fulton v. Fulton, supra), do not deal with the proposition advanced by appellant, i. e., that the appeal precluded enforcement of the trial court’s decree. The appellant has the burden of demonstrating the error on the part of the trial court and his unsupported statement of the proposition is not adequate for that purpose. Inasmuch as the decree in question is affirmed, appellant will be obliged to comply with its terms. In these circumstances, this court does not consider itself obligated to pursue the matter on its own and since appellant has not borne his burden of showing that the trial court was wrong, the trial court’s order will be affirmed.

Judgment affirmed.

All concur.