author: DOWD, Judge.

text:
    Sam VOSEVICH, Plaintiff-Respondent, v. DORO, LTD., a corporation, et al., Defendants-Appellants.
    No. 36546.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 24, 1976.
    Motion for Rehearing to Court En Banc or to Supreme Court Denied April 13, 1976.
    Application to Transfer Denied June 14, 1976.

      Greensfelder, Hemker, Wiese, Gale & Chappelow, James L. Hawkins, Jerry D. Perryman, St. Louis, for defendants-appellants.
    Lewis, Rice, Tucker, Allen & Chubb, James W. Herron, St. Louis, for plaintiff-respondent.
   DOWD, Judge.

Plaintiff brought this quantum meruit suit to recover the reasonable value of his services in selling and promoting football shoes. Plaintiff sued Doro, Ltd., David R. Mars, Jr., and George P. Meier. The jury found for the plaintiff against all the defendants and assessed his damages at $64,-500. We reverse the judgment and remand the cause for a new trial.

In determining the sufficiency of plaintiff’s evidence, this court must give the plaintiff the benefit of every reasonable favorable inference which the evidence tends to support. Bremen Bank & Trust Co. v. Bogdan, 498 S.W.2d 306[1] (Mo.App.1973); James v. Turilli, 473 S.W.2d 757[6] (Mo.App.1971).

The plaintiff’s evidence tended to show the following. The defendant corporation is a St. Louis County firm that imported and sold a football shoe called the “Viking Athletic Shoe.” Defendants, David R. Mars, Jr., and George P. Meier had originally formed a partnership, “M & M Imports,” in 1961. In March 1966 the two men incorporated and were the sole stockholders of the defendant corporation. The plaintiff worked for the defendants from late 1965 through 1970, and during that period sales of Viking shoes increased from $17,512 in 1966 to $259,518 in 1970.

Plaintiff had been Mars’ junior high school football coach and met Mars accidentally in late 1965 and was shown the Viking football shoe. At that time the shoe was not selling and was no longer being imported. The plaintiff, impressed by the comfort and safety features of the shoe, was the first person to recognize these features and integrate them into a sales approach.

Plaintiff’s sales approach was to market the shoes not as store items but as specialty items with emphasis on the safety features of the shoes. From late 1965 to 1967 plaintiff personally delivered his sales talks to the Little League, high school and college football coaches and athletic directors in the St. Louis area. Although plaintiff sometimes wrote orders on the spot, the football officials usually sent their orders to the office after he had departed. Thus plaintiff has no direct knowledge of the number of local area sales that resulted from his efforts.

In 1967 plaintiff and the individual defendants decided to sell the shoes nationally, and a local sporting goods store thereafter handled all St. Louis area reorders. The new sales strategy was for plaintiff and one of the individual defendants to attend sporting goods and athletic conventions and shows throughout the country in order to promote shoe sales. At these shows they would contact manufacturers representatives and try to interest them in selling the shoes in their sales territories.

From 1966-70 plaintiff attended approximately a dozen shows. Sometimes the plaintiff alone attended these shows, but usually Mars went with him. If accompanied by Mars, plaintiff would do about 90% of the work in the booth, and Mars permitted plaintiff to do almost all the talking. At these shows plaintiff would first interview prospective manufacturers representatives; he would deliver his sales talk and then insist the representatives sell the shoes as a specialty item. If plaintiff was favorably impressed with the prospective representatives he would recommend them to Mars. Mars always made the final hiring decisions, but he always seemed to follow the plaintiff’s recommendations.

From 1966-70 plaintiff held the title of “National Sales Manager” for the shoes, and he sent out correspondence over his signature. Besides interviewing prospective representatives at shows, the plaintiff performed many other tasks. He kept up his contacts with area football officials. He occasionally telephoned the representatives to motivate them or help with their sales approaches. Plaintiff once made a trip to Tulsa to increase sales in that area. He once made a trip to collect a business debt for the defendants. The plaintiff helped Mars entertain European businessmen in his home. He came to the office on occasion and wrote correspondence, plus helping in the preparation of sales brochures the defendants mailed to prospective customers.

Plaintiff characterized himself as the “outside” man, who was responsible for the selling and promoting of the shoes. Mars was the “inside” man, in charge of clerical work, desk work, shipments, orders, and other duties.

During all this time plaintiff worked two weeks every month for the defendants, averaging about 25 hours per week. The remainder of the month plaintiff was an insurance consultant in New Orleans. Plaintiff never demanded any compensation for his sales and promotional services because he and Mars were good friends, and because he knew the company was struggling during its early years. Plaintiff was reimbursed for most of his show expenses, but he was never compensated for his services. The plaintiff and Mars sometimes discussed compensation, but no definite agreement was ever concluded. The compensation plaintiff desired and expected, however, was an interest in the company once shoe sales were substantial.

The defendants’ first contention on appeal is that the trial court erred in admitting into evidence certain financial information about the defendants. Defendants claim this financial information not only was irrelevant to the case’s contested issues, but was a prejudicial factor in the jury’s consideration of the reasonable value of plaintiff’s services. We agree.

Over defendants’ objections the trial court admitted into evidence the following financial information: (A) The company dividends paid in 1969 to Mars and Meier, the sole stockholders, amounting to $7500; in 1970, $4600. (B) The company’s gross profits for 1969, computed by deducting the cost of goods sold from the gross sales receipts, were $52,538. The net profits for 1969 were $6283. The company’s gross profits for 1970 were $94,580. (C) The company’s retained earnings at the end of 1969 were $16,077; at the end of 1970, $40,531. (D) The initial investments of Mars and Meier in Doro, Ltd., totalled $4912. (E) As of December 31,1970, the fair market value of the company was estimated at approximately $300,000.

We note the general rule is that evidence of the wealth or financial standing of the parties is not ordinarily admissible in contract actions. 22 Am.Jur.2d Damages, § 319 (1965). Missouri has adopted this rule for both contract actions and quantum me-ruit suits. Springli v. Mercantile Trust Co., 33 S.W.2d 311[l-2] (Mo.App.1960). Evidence of the defendants’ financial worth is admissible in an action seeking punitive damages. State ex rel. Kubatzky v. Holt, 483 S.W.2d 799[9] (Mo.App.1972). This is not an action seeking punitive damages but rather an action for compensatory damages.

A quantum meruit suit is grounded on the principle that no one should be unjustly enriched at the expense of another. Cavic v. Missouri Research Laboratories, Inc., 416 S.W.2d 6, 8 (Mo.App.1967). The general rule concerning the measure of recovery in quantum meruit actions for services furnished is as follows:

“The measure of recovery for services furnished or goods received under the doctrine of unjust enrichment, as distinguished from the doctrine of contracts implied in fact, is the value of the actual benefit realized and retained. If there is no special agreement as to the amount of compensation and the services are not intended to be gratuitous, the law implies a promise by the employer to pay what services reasonably are worth, which is determined largely by the nature of the work and the customary rate of pay for such work in the community and at the time the work was performed.” 66 Am. Jur.2d, Restitution and Implied Contracts, § 28 (1973). (Emphasis added).

This measure of recovery in quantum me-ruit suits for services was applied in the case of Cavic v. Missouri Research Laboratories, Inc., supra. There a sales representative brought a quantum meruit action for a sum he claimed was due him as commissions on orders he obtained for the defendant company. The court said the sales representative could recover the price usually and customarily paid for his services or like services at the time and in the locality where the services were rendered.

Plaintiff does not agree with this method of computing the reasonable value of the services. Plaintiff maintains that the benefit received by the defendants is a principal factor to be considered by the jury in arriving at a determination of the reasonable value of the services rendered by the plaintiff. Thus the plaintiff contends the financial information about the defendants is a valuable indication of the benefits they received from the plaintiff’s efforts. To support this idea, plaintiff claims he was a prime mover in the shoe sales program; that the shoe sales were always a principal component of the company’s total sales; that in 1969 and 1970 the shoe sales actually accounted for all of the company’s gross sales receipts. As plaintiff notes in his appellate brief: “To determine benefit, it is obviously necessary to know where the growth began and where it ended.”

We believe the measure of recovery described in Cavic, with its emphasis on the nature of plaintiff’s services and the customary community charges for the services, is the proper approach. Having the reasonable value of plaintiff’s services dependent on the financial benefits of the defendants is not the Missouri law.

In his brief plaintiff correctly notes: “It is patently absurd to say that the results of a sales program has no relevance to the question of what was the reasonable value of the services of the sales manager. Services performed in setting up and administering a sales program which was a flop are obviously of far less value than sales services performed which result in the success which was enjoyed by the defendants herein.” The trial court admitted into evidence the yearly sales totals for the shoes, and the defendants do not dispute this on appeal.

The shoe sales figures are important for the jury’s determination of the nature of plaintiff’s services and the computation of the customary rate of compensation for such work in the community. But the other financial information about the defendants should not have been admitted because it distracts the jury from its careful scrutiny of the plaintiff’s services and the evaluation to be placed on these services. If the defendants in this case had sustained losses for the 1966-70 period, despite the success of the shoe sales, would plaintiff have introduced the financial information? And if the defendants had attempted to introduce evidence of these losses, we are sure plaintiff would have promptly objected to its admission, arguing that his sales efforts were successful despite the defendants’ losses and his quantum meruit recovery should not be diminished due to the losses.

The plaintiff’s contention that the defendants’ financial information is relevant to the evaluation of his services directly conflicts with his handling of his expert witnesses. The plaintiff presented two expert witnesses to establish the reasonable value of his efforts. In counsel’s long hypothetical questions to these experts, the only financial data given concerning the defendants was the increase in shoe sales during the years plaintiff worked for the defendants. The remaining information given to the expert witnesses detailed the nature of plaintiff’s sales and promotional services.

Even assuming arguendo that the defendants’ financial benefits could be a principal factor in determining the value of plaintiff’s services, we still believe this evidence would be inadmissible. The plaintiff’s evidence tended to establish a definite correlation between his efforts and the yearly shoe sales figures. But the evidence suggested only a tenuous and speculative link between plaintiff’s efforts and the financial information about defendants’ profits, retained earnings, dividends, fair market value and initial investment. Defendants’ counsel properly maintains that such financial information is dependent not only on sales, but also on such factors as “the product being sold, costs of goods, expenses of making sales, cost of borrowed money, competitive market conditions, overhead, knowledge of importing, terms of payment to manufacturers, judgment in extending credit, distribution and the performance of Dave Mars and other employees.” Even the plaintiff’s evidence showed that he was involved only in the sales and promotion aspects of the business; that Mars handled the office work; that Meier was the financier.

We have found three Missouri cases that are somewhat analogous to the instant case. In Rolla Lumber Co. v. Evans, 482 S.W.2d 519 (Mo.App.1972), the plaintiff corporation brought a quantum meruit action to recover the reasonable value of materials furnished. The court first noted plaintiff had produced no evidence that its charges were fair and reasonable. The court added that it “had not overlooked the novel and ingenious argument of plaintiff’s counsel, wholly unsupported by cited authority, that the fair and reasonable value of the materials sold and billed to Gardner should be ‘that value or amount by which the defendants’ property has been increased because of the application of the material.’ ”

In Hardy v. Bruns, 384 S.W.2d 865 (Mo.App.1964), the plaintiff sought to recover for work performed under an oral agreement by defendant to pay for such work at a specified hourly rate. The plaintiff introduced the defendants’ bank book and evidence of his bank deposits. The court reversed, noting (at p. 867):

“The fundamental issues in dispute were the number of hours plaintiff had labored for defendant, and whether defendant had paid her for the time she worked. Plaintiff seeks to justify the admission of such evidence on the ground that it ‘ . . . was relevant and corroborative of plaintiff’s efforts and work on the farm for the defendant, and which contributed to defendant’s earnings. . ’ Implicit in that argument is the highly dubious assumption that two persons working on a farm will necessarily and invariably produce more income therefrom than one. But even under plaintiff’s theory of relevancy the burden was on her to establish that the deposits made were derived from defendant’s farming operation before such evidence was admissible. Admittedly, no such foundation was laid. Hence the evidence as to defendant’s bank book and deposits did not tend to prove or disprove the number of hours plaintiff had worked, or whether she had been paid, and was therefore irrelevant and prejudicial.” (Emphasis added).

Likewise, in the instant case the plaintiff has failed to establish to what extent, if any, his claimed sales and promotional efforts were responsible for the defendants’ financial condition. Thus the financial information does not tend to prove or disprove the reasonable value of plaintiff’s services.

The plaintiff in Springli v. Mercantile Trust Co., 333 S.W.2d 311 (Mo.App.1960), sought to recover for services rendered defendant’s testator. The suit was in two counts. Count I sought recovery on an express contract. Count II was in quantum meruit for the reasonable value of services rendered. This court upheld the trial court’s refusal to admit into evidence the dollar value of decedent’s estate, noting (at p. 315): “Under Count II of the petition, if plaintiff was entitled to recover, he was only entitled to recover the reasonable value of the services performed. The measure of this recovery should be the worth recognized by the public generally, without reference to the pecuniary standing of the parties.”

Plaintiff contends that evidence of the net and gross worth of the benefited party in claims for compensation for reasonable value of services performed is admissible. We disagree. Plaintiff relies on four cases. We find the cases distinguishable.

In Anderson v. Caldwell, 242 Mo. 201, 146 S.W. 444 (1912), plaintiff brought a quantum meruit suit to recover the value of materials and labor furnished defendants in the construction of buildings for the 1904 St. Louis World’s Pair. The court first broadly noted that in a quantum meruit suit “the defendant should respond to the extent of the benefits received.” But the court later defined the measure of recovery as the “reasonable value of such work and labor done.”

Plaintiff cites State ex rel. Missouri Broadcasting Co. v. O'Malley, 344 Mo. 639, 127 S.W.2d 684 (Mo. banc 1939). In that case plaintiff had sued relator on both contract and quantum meruit counts. The Supreme Court upheld the defendant trial court’s issuance of a pre-trial order to permit plaintiff to inspect relator’s cash books, journals and general ledger for the period of plaintiff’s employment.

We first note that OMalley concerns a pre-trial discovery motion to inspect certain books and records and did not involve the admissibility of evidence at trial. Nor did the court in OMalley specify just what information could be gleaned from the corporate records and introduced at the trial. Only relevant financial information can be used at a trial to prove reasonable value of services.

We have determined that the defendants’ financial information in this case (1) is not relevant to the Missouri method of computing plaintiff’s quantum meruit recovery and (2) is not probatively linked to the plaintiff’s sales and promotional efforts.

Wandling v. Broaddus, 10 S.W.2d 651[6] (Mo.1928), was a quantum meruit suit against an estate to recover the reasonable value of services rendered the decedent. After the defendants had introduced a copy of the will that left plaintiff nothing, the plaintiff was permitted to introduce into evidence the inventory and appraisement of the decedent’s estate because it tended to show that decedent at the time she promised to pay had property with which to pay.

Plaintiff’s last case is Savage v. Michalon's Estate, 176 S.W.2d 626[6] (Mo.App.1944). A plaintiff farmhand brought a quantum meruit suit for services rendered the decedent. The court permitted plaintiff to introduce the inventories and appraisement of the estate for two very limited purposes: (1) to corroborate plaintiff’s evidence concerning a future settlement by showing that decedent had money with which to make such settlement which decedent promised he would make when the plaintiff grew old; and (2) to settle a dispute about the size of the farm and the necessity for services to operate it.

To summarize, we believe the trial court committed prejudicial error when it admitted the financial information concerning defendants. This information was not relevant to the Missouri method of determining the reasonable value of plaintiff’s services in a quantum meruit suit. Nor was there a probative link between plaintiff’s efforts and the resultant financial condition of the defendants. With this financial evidence before it, the jury could have easily been misled into awarding plaintiff an excessive amount of damages.

The defendants’ second contention on appeal is related to their first: “It was prejudicial error for the court to permit plaintiff to comment upon, inquire and introduce evidence concerning an exchange by defendants, Mars and Meier, of the stock of Doro, Ltd., for stock of Medalist Corporation, in that such comment, inquiry and evidence, coupled with references to net worth, dividends, profits, investment and retained earnings of Doro, Ltd., were all calculated to prejudice and bias the jury.” In their brief defendants contend the.plaintiff’s strategy was “to focus attention on the Medalist stock exchange and persuade the jury out of prejudice and sympathy to give plaintiff a large verdict based on the alleged sums of money involved in that exchange.”

Although the trial court often sustained defendants’ objections to the admission of this stock exchange evidence, the defendants specifically note four instances where the trial court permitted such evidence. We will examine these instances to see whether the evidence should have been admitted and whether the defendants’ case was thereby prejudiced.

During his opening statement the plaintiff’s attorney stated:

“We expect the evidence will be that in fact an agreement was made verbally right around February 15, 1971, within a month and a half that they had sent Sam out the door, to transfer those 500 shares of Doro stock for which they invested $4912 into Medalist Industries, a company which was being traded on the American Stock Exchange, which was for 32,500 shares of Medalist Industries stock that had a value of $16⅛ per share, and the total value of $524,062.50 as an investment.”

We believe the trial court committed prejudicial error when it overruled defendants’ objection to this portion of the plaintiff’s opening statement. The stock transfer evidence—especially the dollar amounts and the number and evaluation of the stock shares—was highly prejudicial to the defendants. Our reasoning is the same as in our discussion of the defendants’ first point on appeal. The inherent prejudicial impact of the stock transfer evidence was enhanced by its introduction at the very beginning of the trial, before the parties had presented any evidence.

We are aware that counsel is permitted considerable latitude in making his opening statement. Zabol v. Lasky, 498 S.W.2d 550 (Mo.1973). However, even though comments made by counsel in opening statements are not evidence, counsel is not permitted to relate to the jury prejudicial matters which are not admissible as evidence.

The defendants also complain about two references during the trial to the value of the stock exchange. On direct examination the plaintiff related that Mars had once told him that Medalist had made a $600,000 offer to purchase Doro, Ltd. The trial judge properly sustained the defendants’ objection, ordered the answer stricken, and instructed the jury to disregard it.

Shortly thereafter, during the same line of questioning, plaintiff was asked whether he had ever asked Mars what his percentage would be if the company were sold. Plaintiff replied: “Well, while talking about this sale to Medalist I had mentioned something about the ten percent that we had been discussing, and he remarked to me ‘It would be like giving you $60,000.’ And I said, ‘That’s right.’ ” Defendants did not object to this answer, and so the answer was before the court below and the jury for whatever weight it was deemed entitled. Rooney v. Lloyd Metal Products Co., 458 S.W.2d 561[1] (Mo.1970).

Finally, defendants complain about the facts elicited during the cross-examinations of Mars and Meier. Earlier the trial court had not permitted into evidence Plaintiff’s Exhibit # 37, a document that contained the details of Medalist’s acquisition of Doro, Ltd. Over defendants’ objections, plaintiff highlighted certain aspects of the document, especially a provision wherein Mars and Meier had agreed to indemnify Medalist for any obligations (presumably including the plaintiff’s) incurred by Doro, Ltd., but not listed in the document.

We believe the trial court correctly permitted the evidence of the indemnity clause, for this evidence was obviously intended to show Mars’s and Meier’s interest in not having a judgment rendered against the corporate defendant. Proof of a witness’s or party’s bias or prejudice in favor of or against any of the parties to an action may properly be shown and considered as bearing upon the credit which should be accorded the testimony of a witness. State v. Williams, 513 S.W.2d 718[7] (Mo.App.1974); State v. Curry, 372 S.W.2d 1[7] (Mo.1963); State v. McLachlan, 283 S.W.2d 487[1] (Mo.1955). When bias or prejudice is being explored, broad discretion is vested in the trial court as to the extent of the cross examination. Hesse v. Wagner, 475 S.W.2d 55[10] (Mo.1971). Courts have even held that circumstances showing a witness’s or party’s bias and his relation to or feeling toward a party are not irrelevant or immaterial matters (a) even though they have no evidentiary bearing on the issues tendered by the pleadings, Thornton v. Vonallmon, 456 S.W.2d 795[2] (Mo.App.1970) and (b) even though the evidence may have a prejudicial effect on the jury. State v. McClure, 504 S.W.2d 664[⅜ (Mo.App.1974).

We believe the cross examination of Mars and Meier concerning their indemnity agreement with Medalist was proper, for it tended to show their interest in a jury verdict for co-defendant Doro, Ltd.

Defendants next contend the trial court erred in denying their motion for a directed verdict because there was a failure of proof necessary to support the opinions of plaintiff’s expert witnesses as to the value of plaintiff’s services. The defendants correctly note that the expert witnesses’ valuations of plaintiff’s services were based on the assumptions that (1) plaintiff developed a unique marketing plan for the shoes and (2) plaintiff was the first to .develop the shoe’s unique features. Defendants contend “the plaintiff’s own testimony fails to support this hypothetical question” and that the defendants’ evidence shows the two underlying assumptions were totally false.

The facts upon which an expert’s opinion is based, like the facts sufficient to support a verdict, must measure up to the legal requirements of substantiality and probative force; and the question of whether such opinion is based on and supported by sufficient facts or evidence to sustain the same is a question of law for the court. Atcheson v. Braniff International Airways, 327 S.W.2d 112[6] (Mo.1959). In this case we recognize that the defendants produced cogent evidence that directly contradicted the plaintiff’s evidence concerning his part in developing and marketing the football shoes. However, we cannot say as a matter of law that the defendants’ evidence nullified the assumptions on which the expert witnesses based their valuations. We decide this point against defendants.

The defendants’ last contention is that the trial court erred in denying the individual defendants’ motion for directed verdict because plaintiff had rendered no services for individual defendants Mars and Meier. Considering the evidence in a light most favorable to the verdict, giving plaintiff the benefit of every reasonable inference supported by the evidence, we believe that while the proof of plaintiff’s services rendered to the individual defendants was not overwhelming, it was sufficient to make a submissible case. Bremen Bank & Trust Co. v. Bogdan, 498 S.W.2d 306 (Mo.App.1973).

The judgment is reversed and the cause remanded for retrial.

WEIER, P. J. and RENDLEN, J., concur.

      . The defendants’ evidence considerably downplayed the nature and extent of the plaintiff’s services. Defendants’ evidence included testimony that: (1) Mars designed and developed the shoe in 1964. (2) The plaintiff was not the first person to recognize the shoe’s safety features, nor was he even the first to sell the shoes directly to local football teams. (3) Mars and his father were solely responsible for planning and preparing all brochures, advertisements. (4) Mars and his father made the key 1967 decision to sell the shoes nationally. (5) Mars was the man who initially contacted prospective sales representatives and then maintained contact after he hired them. (6) Mars compensated plaintiff for his show expenses and also paid him $4200 for his services. (7) By the year 1970, the defendants had a total of 20 sales representatives selling the shoes.


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    Walter GOLDEN et al., Appellants, v. Guy Eugene CHIPMAN, Respondent.
    No. 36701.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Feb. 24, 1976.
    Motion for Rehearing or Transfer Denied April 13, 1976.
    Application to Transfer Denied June 14, 1976.

      Patrick J. Eng, Columbia, for appellants.
    Lewis J. Leonatti, Edwards, Seigfreid, Runge & Hodge, Inc., Mexico, for respondent.
   CLEMENS, Presiding Judge.

The sole issue on this appeal: Did the trial court err in denying plaintiffs’ challenge for cause as to venireman Vernon Duffy on the ground Duffy’s son, a law student, was employed as a law clerk by defense counsel? Astute counsel have presented cogent oral arguments and written briefs, each strongly supporting their adverse contentions.

The action is for wrongful death of plaintiffs’ wife and mother. By a nine to three verdict the jury found for defendant. Venireman Duffy, whom plaintiff had not peremptorily challenged, was the jury foreman.

We relate the pertinent trial court proceedings. In pre-trial conference the court took up several preliminary matters. Plaintiffs’ counsel told the court: “We might raise this problem right now in order to save needless interrogation. One of the jurors, Vernon Duffy, whose son is an employee of Jerry’s, I think certainly he is subject to challenge for cause.” The court responded: “Well, the mere relationship, I do not think would be sufficient grounds for challenge for cause and if that is what is being done . . .” Voir dire followed; the inquiry re venireman Duffy:

“Q. MR. SIMON: [Plaintiffs’ counsel] Mr. Duffy, I would like to ask you, sir, a personal question if I might. Is your son a law student?
A: Yes, he is.
Q: And has he been employed by the firm of Edwards, Seigfreid, Runge & Hodge?
A: Yes.
Q: Is he still employed by the firm at this time?
A: Yes.
Q: Does he live at home or in Columbia?
A: He lives in Columbia.
Q: Let me ask you this: Do you feel that the fact that your son is an employee of that law firm would in any respects influence your decision in this case?
A: Not at all.
Q: Do you feel it would embarrass you to have to bring back a decision against the firm’s client if you feel that the evidence and the law as given to you by Judge Adams called for such a conclusion?
A: Not at all.
Q: Do you feel it would make — in any respect at all make it more difficult for you to decide this case solely on the evidence?
A: No, sir.
Q: You don’t feel that it would affect you at all, is that correct?
A: I don’t even know the nature of his work there, so it would not.
Q: Are you and your son close?
A: I don’t—
Q: Do you see him frequently?
A: Oh, yes. Yes.
Q: And you have not discussed this particular case with him?
A: Not at all, no.”
The critical motion and the court’s ruling:
“MR. VAN MATRE: [Plaintiffs’ counsel] Notwithstanding the answers that Juror Vernon Duffy made, we renew our challenge for cause because we don’t think it is morally possible for the father of a man employed by the defendant’s attorneys’ office to act as a fair and impartial juror and we renew our challenge for cause.
THE COURT: Do you have any comment on that?
MR. SEIGFREID: [Defense counsel] I object to it, Your Honor.
THE COURT: The challenge would be denied.”

We note parenthetically that plaintiffs did not pursue their unsuccessful challenge to venireman Duffy by peremptorily challenging him. Plaintiffs contend, and defendant does not deny, that plaintiffs did not thereby waive their challenge for cause. We agree, since a litigant is entitled to a full panel of qualified jurors before making peremptory challenges. State v. Lovell, 506 S.W.2d 441 (Mo.1974).

Plaintiffs’ sole point on appeal is that the trial court erred in denying their challenge to venireman Duffy for cause “because of his family relationship with defendant’s attorneys of record,” that is, because Mr. Duffy’s son was an employee of defense counsel.

Opposing counsel acknowledge their inability, as we do, to find a Missouri decision on all fours with or closely similar to the problem here. Missouri decisions have ruled many cases concerning challenging jurors for cause, under a multitude of varying circumstances. We will explore these to determine underlying principles, weigh them, and then apply these principles to the present case.

Several categories of challenge-for-cause cases are not pertinent. Ours is not a case where a venireman acknowledged his inability to serve impartially. See Theobald v. St. Louis Transit Co., 191 Mo. 395, 90 S.W. 354[l-4] (1905). To the contrary, venireman Duffy professed impartiality, although his conclusory statements were neither binding on the trial court nor controlling here. Moore v. Midwest Freightways, 266 S.W.2d 578[8-12] (Mo.1954). Other dissimilar juror qualification cases concern veniremen who have concealed pertinent information. Maddox v. Vieth, 368 S.W.2d 725[3-4] (Mo.App.1963). Here, the good faith of venireman Duffy’s answers is unchallenged.

Another broad category of veniremen subject to challenge for cause is based on the personal relationship, close or remote, between a venireman and the litigant upon whose rights he would pass. By § 495.150, RSMo 1969, veniremen are disqualified for cause if they are then clients of a party’s attorney. Learned v. Godfrey, 461 S.W.2d 5 (Mo.1970). In contrast, a venireman’s past employment of a litigant’s attorney does not require disqualification for cause. Blackburn-Ens., Inc. v. Roberts, 379 S.W.2d 630[7] (Mo.App.1964).

Excluding from our consideration the above types of cases where disqualification of a venireman is mandatory, we delve into consideration of general principles and their application to cases where disqualifying a venireman, as here, is discretionary with the trial court and the ultimate appellate decision depends on whether the trial court abused that discretion.

Plaintiffs argue their right to twelve impartial jurors. Defendant agrees, but contends impartiality is to be determined by the trial court. We are not faced with a novel question of law but with the application of longstanding principles to a precise factual situation. State v. Land, 478 S.W.2d 290 (Mo.1972).

The basic principle of jurors’ impartiality is tersely stated in the oft-quoted case of Theobald, supra: “Under our system of jurisprudence there is no feature of a trial more important and more necessary to the pure and just administration of the law than that every litigant shall be accorded a fair trial before a jury of his countrymen, who enter upon the trial totally disinterested and wholly unprejudiced.” Plaintiffs have briefed several cases applying that basic principle. Each one also expresses defendant’s contention that a venireman’s impartiality is to be determined by the trial court.

In the early case of Glasgow v. Metropolitan St. Ry. Co., 191 Mo. 347, 89 S.W. 915[1] (1905), a venireman worked for a corporation allied with the defendant and upon his request the trial court excused him, over defendant’s objections. In upholding the trial court’s ruling, the court said: the authority of the court in such a case is not limited to a decision of the strict legal question of the qualifications of a juror. It has a discretion to be exercised in the administration of justice in which it may excuse a juror, who although not legally disqualified, yet whose sitting is reasonably liable to fill either party with an apprehension of unfairness. A court in the exercise of that discretion will not attempt to allay an unreasonable suspicion, but when it can remove a cause of reasonable apprehension on the one side without injuring in any degree the rights of the other or giving the other cause for a similar reasonable apprehension, it is the right and duty of the court to do so, and when in that respect the court exercises a sound judicial discretion its ruling will not be disturbed.” We note the court declared a limitation on that principle: “The trial court stands closer to the source of justice than any other tribunal; upon the trial judge the heaviest responsibility rests, because much of the administration of justice depends on the wise exercise of a discretion that the law has imposed in him alone. We are satisfied that the court exercised its discretion wisely in excusing this juror.”

Plaintiffs also rely on Moss v. Mindlin’s, Inc., 301 S.W.2d 761[9-11] (Mo.1957). In that case two veniremen had suffered injuries akin to plaintiff’s but the trial court denied defendant’s challenges. In upholding this the Supreme Court ruled: “We recognize that, as stressed by instant defendant, a venireman is not the judge of his own qualifications and that the trial court in the exercise of its discretion should resolve a substantial doubt as to the venireman’s qualifications against the prospective juror.” The court then explained the word “substantial,” saying: “However, it is equally true that, on review by an appellate court, unless there is some fact which, we reasonably can say, in and of itself, necessarily showed prejudice, or unless there is an admission of prejudice, past or present, or unless there is something in the demean- or of the venireman which, despite his actual words, discloses the existence of prejudice in fact, we should not convict the trial court of an abuse of discretion in overruling a challenge for cause.”

Plaintiffs’ contention, and its limitation, is summarized and explained in our case of Leavitt v. St. Louis Public Service Company, 340 S.W.2d 131[5-7] (Mo.App.1960). There, two veniremen professed impartiality despite injuries in previous motor vehicle collisions. The trial court denied defendant’s challenges for cause. Writing for this court Judge Doemer wrote in affirming: “The exercise by a trial court of its discretion in that regard [sustaining a challenge for cause] should be encouraged. For with ‘ * * * the world absolutely filled with competent, unbiased, and unprejudiced jurors, * * *.’ State v. Mace, 262 Mo. 143, 155, 170 S.W. 1105, 1109, it would be prudent to resolve a substantial doubt as to a venireman’s competency against him, Moss v. Mindlin’s, Inc., Mo., 301 S.W.2d 761, so as to excuse any juror whose sitting is reasonably liable to fill either party with an apprehension of unfairness. Glasgow v. Metropolitan Street Railway Co., 191 Mo. 347, 89 S.W. 915. However, the question before us is not one of prudence or circumspection. What we are called upon to determine is whether the court abused its discretion in overruling the challenges and thereby committed reversible error. What the defendant contends, in effect, is that regardless of the fact that no bias or prejudice on the part of the venireman was shown, we should hold that such incompetency should be conclusively presumed as a matter of law under the circumstances existing in this case. While, as we have pointed out, the appellate courts have almost uniformly approved the action of a trial court in removing a doubtful juror, it is equally true that they have likewise upheld the trial court when it overruled challenges for cause, where no actual bias or prejudice was shown, even though a juror had some business or personal relationship with a party. Kendall v. Prudential Life Insurance Co. of America, [Mo., 327 S.W.2d 174] supra; Grimm v. Gargis, Mo., 303 S.W.2d 43. These and numerous other Missouri cases state the rule to be that the trial court is and should be vested with broad discretion in determining the qualifications of veniremen to sit as jurors and that its rulings should not be disturbed unless they are clearly and manifestly against the evidence, (citing cases.)”

In his brief defendant stresses the discretionary role of the trial court expressed in plaintiffs’ cited cases, Glasgow, Moss and Leavitt, supra.

In exercising this discretion the trial court is not bound by a venireman’s conclusions as to his own fitness. The trial court’s decision “should rest upon facts stated by the juror with reference to his state of mind.” State v. Lovell, supra. There is no abuse of the trial court’s discretion where “the sense of the [voir dire] examination is that the juror would base his verdict solely on the evidence.” State v. Green, 511 S.W.2d 867[15] (Mo.1974); State v. Wraggs, 512 S.W.2d 257[2, 3] (Mo.App.1974). Since this is the law, and the sense of venireman Duffy’s voir dire did not show his state of mind precluded an impartial verdict, plaintiffs’ only valid contention is that venireman Duffy’s indirect relationship with the defendant, that is, his son being employed by defendant’s attorneys, ipso facto rendered him unfit to serve as an impartial juror.

Defendant cites the early case of State v. Jones, 64 Mo. 391[8] (1877). Without citing authority or reason the court ruled: “the fact that LaForge was the father-in-law of the prosecuting attorney did not render him incompetent as a juror.”

More pertinent here is the opinion of our supreme court in State v. Land, 478 S.W.2d 290[1, 2] (Mo.1972). Acknowledging the appellate court rule in reviewing a trial court’s ruling on a venireman’s qualification, the court held: “With a cross-section of society appearing as veniremen, an area is involved that not only cannot but should not be standardized. Recognition of this fact requires that there continue to be a broad discretion in the trial court; and that the exercise of such discretion should not be disturbed unless found to have been abused. In addition, doubts should be resolved in favor of the finding of the trial court. State v. Wilson, Mo., 436 S.W.2d 633, 637.”

We have here for review a decision by a seasoned jurist, immersed in the atmosphere of the trial and able to assess the character and attitudes of persons selected from his rural community for jury service. He was called upon to decide whether venireman Duffy was able to serve impartially despite the fact that his son was associated with the lawyers who had been employed by defendant. The distinction between a qualified and an unqualified venireman is one of degree. As said in Billmeyer v. St. Louis Transit Co., 108 Mo.App. 6, 82 S.W. 536 (1904): “. . . the prevalent test is the one stated by Chief Justice Marshall in Burr’s case: ‘That light impressions, which may fairly be supposed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but that those strong and deep impressions, which may close the mind against the testimony that may be offered in opposition to them, which will combat that testimony and resist its force, do constitute a sufficient objection to him.’ ” (Our emphasis.)

There were four links in this chain of personal relationship: venireman Duffy, his son, his son’s employer, and the defendant represented by that employer. The trial court apparently determined that at most venireman Duffy had a “light impression” which would yield to the law and evidence, and not a “strong and deep impression” which would close his mind. To reverse the trial court we must find an abuse of discretion, that is, that the court’s ruling “. is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” State v. Edmonds, 468 S.W.2d 685[l-5] (Mo.App.1971). Bearing in mind that “doubts should be resolved in favor of the trial court” (State v. Land, supra), we decline to rule reversible error in denying plaintiffs’ challenge to venireman Duffy.

In reaching our conclusion we have fully considered the facially contrary case of State v. Holliman, 529 S.W.2d 932 (Mo.App.1975). It is distinguishable. There, a murder conviction was reversed and remanded for the trial court’s failure to sustain defendant’s challenge for cause of venireman Wallace. The victim was John Summers, a police officer. Challenged venireman Wallace knew the slain policeman, was a friend of the policeman’s father, had a son who was a policeman in the same district as the slain policeman and had discussed the case with his son. The trial court declared, erroneously, that it was precluded from sustaining defendant’s challenge because venireman Wallace had concluded he could give defendant a fair trial. In reversing the conviction, two of the three judges separately concurred, holding no one of the four stated factors warranted a challenge for cause but did so when considered collectively. We hold that the case is distinguishable from and tends to support our decision which concerned only one challenged factor — venireman Duffy being the father of a clerk employed by defense counsel’s law firm.

Judgment affirmed.

KELLY and STEWART, JJ., concur.

PER CURIAM:

The Court does not intend this opinion to be construed as approval of summary denial of challenges to jurors’ qualifications. The juror in question in this case could reasonably fill the plaintiffs with an apprehension of unfairness. Our system of justice should be free of any such apprehension. Prudence would dictate resolving any substantial doubt of a juror’s competence against seating the juror.

      . For cases from other states see Annotation, 72 A.L.R.2d 673 et seq., Professional or business relations between proposed juror and attorney as ground for challenge for cause. Cases annotated at § 7[6], Indirect relations, reveal none in which a venireman’s kinship to an employee of a litigant’s trial counsel was or was not adequate grounds for disqualifying the venireman.

      . This statement was dicta.


text:
    MISSOURIANS FOR HONEST ELECTIONS a corporation, et al., Plaintiffs-Appellants, v. MISSOURI ELECTIONS COMMISSION et al., Defendants-Respondents.
    No. 37875.
    Missouri Court of Appeals, St. Louis District, En Banc.
    Feb. 26, 1976.
    Motion for Rehearing or Transfer Denied April 13, 1976.
    Application to Transfer Denied June 14, 1976.

      Lewis C. Green, St. Louis, for plaintiffs-appellants.
    John W. Inglish, Jefferson City, for defendants-respondents.
   SMITH, Chief Judge, and SIMEONE, Presiding Judge.

This is an appeal by the appellants-Missourians for Honest Elections and two individuals from an order of the circuit court of St. Louis County entered on February 6, 1976, denying relief which sought to review a rule of the Missouri Elections Commission under the Administrative Procedure Act. § 536.050, RSMo 1969.

This appeal, in which the parties do not raise any constitutional issues, questions the validity of Rule 33 of the Missouri Elections Commission, which requires that a candidate for public office in the state file a report concerning economic disclosure even though such candidate has not or does not intend to expend more than $500 on a campaign seeking public office. The appeal questions the ruling of the court below (1) in upholding the validity of Rule 33 because it is contrary to the “language, purpose and legislative history of the Campaign Finance Reform Act,” and (2) ”‘in ruling that Section 8 of the Act does not authorize the exemption of a candidate for public office who, neither receives nor expends more than $500 on his campaign, from filing any portion of the report of ‘contributions received and expenditures made’ required by Section 7.1 of the Act.”

The facts are not difficult but the legal issues presented are of great significance.

During the 1974 Session of the General Assembly “campaign reform” legislation was introduced and debated. No campaign law was, however, passed. After the General Assembly failed to pass a campaign reform act, an ad hoc group of legislators and other interested persons decided to draft and circulate an initiative petition to fill the campaign reform vacuum. In due course, the group formed itself into an organization known as the “Missourians for Honest Elections” (MHE). The group assigned a small number of persons to draft an initiative measure in the words of the appellants “in an extremely short period” and took as their starting point the conference committee substitute which was approved by the House. The required signatures were obtained. MHE spearheaded the citizen’s effort to persuade the voters to approve the proposition. Some 400,000 brochures were distributed, press releases were sent, various organizations participated, and finally on November 5, 1974 the Proposition No. 1 was overwhelmingly adopted by the people of Missouri and the Campaign Finance Reform Act became effective January 1, 1975.

As stated, the drafters of the proposition took as their starting point the legislative proposal. The proposed legislation did not contain the specific provisions of subsections (4), (5) and (6) of Section 7.1, but only contained subsections (1), (2) and (3). These three subsections — (4), (5) and (6) — were added by the drafters of Proposition No. 1 after the proposed legislation failed. These additional clauses were added “in an effort to ferret out 'hidden’ campaign contributions.”

During the campaign differing interpretations of the Act were noted by the proponents and opponents. The differing interpretations were “hotly debated.” But the Act was passed and became law.

After the Act became law the Missouri Elections Commission adopted Rule 33 on December 12, 1975, which held that the reporting of exemptions available to candidates meeting certain requirements would not extend to economic disclosures of candidates. Plaintiffs then sought declaratory and injunctive relief in the court below, alleging that Rule 33 is invalid and in violation of the Act as adopted by the people. The trial court denied relief, and plaintiffs appeal to this court.

Appellants urge us to reverse the trial court because (1) Section 8 of the Act on its face exempts “small candidates” from “all” reporting provisions of the Act, (2) Rule 33 would be destructive of the legislative purpose in that the “small candidate” who does not receive or expend more than $500.00 is not within the “primary target” area of the legislation, which area is designed only to “curb the abuses of ‘big money’ in election campaigns,” (3) “the ‘legislative history’ of the campaign for adoption of the initiative proposition demonstrates that the people intended that a candidate who receives or spends not more than $500 should be exempt from all reporting requirements of the Act” (emphasis added); and (4) the draftsmen of the initiative proposition clearly intended that “small candidates” should be exempt from the reporting requirements of Section 7 “in their entirety.”

Appellants vigorously urge us to give the Act, which reforms the political process by the initiative, “sympathetic reception” because the exercise of the initiative is one of the most fundamental rights of the people. They argue that if Rule 33 is to be upheld it would be destructive of the legislative purpose because the law was not intended to apply to these minor offices, and would defeat the purpose of the exemption and lead to absurd results. In sum, they contend that the “record is uncontroverted. The League of Women Voters, Common Cause, numerous church organizations, and many other organizations and 78% of the voters, relied on the assurances of the proponents repeatedly reported to them by the media, and brought to them by the campaign literature.” Hence, this was the intent of the voters and such intent is persuasive in interpreting the provisions of the Act.

The respondents, on the other hand, contend that the Rule is valid and entitled to great weight and if the Act is ambiguous and the governmental agency charged with its administration and enforcement interprets it, that interpretation is entitled to “consideration and the highest respect” from the courts.

The only issue confronting us is whether Rule 33 is valid. Or, put another way, the only issue confronting us is whether a candidate for public office is required to make economic disclosure as provided in Section 7.1, subsections (4), (5) and (6) of the Act, whether or not the candidate receives or expends more than $500 in the aggregate for any election, or whether such candidates are, under Section 8, exempt from all disclosures under Section 7.1.

The scope of our review is governed by two rules. Rule 100.07 dealing with administrative review allows us to determine whether the action of the agency is in excess of its statutory authority or jurisdiction or is unauthorized by law. Rule 73.01 establishes our review in court-tried cases and warrants our determination of the case upon both the law and the evidence. Since there was no testimony, only documentary evidence, we are not limited by the usual deference on credibility. Additionally, the facts are undisputed and both the agency determination and that of the trial court are based upon a determination of the legal meaning of the basic statute. The powers of the Commission are set forth in Section 13 of the Act. The regulations made by the Commission must be consistent with the provisions of the Act. And under Rule 84.14, we should give such judgment as the court ought to give. We, therefore, examine Rule 33 in that context.

We start with the proposition that the Commission cannot by rule change the substantive requirements of the law. If, therefore, Section 8 does not provide an exemption from financial disclosure required in Section 7.1, subsections (4), (5) and (6) for candidates receiving or expending less than $500 for any election, the judgment of the trial court upholding the validity of Rule 33 must be affirmed. We do not find such an exemption.

Section 8 expressly refers to “The provisions of this act regarding the reporting of campaign contributions and expenditures .” Section 2(7) defines “contributions” or “expenditures” as “any advance, conveyance, deposit, distribution, transfer of funds, payment, gift, pledge, or subscription of money or anything of value, in support of or in opposition to any candidate or political committee . . . .” (Emphasis supplied).

Section 7.1, subsections (1), (2) and (3) require the reporting of items specifically referred to as “contributions” or “expenditures.” Section 7.1, subsections (4), (5) and (6) require the reporting of financial information which does not necessarily meet the definition of “contribution” or “expenditure” in Section 2(7). While the general reporting language refers to “contributions” and “expenditures,” the specific information required in (4), (5) and (6) goes beyond those terms. As noted, the exemption provided by Section 8 is from “the reporting of campaign contributions and expenditures.” It gives no exemption beyond those items, and we cannot by judicial fiat create an additional exemption where one does not exist.

Plaintiffs have asserted that the terms “contribution” and “expenditure” encompass all of the information required to be reported under Section 7.1, subsections (1) through (6). Those two terms, in addition to being specifically defined, are used extensively throughout the Act. To en-graft such a definition upon those words would result in absurdity. Two instances will suffice. Section 2(6) defines a “Candidate” and provides that he is “deemed to seek nomination or election when he first: (a) Receives contributions or makes expenditures . . . Section 7.1(5) and (6) requires a listing of all income. If income is a “contribution,” then presumptively every working man, woman and child in the state is a “candidate” subject to the reporting and other provisions of the law. Under Section 4, subsection (5), no labor organization, bank, trust company or corporation wherever organized can “directly or indirectly, make a contribution or expenditure in connection with any primary, general, or special election in support or of in opposition to any candidate . . . .” If income is a “contribution,” then no corporation can pay a dividend to a stockholder running for office or employ a candidate running for office or his spouse or minor children. No bank could pay interest to a depositor running for office. And it must be remembered that the Act applies to all candidates for public office including school boards, municipal offices and a myriad of other offices, many part-time and some without pay. Section 2, subsection (5).

We also must consider that the requirements of reporting contained in (4) (5) and (6) were intended to have a remedial purpose. Plaintiffs contend that purpose was to “ferret out hidden contributions.” But, if “contributions and expenditures” encompass all 6 subparagraphs of Section 7.1 then the financial disclosure provisions serve little or no purpose at all. The act requires those contributions received and expenditures made “by the candidate in endeavoring to secure his nomination or election” be reported. “Hidden contributions” are required to be disclosed under (1), (2) and (3). Subparagraphs (4), (5) and (6) serve to ferret them out only if the candidate must report the items specified therein. But, under plaintiff’s theory, the candidate must report those items only if he concludes they were received “in endeavoring to secure his nomination or election” in which case he must report them under (1), (2) and (3). Such a construction makes (4), (5) and (6) meaningless. An interpretation which would make portions of the Act an absurdity and render other parts meaningless should not be made.

While the plaintiffs state that the proposition was not intended to reach “conflicts of interest” but only “campaign financing” the ballot language does not make that apparent. It read: “Provides for a new campaign financing and election law to replace portions of the present corrupt practices act; limits contributions and expenditures in elections for public office; requires reporting of such contributions and expenditures; requires disclosure of economic interests of a candidate and his family, and gifts and income received by a candidate or his family; creates a bi-partisan election commission to administer the act; provides penalties for violations.” (Emphasis supplied).

It is, of course, impossible to determine the precise intention of the electorate on a proposition such as this one. It is at least arguable that the voters believed it advisable that all candidates reveal financial interests which might affect their qualifications for office or their conduct in office. The provisions of the Act draw no distinction between “major” and “minor” offices; the question of exemption is solely in terms of the amount of money expended to run. Some major candidates could run in districts sufficiently “safe” to permit them to qualify for the exemption. Additionally, minor public officials often make decisions on matters involving large amounts of taxpayer money or important local governmental operations. The people may desire to know that a textbook salesman is running for the school board, an insurance broker for city councilman, or a man with an unknown interest in a paving company for mayor. We, therefore, cannot attribute an intent to the voters not ex-pressly contained in the proposition voted on.

The words “contribution” and “expenditure” have a meaning which is consistently employed throughout the Act. We can find nothing that would authorize us to give them a different meaning when used in Section 8. Section 8 exempts the disclosure of “contributions” and “expenditures” as used throughout the Act; it does not exempt “business or investment”, “gifts”, “income”, “salaries”, “fees” or “other income” as those terms are used in Section 7, subsections (4), (5) and (6).

Appellants also argue that Section 8 of the Act exempts the filing of campaign contributions and expenditures and economic disclosure because of various references in Section 8 to exemption from reporting. Section 8 deals with an exemption and uses various terms relating to reporting: (1) “[T]his exemption from reporting does not excuse a candidate or committee from complying with all other requirements of this act”; (2) “If a candidate or political committee desires to be exempt from the reporting provisions of this act, the candidate or the treasurer of the committee shall, not later than thirty days prior to the date of the election, file a notice ... of its intention to be exempt from the reporting provisions and it shall be exempt”; (3) Only one political committee supporting a candidate may elect to be exempted from the reporting provisions of this section, unless the candidate has elected to be exempt from the reporting provisions, in which case no political committee supporting such a candidate may elect the exemption. . . ”; (4) “3. If, after filing the exemption affidavit provided for by this section, the candidate or political committee subsequently determines it does not desire to be exempt from the reporting requirements of this act, . such rejection shall not be filed later than the seventh day prior to the election. The rejection of the exemption shall be accompanied by a full and complete report of all contributions and expenditures, as the candidate or committee would have been required to make under the provisions of Section 9 of this act on the thirtieth day prior to the election, and all other reporting requirements shall be complied with.”

It is true that in two places in Section 8 there are references to an exemption from the “reporting provisions” or “reporting requirements” of the Act, but this exemption must be read in the context of the whole Act, and when read in conjunction with the many other provisions of the Act, the exemption relates to “campaign contributions and expenditures” referred to in numerous other sections and specifically in Section 8.1. When read in context with all other provisions of the Act, we cannot conclude that Section 8 exempts a candidate from economic disclosure required in Section 7.1.

It is apparent to this court that the controversy Detween the parties is the direct result of the addition of Section 7, subsections (4), (5) and (6) to the prior drafts. In doing so, the drafters failed to determine what the effect of those additions would be upon other sections of the statute. But that oversight does not cause the language of the Act to become ambiguous. Whatever ambiguity exists is not in the Act, but in the difference between what the drafters thought they were doing and what was actually done.

Both parties and the trial court found the language of the Act to be ambiguous, and the parties therefore directed substantial attention to the effect to be given and the conclusions to be drawn from the campaign positions of the proponents and opponents of the Proposition. We do not find it necessary to analyze those positions. For it is our conclusion that the language of the Act in this regard is not ambiguous.

Regardless of the pre-election intentions of the drafters of the Act, or the views of individual supporters or opponents of the Proposition, or the explanations of the media, the Proposition and its express language became the law of this state when the overwhelming majority of the voters adopted the Proposition. By that law we are bound. Despite the evidence of the plaintiffs showing an intent that the law was not intended to include “small candidates,” it must be held that once a law has been adopted, whether through legislative enactment or the initiative procedure, and its provisions are express and unambiguous, we are not at liberty to construe the language of an act or the words embodied therein in accordance with the intentions of its supporters or opponents. The function of the courts is to enforce the law according to its terms.

Statements and representations made before a vote on a proposition are not conclusive upon the courts. As stated in St. Louis County v. State Highway Commission, 409 S.W.2d 149, 152 (Mo.1966):

“[I]t has been specifically held that statements and representations made before an election held to vote on a constitutional amendment . . . are neither conclusive nor persuasive evidence on the courts when called on to construe a particular proposition adopted. This principle would apply to any legislative enactment. . . .”

We do not find Drey v. McNary, 529 S.W.2d 403 (Mo.banc 1975) to authorize a court to ignore the express language of an initiative proposal and find a voter intent not expressed in the language of the proposition. That case is factually quite different from this.

While the rules of statutory construction are well known, in ascertaining the meaning of a law, we must look to the express language of the Act irrespective of what was intended. The rational meaning of the express language of the Act must be given effect. The primary rule of statutory construction is to seek and ascertain the intent of the lawmaker, but this intent is ascertained from the words used. We have no right to read into an act an intent contrary to the phraseology. City of St. Louis v. Crowe, 376 S.W.2d 185, 190 (Mo.1964); State ex rel. Dravo Corporation v. Spradling, 515 S.W.2d 512, 517 (Mo.1974); Richards v. Stuckenberg, 478 S.W.2d 405, 408 (Mo.App.1972); see also Note, When Extrinsic Aids Will be Used-The Plain Meaning Rule, 1952 Wash.U.L.Q. 267; 2A Sutherland, Statutory Construction, § 4601 (4th ed. 1973); see cases collected in 26 Mo. Digest, Statutes, Key No. 181 (1953).

The function of the courts is not to change the directions and requirements embodied in the law as adopted by the people.

Certainly it is within the power of the people to prescribe informational standards and economic disclosure qualifications relative to seeking or holding public office. Fritz v. Gorton, 83 Wash.2d 275, 517 P.2d 911, 927 (banc 1974). Several states have now upheld “campaign disclosure laws.” County of Nevada v. MacMillen, 11 Cal.3d 662, 114 Cal.Rptr. 345, 522 P.2d 1345 (banc 1974); Montgomery County v. Walsh, 274 Md. 502, 336 A.2d 97 (1975); Fritz v. Gorton, supra; Illinois State Employees Association v. Walker, 57 Ill.2d 512, 315 N.E.2d 9 (1974).

If certain provisions of the Act are regarded as burdensome, there are proper means and methods to correct such hardships. But until changed by appropriate methods, however sympathetic we are with the position of the plaintiffs, we uphold the economic disclosure provisions embodied in Section 7, subsections (4), (5) and (6) and hold that the trial court did not err in upholding the validity of Rule 33. We must conclude, therefore, that the Act does not exempt a candidate for public office from the economic disclosure provisions embodied in Section 7.1(4), (5) and (6).

The judgment is affirmed.

CLEMENS, KELLY, McMILLIAN and GUNN, JJ., concur.

      . Robert J. Cook is a candidate for the office of Alderman in Brentwood, an office to which he has been elected four terms. He states that the Rule which requires him to list his sources of income is “burdensome” and requires him to “disclose personal information which if disclosed, would subject me and my family to undue and unnecessary public scrutiny.”
      Mr. Paul C. Schwarz has been a member of the Lindberg School District board six times having served a total of 18 years. He has withdrawn as a candidate this year. He states that he is a taxidermist and the Rule requiring him to list his sources of income would require a list of each client who paid him $500. This, he says, would subject him and his family and associates to “undue and unnecessary public scrutiny.” It would also subject the clients to public disclosure.

      . The League of Women Voters requested and was granted leave to file a brief as amicus curiae.

      . “Rule Number 33
      Adopted December 12, 1975
      A Rule determining that the reporting exemption available to candidates meeting certain qualifications as provided in section 8.1, does not extend to the items of economic disclosure defined in Section 7.1(4), (5), and (6).
      WHEREAS, there has been considerable concern expressed by citizens, prospective candidates, and election officials from throughout the state relative to the economic disclosure provisions of the Missouri Campaign Finance and Disclosure Law as adopted by the voters on November 5, 1974, as Proposition No. 1; and particularly with regard to the exemption provision contained in Section 8 thereof; and
      WHEREAS, the Missouri Elections Commission recognizes that Section 7.1 of the Campaign Finance and Disclosure Act requires three kinds of reporting by candidates, to-wit: campaign contributions received, campaign expenditures made, and economic disclosure; and
      WHEREAS, the Commission recognizes that Section 8.1 of the Act specifically exempts candidates from reporting their campaign contributions or expenditures, if they meet the $500 or less qualification; and
      WHEREAS, the Commission recognizes that Section 8.1 of the Act does not specifically exempt candidates from economic disclosure; and
      WHEREAS, the Commission recognizes the existence of some ambiguity in Section 8 and other Sections of the Campaign Finance and Disclosure Act; and
      WHEREAS, the Commission has not found such ambiguities to warrant an interpretation of Section 8.1 which would extend the exemption of that Section to financial disclosure;
      NOW, THEREFORE, THE COMMISSION RULES that candidates filing the exemption affidavit provided for in Section 8 1 of the Missouri Campaign Finance and Disclosure Law are exempt from reporting the campaign contributions and expenditures required by Section 7.1(1), (2), and (3), or political committees filing the exemption affidavit provided for in Section 8.1 of the Act are exempt from reporting the campaign contributions and expenditures required by Section 7.2(1), (2), (3), and (4), but candidates are not exempt from reporting the economic information required by Section 7.1(4), (5), and (6).”

      . “Section 8. 1. The provisions of this act regarding the reporting of campaign contributions and expenditures shall not apply to any candidate or to any political committee acting for, on behalf of, or, in favor of any candidate if the candidate or political committee does not in the aggregate receive or expend more than five hundred dollars for any election and files the exemption affidavit required by this subsection. However, this exemption from reporting does not excuse a candidate or committee from complying with all other requirements of this act. If a candidate or political committee desires to be exempt from the reporting provisions of this act, the candidate or the treasurer of the committee shall, not later than thirty days prior to the date of the election, file a notice with the appropriate officer, of its intention to be exempt from the reporting provisions and it shall be exempt. No political committee may file such exemption affidavit without prior written approval of the candidate or candidates it supports. Only one political committee supporting a candidate may elect to be exempted from the reporting provisions of this section, unless the candidate has elected to be exempt from the reporting provisions, in which case no political committee supporting such a candidate may elect the exemption. The appropriate officer shall not accept more than one exemption affidavit per candidate, from either the candidate or from any committee supporting his candidacy.”

      . “Section 7. 1. Every candidate shall file reports in writing with the appropriate officer, at the times prescribed in Section 9. The reports shall be subscribed and sworn to by the candidate before an officer authorized to administer oaths, setting forth in detail all contributions received and expenditures made by the candidate in endeavoring to secure his nomination or election. Each report shall set forth:
      (1) An itemized listing of all contributions received by the candidate including transfers of funds from the candidate’s previous campaign fund, the name and address of each contributor, the amount contributed, and the date the contribution was received; the names and addresses of persons who contributed an aggregate amount of twenty-five dollars or less need not be listed in the report, and instead may be grouped as one item and so identified;
      (2) An itemized listing of all expenditures made by the candidate, the name and address of the person to whom the amounts were paid or promised, the purpose for which the expenditures were made, and the date of the expenditures; and
      (3) An itemized listing of any anonymous contributions which were transmitted to the state treasurer, the amount of each such contribution, and the date transmitted.
      (4) A specific itemized listing of any business or investment in which the candidate or the candidate’s spouse or minor children have a financial interest in excess of one thousand dollars.
      (5) A specific listing of the source, by name and address, of any gifts or income in excess of one hundred dollars received by the candidate or the candidate’s spouse or minor children during the preceding twelve months or the time of the last report, whichever is later.
      (6) A specific listing of the source, by name and address, of any gifts, salaries, fees, or other income which for the twelve month period preceding the filing date individually or in the aggregate exceeds five hundred dollars which has been paid on behalf of or for services rendered by the candidate to any sole proprietorship, partnership or corporation in which the candidate or the candidate’s spouse holds an interest of ten percent or more.”

      . The brief of appellants states that the draftsmen of the initiative petition thought that an effort should be made to require disclosure of what they regarded as “hidden” contributions, such as retainer fees paid to law firms of which legislators are members, or gifts to the candidate or his wife, or the transfer of ownership of investment assets without full consideration. Accordingly, using as their starting point an unsuccessful amendment offered on the floor of the Senate, they added subparagraphs 4, 5, and 6.

      . A better term could have been used, such as “candidates for minor public offices.”

      . The appellants have provided us with an appendix to the brief which includes many newspaper articles and editorials, affidavits and brochures which indicate that the speakers, brochures, pamphlets and the MHE informed the public prior to the vote on Proposition No. 1 (Elections Reform Act) that “Proposition No. 1 will . . . provide exemption for ‘small’ candidates. Although records must be kept, a candidate need not file any report if he files a statement that he and his committee will not spend more than $500.” (Emphasis in original.) These statements and assurances were made in over 400,000 brochures. Various organizations including the League of Women Voters, National Association of Social Workers, Common Cause, and National Education Association so informed the public. Many newspapers so informed the public. In some instances the proposed law was explained from the “pulpit.” The thrust of all the articles, speeches and brochures was to inform the public that the Act exempted “small candidates” from filing any reports if a statement is filed that not more than $500 will be spent on a campaign.
      Appellants’ brief states that the categorical statement that Proposition No. 1 provides exemption for “small candidates” was repeated many times and emphasized in press releases throughout the State.

      . “Appellants in seeking to overturn administrative rules and regulations bear a heavy burden, as we said in King v. Priest (banc), 357 Mo. 68, 206 S.W.2d 547, 552: ‘In view of the broad authority granted respondents by statute, supra, and the admitted adoption of the rule pursuant thereto, the rule must be regarded as prima facie reasonable . . . The burden rested upon appellants to plead facts to show the invalidity of the rule . . . Only in a clear case will the courts interfere on the ground of unreasonableness . . . ’
      “Rules and regulations are to be sustained unless unreasonable and plainly inconsistent with the act, and they are not to be overruled except for weighty reasons. Commissioner of Internal Revenue v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 92 L.Ed. 831; King v. Priest, supra. The burden is upon those challenging the rules to show that they bear no reasonable relationship to the legislative objective. King v. Priest, supra; Ketring v. Sturges (Mo.Sup.), 372 S.W.2d 104. The interpretation and construction of a statute by an agency charged with its administration is entitled to great weight. Federal Trade Commission v. Mandel Brothers, Inc., 359 U.S. 385, 391, 79 S.Ct. 818, 3 L.Ed.2d 893; Ketring v. Sturges, supra; State ex rel. Curators v. Neill (Mo.Sup.), 397 S.W.2d 666, 670. Administrative rules should be reviewed in light of the evil they seek to cure and are not unreasonable merely because they are burdensome. Borden Company v. Thomason, supra.” Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193, 197-198 (Mo.banc 1972).

      . A “candidate” is defined in Section 2, subsection 6 — “ ‘Candidate,’ an individual who seeks nomination or election to public office.

        . “Section 13. The commission is empowered to:
      1.From time to time make, amend, and rescind such rules and regulations as are necessary to carry out the provisions of this act, including rules governing statements and reports and defining any terms whether or not used in this act insofar as the definitions are not inconsistent with the provisions of this act. For the purposes of rules, regulations and forms, the Commission may classify persons and matters within its jurisdiction and may prescribe different requirements for different classes;
      (1) No rule, form or regulation may be made, amended, or rescinded, unless the Commission finds that the action is necessary or appropriate in the public interest and consistent with the purpose fairly intended by the policy and provisions of this act.
      (2) No provision of this act imposing any liability applies to any act done or omitted in good faith in conformity with any rule, regulation or form of the Commission, notwithstanding that the rule, regulation or form may later be amended or rescinded or be determined by judicial or other authority to be invalid for any reason.
      2. Issue, upon request, and publish advisory opinions upon the requirements of this act, based on a real or hypothetical set of circumstances.
      3. File for such injunctive or other equitable relief as may be appropriate, in the Circuit Court of the county in which the violation is occurring or threatened, or in which the candidate resides, upon determining to the Commission’s satisfaction that violations are occurring or threatened.

        4. Commence in its name and prosecute any action under this act in the county where any violation may occur.”

      . Section 2. “(5) ‘Public officer’ or ‘office’, a congressional, statewide, legislative, judicial, county, municipal, school, or other political subdivision office which is filled by a vote of the people.”


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Juan L. SMITH, Appellant, v. James R. SPRADLING, Director, Department of Revenue, and Lee Virt H. Williams Supervisor, Bureau of Driver’s License, Respondent.
    No. 27282.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.
    Motion for Rehearing and/or Transfer Denied March 29, 1976.
    Application to Transfer Denied June 14, 1976.
    Ralph W. Blinston, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Richard L. Wieler, Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment affirming revocation of license to operate a motor vehicle because of refusal to submit to a chemical test. § 564.444, RSMo 1969. The questions are: (1) whether Section 564.444 is vague with respect to the warning to be given the motorist by the arresting officer; (2) whether Section 564.444 is an improper and vague delegation of the power of revocation to the director of revenue; (3) whether the arresting officer had reasonable grounds to believe defendant was driving a motor vehicle while in an intoxicated condition. Affirmed.

Section 564.444, supra, provides:

“1. If a person under arrest refuses upon the request of the arresting officer to submit to a chemical test, which request shall include the reasons of the officer for requesting the person to submit to a test and which also shall inform the person that his license may be revoked upon his refusal to take the test, then none shall be given. In this event, the arresting officer, if he so believes, shall make a sworn report to the director of revenue that he has reasonable grounds to believe that the arrested person was driving a motor vehicle upon the public highways of this state while in an intoxicated condition and that, on his request, refused to submit to the test. Upon receipt of the officer’s report, the director shall revoke the license of the person refusing to take the test for a period of not more than one year; * *
“2. If a person’s license has been revoked because of his refusal to submit to a chemical test, he may request a hearing before a court of record * * *. At the hearing the judge shall determine only:
“(1) Whether or not the person was arrested;
“(2) Whether or not the arresting officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition; and,
“(3) Whether or not the person refused to submit to the test.”

Appellant contends (I) that Section 564.444 is unconstitutionally vague, eontra-dictory and misleading, asserting “that a driver’s license ‘may’ be revoked upon his refusal to take the chemical test; and * * that upon such refusal the director of revenue ‘shall’ revoke the license. Thus the statute requires revocation as a mandatory consequence of refusal to take the chemical test but requires a warning only indicating that there is a possibility of a revocation upon such refusal.” He says that he was thus misled, and that he would have submitted to the test had he known that the statute provided for a mandatory revocation.

A fair reading of the statute shows, contrary to appellant’s contention, that the statute does not say that a motorist’s refusal to submit to a chemical test upon the arresting officer’s request causes an automatic revocation of license.

Whether the statute is vague and deceives a motorist to think there is only a possibility his license will be revoked by its requirement that the officer inform the motorist that refusal to take the test may result in revocation, was settled in Jones v. Schaffner, 509 S.W.2d 72, 80[9] (Mo.1974): “ * * * the refusal of a motorist to submit to a chemical test upon request of the arresting officer does not amount to an automatic loss of license. Revocation occurs only if the arresting officer believes the motorist was driving while in an intoxicated condition, that upon his request the motorist refused to submit to a test, and the officer subsequently so swears in a report filed with the Director. At the time of arrest and warning, the officer is not under compulsion to file the statement. The warning required, and here given, is sufficient to insure that the motorist is aware of the chemical test and the possible consequences of his refusal to submit to it.” See also Blydenburg v. David, 413 S.W.2d 284, 289[6] (Mo.banc 1967); and see Commonwealth, Dept. of Pub. Safety v. Tuemler, 526 S.W.2d 305 (Ky.App.1975), that officer’s warning to motorist that if he failed to take a breathalyzer test the chances were that he would lose his driver’s license, substantially apprised motorist of consequences of refusing to take the test, despite contention that officer should have pointed out that revocation by Department of Public Safety was “automatic.”

Appellant contends (II) and in his Reply that Section 564.444 is unconstitutional, asserting “it provides that a license revocation shall be ‘for a period of not more than one year’ which * * * obviously permits of a maximum revocation of one year or of a revocation of any shorter period * * *; it establishes no rules or criteria for the director * * * in setting the duration of revocation; and * * * it establishes a right to a hearing before a court * * * but * * * limits said court to determining three items of fact only and so deprives the court of judicial discretion to rule on the directoras] * * exercise of judicial discretion in setting the duration of revocation within the maximum provided * *

This contention was also raised and settled adversely to appellant in Jones v. Schaffner, supra, 509 S.W.2d l.c. 80[8], and in the concurring opinion, l.c. 81: “Respondent takes the position that the statute requires an automatic one year revocation. This contention finds support in Bolling v. Schaffner, 488 S.W.2d 212, 217 (Mo.App.1972) which says that one of the purposes of Sec. 564.444, RSMo, is ‘to punish those guilty of the offense of driving while intoxicated by revoking such offender’s license and privilege to operate motor vehicles upon the highways of Missouri for a period of one year.’ Under this view the decision to revoke for one year is made by the statute and is .not left in the director’s hands * * See also Blydenburg v. David, supra, 413 S.W.2d l.c. 290[7], quoted in Jones v. Schaffner, supra, l.c. 78.

Appellant contends (III) and in his Reply that the court erred in its finding of fact required by Section 564.444, subd. 2(2), asserting that the arresting officer did not have reasonable grounds to believe that he was driving a motor vehicle while in an intoxicated condition.

The arresting officer first saw defendant between 3:30 and 3:45 a. m., February 24, 1974, an icy night, when he answered a prowler call at 5620 Northern, Raytown, Missouri, and found defendant inside the garage pounding on the door; a window had been broken. Defendant had been a guest in the house and had been drinking. The officer left when the lady of the house was satisfied that defendant would leave without a formal complaint and arrest. Defendant “walked slow and casual, nonchalant, like he didn’t have a care in the world.” About five minutes later the officer observed a vehicle going north on Northern, turning east on 53rd Street. The officer followed, noticed that the vehicle was exceeding the speed limit, observed it disobey a stop sign at 53rd and Sterling, drive in front of a salt truck which stopped to avoid a collision, and stopped it by use of his red lights. Defendant was the driver and, as he emerged from his car, he staggered and leaned against the car. The smell of alcohol was on his breath, his eyes were red and watery, his speech was slurred and slow, and his balance was swaying. He was arrested for running a stop sign and for driving while under the influence of alcohol. The officer had over five years’ experience and was of the opinion that defendant was under the influence of alcohol. The foregoing evidence is sufficient to support a finding that the arresting officer had reasonable grounds to believe that defendant was driving a motor vehicle in an intoxicated condition. State v. Kramme, 491 S.W.2d 24 (Mo.App.1973).

Judgment affirmed.

All concur.