author: HIGGINS, Commissioner. SEILER, Chief Justice

text:
    Peter C. CHARLES and J. D. Brierly, on behalf of themselves and all other taxpayers in the State of Missouri, who have purchased new motor vehicles from and after August 16, 1971, Appellants, v. James R. SPRADLING, Director, Department of Revenue, State of Missouri, and his successor, Respondent.
    No. 58564.
    Supreme Court of Missouri, En Banc.
    July 14, 1975.

      Gerald H. Lowther, J. Douglas Cassity, Robert W. Freeman, Lowther, Cassity, Ferguson & Freeman, Springfield, for plaintiffs-appellants.
    John C. Danforth, Atty. Gen., Mark D. Mittleman, Asst. Atty. Gen., Jefferson City, for defendant-respondent.
   HIGGINS, Commissioner.

The question is whether the statutes of Missouri permit class action procedure to be employed to claim refunds of erroneously or illegally collected sales taxes.

This action was a consolidation of two separate claims for refund of sales tax. The claims arose when the federal government repealed as of August 16, 1971, the federal excise tax on the sale of new automobiles, which tax constituted part of the base upon which Missouri levied its sales tax on the sale of new automobiles, § 144.-070, RSMo 1969, V.A.M.S.

On January 28, 1972, pursuant to Section 144.190, RSMo 1969, Peter C. Charles filed a verified written claim for a $7.62 refund of sales tax paid on $253.00 repealed and refunded excise tax on his purchase November 5, 1971, of motor vehicle, number 1M45R2S14-3725. This claim was denied by the Director February 8, 1972, and claimant filed his petition for review March 8, 1972.

J. D. Brierly also filed a verified written claim pursuant to Section 144.190, RSMo 1969, asserting that he, “as does any citizen of Missouri similarly situated, does hereby request” á $7.39 refund of sales tax paid on $246.36 repealed and refunded excise tax on his purchase October 14, 1971, of motor vehicle, number 138571K175366. This claim was denied by the Director April 19, 1972. Claimant Brierly subsequently applied for a hearing before the Department of Revenue which was accorded May 17, 1972. Among other things, claimant Brierly testified in support of his claim for a $7.39 refund of sales tax, and answered affirmatively to questions from his lawyer: “Your situation is exactly the same as every other resident of Missouri who purchased a vehicle after August 16, 1971, on which sales tax was collected on amounts refunded as a result of the Excise Tax repeal, isn’t it ?” and “ * * * you make this claim for refund on behalf of yourself and everyone else similarly situated, isn’t that correct?” Mr. Brierly’s claim for refund was again denied June 5, 1972. Claimant was further advised that the denial was a final decision of the Department of Revenue and that there was no further appeal available within the department.

On July 5, 1972, J. D. Brierly joined with Peter C. Charles in a petition for review of the denial of their claims “on behalf of themselves and all other taxpayers in the State of Missouri, who have purchased new motor vehicles from and after August 16, 1971, on which State Sales Tax and Use Tax has been collected on that portion of the purchase price attributed to the Federal Excise Tax which was repealed as of August 16, 1971 * * Plaintiffs prayed on behalf of themselves and all other taxpayers similarly situated for judgment reversing the Director’s denial of the refunds in question, and commanding the Director to pay refunds to plaintiffs and all members of the class they represent.

On July 13, 1973, defendant Director of Revenue moved for summary judgment on grounds (1) that as a matter of law, plaintiffs are not entitled to a refund of the sales tax in question because Chapter 144, Revised Statutes of Missouri, contains no authority for such refunds, and (2) that as a matter of law, plaintiffs may not maintain their purported representative action because the procedural device known as a class action may not be utilized in a sales tax refund proceeding.

On July 18, 1973, plaintiffs moved for summary judgment on grounds (1) that as a matter of law, plaintiffs individually and as a class are entitled to a sales tax refund; and (2) that as a matter of law plaintiffs are proper persons to represent the class of persons denied a refund of sales tax and there are no prohibitions preventing utilization of a class action in a sales tax refund proceeding.

On December 14, 1973, the court ruled the action on the motions for summary judgment. Plaintiffs’ motion for summary judgment was sustained as to plaintiffs Charles and Brierly to award them judgments for sales tax refunds of $7.63 and $7.39. Plaintiffs’ motion was overruled as to all other parties for whom the named plaintiffs would sue in class action. Defendant’s motion for summary judgment was overruled as to the named plaintiffs and sustained as to all others for whom named plaintiffs would sue. Judgment was entered accordingly.

There is no doubt that where taxes have been erroneously or illegally collected and retained and the legislature has authorized refund of such taxes, then the taxpayer may maintain an action to recover a refund of such taxes. International Business Machines Corp. v. State Tax Commission, 362 S.W.2d 635, 639 [1] (Mo.1962).

The trial court, in ordering the refunds of sales taxes to plaintiffs Charles and Brierly, recognized that sales taxes in the amounts ordered refunded to them had been erroneously collected and illegally retained. Defendant Director of Revenue did not appeal from such a judgment and it is now conclusive and binding. Thus, the sole question is whether the statutes of Missouri permit the named plaintiffs to employ class action procedures to obtain refunds of such sales taxes on behalf of persons similarly situated. Appellants contend (I) that they are entitled to so proceed under the Sales Tax Law, Chapter 144, RSMo 1969; and (II) that they are so entitled under the class action procedure, Rule 52.08, V.A.M.R.

Under (I), appellants argue that they are entitled to their class action to recover sales tax refunds because Chapter 144, supra, “at no place prohibits use of a class action,” and that they as a class fall within the definition of persons entitled to make a claim for a sales tax refund.

Under (,II), appellants assert that they meet all the prerequisites necessary to a class action under Rule 52.08(a), i. e., a class so numerous joinder of all members is impracticable, common questions of law or fact, claims and defenses of the representative parties are typical of the claims and defenses of the class, the representative parties will fairly and adequately protect the interests of the class, and that, as required by Rule 52.08(b)(3), their common questions of law and fact “predominate over any questions affecting only individual members,” and “that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” In making this assertion, appellants concede that the amount of refund is a question of fact not identical to all parties.

Appellants also argue that if their class action is not permitted, individual members of the class will be without a remedy or relief because Chapter 144 sets a limitation of one year after such tax is paid to make claim for refund, and that the one-year period has lapsed in every case but their own. They excuse the failure of members of the class to make claims within the statutory period to preserve a right to judicial relief on the ground that the claim, if pursued through appeal in the circuit court, would cost more than it is worth.

The State of Missouri may not be sued without its consent, and statutes such as those applicable to this case which waive the immunity of the sovereign from suit are strictly construed. Kleban v. Morris, 363 Mo. 7, 247 S.W.2d 832, 836-837 [1] [2] (1952). In addition, on grounds of public policy, the law discourages suits for the purpose of recovering taxes alleged to have been illegally levied and collected; and it is for this reason of policy that the remedy of a refund, including time in which it must be filed, is the exclusive remedy. International Business Machines Corp. v. State Tax Commission, supra, 362 S.W.2d l. c. 640 [4].

Section 144.190, subd. 2, RSMo 1969, provides that if any sales tax has been erroneously or illegally collected, such sum shall be refunded to the person, but not unless duplicate copies of the claim for refund are filed within one year of the overpayment. Section 144.190, subd. 3, RSMo 1969, provides that every such claim must be in writing under oath, and must state the specific ground upon which the claim is founded, and, in the event a tax has been illegally imposed against a person, the Director of Revenue shall authorize the cancellation of the tax upon his record.

Section 144.190, supra, specifies the method by which sales tax refund claims may be made by persons claiming refunds of taxes illegally imposed. There is no provision for refunds of sales tax to be claimed on behalf of a class of taxpayers. The legislature has not waived the State’s sovereign immunity to the extent of permitting such procedure. When a state consents to be sued, it may be sued only in the manner and to the extent provided by the statute; and the state may prescribe the procedure to be followed and such other terms and conditions as it sees fit. Gas Service Co. v. Morris, 353 S.W.2d 645, 655 [10] (Mo.1962); International Business Machines Corp. v. State Tax Commission, supra; Kleban v. Morris, supra, 247 S.W.2d l. c. 840. See Henderson v. Carter, 229 Ga. 876, 195 S.E.2d 4 (1972), for a case directly in point on both facts and law; and see also Hooks v. Comptroller of Treasury, 265 Md. 380, 289 A.2d 332 (1972); Hanson v. County of Lincoln, 188 Neb. 461, 197 N.W.2d 651 (1972); Newberry Mills, Inc. v. Dawkins, 259 S.C. 7, 190 S.E.2d 503 (1972). Note also in Agron v. Illinois Bell Telephone Co., 325 F.Supp. 487 (N.D.Ill.1970), reversed on other grounds, 449 F.2d 906 (7th Cir. 1971), that an individual who has filed a claim for a refund cannot represent a class of persons who have not filed claims themselves; he is in effect a class of one. Similarly, claimants Charles and Brierly are a class of two, representing themselves but no one else.

Section 144.010, subd. 1(5), RSMo 1969, provides that “person” includes, among other entities, “any other group or combination acting as a unit, and the plural as well as the singular number.” This definition does not permit the term “person” to refer to a class of unrelated individuals as to permit them to make a claim for refunds under Section 144.190, supra, through a class action representative. Hocks v. Comptroller of Treasury, supra, 289 A.2d l. c. 334 [2].

Note also that public statements made by the Director of Revenue that refunds of sales tax would not be allowed in these circumstances, if so, did not prevent members of the class, claimants Charles and Brierly, for example, from filing claims, and did not estop the State. Henderson v. Carter, supra, 195 S.E.2d l. c. 6 [3, 4].

Miller v. Ste. Genevieve County, 358 S.W.2d 28 (Mo.1962), and Everett v. County of Clinton, 282 S.W.2d 30 (Mo.1955), cited by appellants for their proposition that “taxpayers with a special interest have the right to bring class actions to enforce that interest,” are not in point. The taxpayers in those instances were challenging the legality of certain public expenditures, not the legality of collection of taxes from individuals. Nothing in either case suggests authority for a class action to obtain sales tax refunds. Neither is Naegele Outdoor Advertising Co., Inc. v. Kansas City, 509 S.W.2d 128 (Mo.1974) in point because it did not deal with class actions.

Rule 52.08 is procedural rather than substantive; and despite the desirability of actions under the rule in certain circumstances, e. g., annexation cases under the Sawyers Act, it may not be interpreted to permit a procedure for suing the state not provided within the limited waiver of sovereign immunity of Section 144.190, subd. 3, supra. Hooks v. Comptroller of Treasury, supra, 289 A.2d l. c. 333-334 [1]; Henderson v. Carter, supra, 195 S.E.2d l. c. 6-7 [5]; Kleban v. Morris, supra, 247 S.W.2d l. c. 839 [11, 12], See also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), where the court considered an argument (similar to appellants’ argument that if their class action is not allowed, individual members of the class will be without a remedy) that no member of the prospective class “has a large enough stake in the matter to justify separate litigation of his individual claim.” The court held that the representative plaintiffs would have to bear the cost of individual notice to all members of the class under the requirements of Federal Rule 23 upon which Missouri’s Rule 52.08 is patterned. Failure of the representatives to meet the mandatory requirements of the rule would result in dismissal of their claim, thus denying relief to all.

Judgment affirmed.

WELBORN, C., concurs.

PER CURIAM:

Division One opinion by HIGGINS, C., is adopted as the opinion of the Court en Banc.

MORGAN, HOLMAN, HENLEY, FINCH and DONNELLY, JJ., concur.

BARDGETT, J., concurs in result.

SEILER, C. J., dissents in separate dissenting opinion filed.

SEILER, Chief Justice

(dissenting).

As I understand the principal opinion, we start with the fact that the state has by Sec. 144.190 consented to be sued for sales tax refunds, but we then proceed to the court-made doctrine that such statutes are to be strictly construed and since Sec. 144.190 contains “no provision for refunds of sales tax to be claimed on behalf of a class of taxpayers”, it follows that “The legislature has not waived the State’s sovereign immunity to the extent of permitting such procedure.”

This approach is consistent with the general reluctance of the courts to encourage claims for tax refunds, but I do not believe it is justified in the situation before us. It is equally important that the taxpayer know that under a just government the tax collector will not be permitted to take advantage of him.

The state now admits the tax refunds are due plaintiffs Charles and Brierly. Yet the state did all it could to keep from having to make refunds to the thousands of other Missouri taxpayers who were in the same situation. We can all recall the wide publicity which accompanied the repeal of the federal manufacturers’ excise tax on new automobiles, occurring December 10, 1971, retroactive to August 15, 1971. We were told in oral argument, not challenged or denied by the state, that the Missouri Department of Revenue stated publicly that it would make no refunds of the amount of state tax paid on account of any dealer refunds of the federal tax. The Department of Revenue treated all taxpayers as a class to which it would make no refunds. It refused to give any information as to the procedure to be followed to obtain a refund or time within which claims should be filed or the documentation required, saying- none of this was necessary as the Department was not going to make refunds. The position taken by the Department was published in Prentice-Hall Inc.—State and Local Taxes Service, Missouri Vol. 2, Sec. 23,550.

Sometimes sales tax refunds, if allowed, would produce a windfall for the claimant, as in International Business Machines Corp. v. State Tax Commission, 362 S.W.2d 635 (Mo.1962), which is one of the reasons for the policy against suits to recover taxes. Here, however, the state is getting the windfall. Under these circumstances, I see no compelling need to go to the assistance of the state by invoking strict construction to hold the class action procedure is not available. Examination of Sec. 144.190 shows nothing which forbids the use of a class action here. All that it requires is that the claim for refund be made in duplicate, in writing, under oath, within one year from the date of overpayment, with a statement of the specific grounds upon which the claim is founded. Each of these requisites is satisfied by the class action claim before us. The statute does not require that the claim be made in any particular form.

The matter is uniquely suitable for a class action, as it involves a class of Missouri citizens who paid sales tax on the federal excise tax on purchases of new automobiles during the August 15 — December 10, 1971 period, far too numerous for practical joinder as individual plaintiffs. In every instance the tax is subject to refund for the same reason, the amounts involved are small as to each individual (too small to warrant cluttering the courts with individual claims and too small for the individual taxpayer to afford to hire counsel), and the defendant, with its computerized records, can quickly and easily determine the amount of each individual refund. There are questions of law or fact common to the class, the claims of the representative parties are typical of the claims of the class, and the representative parties will fairly protect the interest of the class. Additionally, the party opposing the class has refused to act on grounds generally applicable to the class. Therefore, both subsections (a) and (b) of our rule 52.08 on class actions are met. The class is not too large to be manageable and the problem of the one year period of limitation is solved by the fact that the commencement of a class action commences the action for all of the class as subsequently determined, American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 39 L.Ed.2d 38 (1974).

In these instances where public authorities are remiss, as seems to be true of the conduct of the Department of Revenue in this case, and the taxpayer comes to the courts as his last resort, the credibility of our judicial system is involved and “[t]he class action is one of the few legal remedies the small claimant has against those who command the status quo. I would strengthen his hand with the view of creating a system of law that dispenses justice to the lowly as well as to those liberally endowed with power . . . ” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 186, 94 S.Ct. 2140, 2156, 40 L.Ed.2d 732 (1974) (Douglas, J., dissenting in part).

In my opinion, basic fairness requires that the state refund these sales taxes, which it will not do unless this action proceeds, and therefore, I respectfully dissent. I would sustain plaintiffs’ motion for summary judgment and would order the trial court to proceed with notification to the other members of the class and then with assessment of their respective refunds after the class is closed.

      . Gas Service Co. v. Morris, 353 S.W.2d 645 (Mo.1962) and Kleban v. Morris, 363 Mo. 7, 247 S.W.2d 832 (1952) are cited by the principal opinion in support of strict construction, but these eases are distinguishable. They involved attempted original actions against the state for money had and received from taxes allegedly illegally collected. Strict construction was resorted to in holding that the applicable refund statutes did not constitute state consent to direct actions. In the present ease the plaintiffs have observed all appropriate procedures to obtain judicial review and do not seek to institute a direct or unauthorized cause of action against the state.

      . Por example, in the present cases, plaintiff Charles was awarded $7.63 and plaintiff Brierly $7.39, with costs taxed against them of $38.00, resulting in a net loss of $22.98 after payment of costs.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Freddy CHAMBERS, Appellant.
    No. 58407.
    Supreme Court of Missouri, En Banc.
    July 14, 1975.

      John C. Danforth, Atty. Gen., Dan Summers, Asst. Atty. Gen., Jefferson City, for respondent.
    Kenneth W. Haile, Nolen W. Berry, Neosho, for appellant.
   HIGGINS, Commissioner.

Freddy Chambers was convicted by a jury of one count of stealing and four counts of murder, second degree. The jury was unable to agree on his punishment and the court fixed the punishment at ten years’ imprisonment for the stealing and at twenty-five years’ imprisonment on each count of murder with the terms to run consecutively. Sentence and judgment were rendered accordingly. §§ 560.156, 560.161.2(2), 559.020, 559.030, RSMo 1969, V.A.M.S.; Rules 24.04, 27.03, V.A.M.R.

Appellant does not question the sufficiency of evidence to sustain his convictions, and a jury reasonably could find that: On September 4, 1973, defendant and Ray Collins were together from about 9:00 p. m. until sometime after 1:00 a. m., September 5, 1973. They had been drinking, and defendant announced his intention “to go get a pickup at Hi Dollar Joe Bur-trum’s” at 4800 Range Line south of Joplin in Newton County, Missouri. When they arrived at Burtrum Brothers Motor Company, defendant “busted a window out of the pickup, hooked a chain onto it” and “started pulling the pickup down the road * * * real fast and all over the road.” Collins was in the pickup to steer it and defendant was towing the pickup with his Ford Torino. During the asportation, the pickup collided with an oncoming automobile. Defendant and Collins were observed in the theft of the pickup truck, a 1969, }^-ton, 6-cylinder Chevrolet equipped with a camper body, by Joe Burtrum. He heard the sound of glass breaking, after which he observed the Ford Torino pulling the pickup camper north on Range Line (U.S. Highway 71). It was dark; there were no lights on either of the vehicles; and, as they proceeded down Range Line, “they were accelerating rather rapidly, weaving from side to side of the road.” They crossed the center line several times. He tried unsuccessfully to stop the thieves by firing two or three shots from his pistol. He followed in a car, heard a crash, and saw that the pickup truck had crossed into the southbound lane and hit a Valiant automobile head on about a quarter of a mile from the car lot at 44th and Range Line. There were four persons in the Valiant, all of whom died in or as a result of the collision.

The collision occurred around 1:00 a. m., September 5, 1973.

Among others, the court gave Instruction No. 9A:

“The Court instructs the jury that under the laws of this State where a homicide shall be committed while perpetrating the theft of a motor vehicle it is deemed Murder in the Second Degree.
“In this case, if the Jury find and believe from the evidence beyond a reasonable doubt that a homicide occurred while the defendant was stealing a motor vehicle in the County of Newton, State of Missouri, then the perpetration of such theft stands in lieu of premeditation as hereinbe-fore defined, and the Jury will be warranted in finding the defendant guilty of Murder in the Second Degree and should so say in your verdict.”

Instruction No. 10:

“The Court instructs the Jury that if you find and believe from the evidence beyond a reasonable doubt that a homicide did not occur while the defendant was stealing a motor vehicle in the County of Newton, State of Missouri, the Jury cannot find the defendant guilty of Murder in the Second Degree and should so say in your verdict.”

Instruction No. 13 submitted the stealing count, and Instructions Nos. 14, IS, 16, and 17, in conventional form and predicated on Instructions Nos. 9A and 10, submitted the four counts of murder, second degree, resulting from the assault of the pickup truck on each of the four occupants in the Valiant.

Appellant charges the court erred (I) in submitting the stealing count and the four counts of murder, second degree. His theory is that “the underlying felony of stealing, being an essential part of felony-murder, merged into the murder counts, they being the greater charge. A conviction on one felony would exclude a conviction on the other felony. To be tried and convicted for both felonies [the stealing and murder, second degree] is in violation of the doctrine of double jeopardy.”

The question is whether the general rule that a defendant may not be twice tried for the same offense, State v. Toombs, 326 Mo. 981, 34 S.W.2d 61 (1930), applies in this case where defendant was charged and convicted under the felony-murder rule of felonious stealing and four murders in the second degree committed during the perpetration of the theft.

There are several propositions bearing on the resolution of this question. Although the state cannot split a single crime and prosecute it in parts, e. g., a conviction for procuring execution of a false stock certificate is a bar to subsequent prosecutions for procuring execution of other certificates, where all were signed and issued in a single transaction at a single request and with a single intent, State v. Toombs, supra; nevertheless, a person may by one act violate more than one statute or commit more than one offense, State v. Moore, 326 Mo. 1199, 33 S.W.2d 905 (1930). The test whether the offenses charged are one and the same has been expressed to be whether each offense necessitates proof of an essential fact or element not required by the other. United States v. Phillips, 432 F.2d 973 (8th Cir. 1970); Cardarella v. United States, 375 F.2d 222 (8th Cir. 1967), certiorari denied, 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176 (1967). It is immaterial that the same evidence is utilized to prove each offense if each requires proof of an essential fact or element not required to support a conviction on the other. United States v. Johnson, 284 F.Supp. 273 (W.D.Mo.1968), affirmed, 410 F.2d 38 (8th Cir. 1969), certiorari denied, 396 U.S. 822, 90 S.Ct. 63, 24 L.Ed.2d 72 (1969); Cardarella v. United States, supra; State v. Moton, 476 S.W.2d 785 (Mo.1972). As observed in State v. Toombs, supra, 34 S.W.2d l. c. 64, offenses are not identical “where an essential element of the offense denounced by one statute is not an essential element of the offense defined in the other * * *." See also Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

The question is now restated, whether, in the circumstances of this case, the stealing charge is an essential element of, or lesser included offense within, the felony-murders as to bring the case within the prohibition of State v. Toombs, supra.

The felony-murder rule permits the felonious intent necessary to a murder conviction to be shown by the perpetration of or attempt to perpetrate a felony. Proof of intent to commit the underlying felony raises a conclusive presumption that the defendant possessed the necessary felonious intent to support conviction for the resulting murder, i. e., intentional, willful, and premeditated, with malice aforethought, if felony-murder, second degree, is charged, or these plus deliberation if felony-murder, first degree, is charged. State v. Jenkins, 494 S.W.2d 14 (Mo.1973); State v. Jasper, 486 S.W.2d 268 (Mo. banc 1972). The rule does not make the underlying felony an element of the felony-murder ; it merely provides an additional means of proving the requisite felonious intent for murder. State v. Jasper, supra; State v. Shuler, 486 S.W.2d 505 (Mo.1972).

Defendant Chambers was charged with and convicted of stealing a motor vehicle, the elements of which, under Sections 560.156 and 560.161, supra, are an intentional taking of property of another without his consent and with intent to deprive the owner of the use thereof, State v. Webb, 423 S.W.2d 795 (Mo.1968); and four counts of murder, second degree, the elements of which under Section 559.020, supra, are the premeditated, willful, and intentional taking of a human life with malice aforethought, State v. Jewell, 473 S.W.2d 734 (Mo.1971). The elements of the two offenses are thus dissimilar. The commission of the underlying felony, stealing, is not an element of the murders in the second degree. With respect to the murders, the underlying felony serves only to prove the intent or state of mind necessary to the murders; and proof of the underlying felony proves both it and the intent necessary to the murder charges. Proof of different elements is necessary to each offense, even though the same evidence may go to both offenses. The offense of stealing requires proof of a taking of property; the offense of murder requires proof of a killing. Thus, the two offenses, stealing and murder, second degree, are not merged, but are separate and distinct in law and in fact. State v. Toombs, supra; Cardarella v. United States, supra; Blockburger v. United States, supra.

Several cases have recognized the absence of double jeopardy in analogous situations. In State v. Bobbitt, 228 Mo. 252, 128 S.W. 953 (1910), defendant was first charged and acquitted of murder, first degree, perpetrated during attempted arson of a house. He was subsequently charged and convicted of the attempted arson of the house. Upon appeal, defendant contended he was twice placed in jeopardy because in the murder case the state prosecuted on the theory that defendant was guilty of murder, first degree, for killing the victim while burning or attempting to burn his house, and the State was now barred from prosecuting him for the same burning, i. e., that the arson now charged was the arson offered as evidence in the murder case and it was a necessary element of the murder case. The court held that acquittal on the murder charge was no bar to the prosecution for the underlying arson. In State v. Moore, supra, defendant was charged and convicted of the murder, first degree, of one Heller. He was subsequently charged and convicted of the underlying robbery out of which the murder of Heller arose. In refusal of a plea of double jeopardy, the court reviewed the Missouri position on double jeopardy:

“Our Constitution * * *, as well as the common law, proscribes the putting again (or twice) in jeopardy of life or liberty any person for the same offense. Certainly, if defendant had been again tried for first-degree murder for the killing of Heller, he could have pleaded successfully former jeopardy, for he would have been tried for the same offense. * * * although it is unnecessary so to decide, for the questions are not here involved, * * * the plea of former jeopardy probably would be sustained as to the lesser or lower grades or degrees of homicide or assault necessarily included in and apposite to first-degree murder, such as second-degree murder, manslaughter, etc., for such lesser degrees are included within the same offense. But murder and robbery are not the same offense, nor does one necessarily emanate from the other. While their common essential element is that of assault, yet they are distinct and separate statutory offenses.
“ * * * It may be that during the same transaction both offenses are committed, yet they remain separate and distinct offenses and are not the same offense. It may be that on a trial for either offense evidence as to the other offense is admissible as a part of the res gestae, but this does not constitute them the same offense. Distinct and separate offenses are not to be held merged because they happen to grow out of the same transaction.
“Defendant cites State v. Mowser, 92 N.J.Law 474, 106 A. 416, 4 A.L.R. 695, to sustain his position. That case is seemingly predicated on the postulate that the occurrence out of which the offenses issued was one inseparable transaction. This may be called the ‘same transaction rule.’ Missouri, according to our decisions, prefers to follow the separate or several offense rule, and we have held that an offender is not to be exonerated from responsibility for his acts because his desires or passions persuade or impel him to commit two or more offenses during a transaction or occasion. State v. Martin, 76 Mo. 337; State v. Bobbitt, 228 Mo. 252, 128 S.W. 953; State v. Temple, 194 Mo. 228, 92 S.W. 494. The general rule on the subject is stated in 8 Ruling Case Law, page 148, § 133, reading: ‘When a single transaction constitutes two or more offenses, wherein the lesser offense is not necessarily involved in the greater and when the facts necessary to convict on the second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second.’ ” 33 S.W.2d l.c. 906, 907. Cf. State v. Richardson, 460 S.W.2d 537 (Mo.banc 1970), where the necessary act toward commission of attempted robbery was the identical assault upon which the charge of assault to maim without malice was based and where defendant had been convicted of attempted robbery subsequent prosecution for assault with intent to maim was violative of the rule against double jeopardy; and State v. Neal, 514 S.W.2d 544 (Mo.banc 1974), where the robbery of one Walton charged in Count I was the result of the assault committed upon Walton and was the identical assault charged in Count III. There was thus a splitting of the single crime of robbery and prosecution of it in both Counts I and III was violative of the rule against double jeopardy.

Appellant’s citations from foreign jurisdictions do not persuade an overturning of the foregoing authorities. State v. Carroll, 282 N.C. 326, 193 S.E.2d 85 (1972); State v. Thompson, 280 N.C. 202, 185 S.W.2d 666 (1972), and Colle v. Henderson, 350 F.Supp. 1010 (W.D.La.1972), interpret felony-murder rules so as to make the underlying felonies an essential element of or lesser included offense in the murder itself; and State v. Thomas, 114 N.J.Super. 360, 276 A.2d 391 (1971), reached appellant’s desired result by applying a “same evidence test” as opposed to the dissimilar elements or separate or several offense test prevalent in Missouri. State v. Toombs, supra; Blockburger v. United States, supra.

In summary, where a homicide is prosecuted under the felony-murder rule, the other felony does not become, a fortiori, merged in or an element of the offense of murder, and the defendant may be prosecuted for both the homicide and the underlying felony without being twice placed in jeopardy if the conviction of each offense requires proof of essential elements not required for conviction of the other. Accordingly, the convictions of this defendant did not violate the rule against double jeopardy because, as demonstrated, the underlying felony of stealing required proof of essential elements differing from or not necessary to the felony-murders in the second degree.

Appellant contends (II) that the information was fatally defective and insufficient to charge felony-murder in the second degree because it did not charge the underlying felony, stealing a motor vehicle, or its manner of commission “as being inherently or foreseeably dangerous to human life.”

Related to this contention is appellant’s plain error charge that the court erred (III) in its instructions 9A and 10 because they “did not properly state the law that the underlying felony or its manner of commission had to be inherently or fore-seeably dangerous to human life.”

Appellant’s argument is that when the felony-murder rule is applied under Section 559.010, supra, the felonies there enumerated, arson, rape, robbery, burglary, or mayhem, as underlying felonies for felony-murder, first degree, are possessed of inherent or foreseeable danger to human life; but that when applied under Section 559.020, supra, felonies other than those enumerated in Section 559.010 as felonies underlying murder, second degree, must be charged and submitted as having been committed in a manner inherently or foreseea-bly dangerous to human life; and that otherwise murders in the second degree arising from nonviolent felony situations would produce unintended and incongruous results.

Appellant, again, would support his position with citations from foreign jurisdictions, e. g., People v. Satchell, 6 Cal.3d 28, 98 Cal.Rptr. 33, 489 P.2d 1361 (1971); People v. Pavlic, 227 Mich. 562, 199 N.W. 373 (1924); State v. Thompson, supra; Jenkins v. State, 230 A.2d 262 (Del.1967); People v. Golson, 32 Ill.2d 398, 207 N.E.2d 68 (1965); People v. Lilliock, 265 Cal.App.2d 419, 71 Cal.Rptr. 434 (1968). He asserts that “in all Missouri cases researched by appellant, the facts were such as to fall within one or more of the aforementioned lines of authority,” e. g., State v. Simpson, 471 S.W.2d 173 (Mo.1971), where the felon stole an automobile tape player and shot the victim who was observing the theft; State v. Lewis, 273 Mo. 518, 201 S.W. 80 (1918), where two felons who had been stealing automobiles were armed and killed a police officer; State v. Beal, 470 S.W.2d 509 (Mo. banc 1971), where fleeing felons fired shots at pursuing police officers and collided with another car, killing an occupant. Also cited is State v. Glover, 330 Mo. 709, 50 S.W.2d 1049 (1932), which appellant recognizes “does not use it as a limitation, [although] the court plainly acknowledged that in deciding whether or not to use the Felony-Murder Rule in any given situation one should consider whether ‘the felony is dangerous’ or ‘betokens a reckless disregard of human life.’ ”

The difficulty in appellant’s position is two-fold: First, the suggested consideration whether the underlying felony is dangerous or betokens a reckless disregard of life, was satisfied in this case by the evidence showing that the underlying felony of stealing a motor vehicle was accomplished by towing it on a major highway in darkness without lights, weaving from side to side, and after drinking. The collision and resulting deaths attest to the violence and danger in such actions.

Appellant’s second difficulty is illustrated by State v. Jasper, 486 S.W.2d 268 (Mo. banc 1972), in which four armed men robbed a market. As they emerged with guns in hand, they were observed by a police officer in a marked vehicle. The robbers fled, defendant and one Beal using an automobile. The officer called to them to halt, and fired two shots in the air. A high speed chase followed until the car, driven by Beal, collided with another and one of its occupants was killed. In noting the sufficiency of a case of felony-murder, second degree, the court observed: “ * * * Missouri recognizes the common law felony-murder rule under which a homicide committed in connection with a felony other than those enumerated in Section 559.010 is murder in the second degree, absent other evidence from which the jury could find the elements necessary to a finding of murder in the first degree. * * * the flight by defendant and Beal from the site of the robbery could constitute a continuation of the robbery and hence be a sufficient basis for sustaining a first degree felony-murder charge. State v. Beal, supra. [470 S.W.2d 509]. However, contrary to defendant’s position, the acts of defendant and Beal in fleeing after the officer shouted to them to halt and after he fired his gun in an attempt to halt them also could sustain a charge of resisting lawful arrest * * *. Since resisting arrest is not one of the felonies specified in § 559.010, evidence thereof would have justified a submission of the case to the jury by an instruction on murder in the second degree based on a finding by the jury that the homicide occurred in connection with the offense of resisting arrest.” 486 S.W.2d l.c. 271 [1-3].

This distinction of felony-murder in the first and second degrees and the lack of any requirement such as that argued by appellant in the charge and submission of felony-murder, second degree, was well stated in State v. Lindsey, 333 Mo. 139, 62 S.W.2d 420, 425 (1933) : “ ‘Where parties are engaged in the commission of one of the felonies enumerated in section [559.010, RSMo 1969], if a homicide accompanies and is incidental to the enterprise, whether intended or not, it is murder in the first degree; if the intention is to commit some felony other than those enumerated in that section, such homicide, although unintentional, is murder in the second degree under Section [559.020, RSMo 1969] * * *.’ ” Again, the illustration of the “other felony” sufficient to underlie felony-murder in the second degree was the felony of jailbreak which is not necessarily inherently or foreseeably dangerous to human life. See also State v. Robinett, 279 S.W. 696 (Mo.1926), where felony-murder second degree, was successfully founded on the felonious manufacture of intoxicating liquor and the victim was killed while moving his mash to a place of concealment. In determining whether defendant was engaged in the felonious manufacture of liquor while moving his mash, the court observed, apropos the present case: “The common-law rule is that, after the commission of a felony, if the criminal, in attempting to make way with his plunder, incidentally commits a homicide, he is guilty of murder. Wharton on Homicide, p. 186.” 279 S.W. l.c. 699 [4].

The rationale of these authorities is that in cases of felony-murder in the second degree, the defendant has formed a criminal intent to commit the underlying felony; and if he proceeds with its perpetration, he should answer to the consequences of his intentions, including accountability for homicides that occur incidental to the underlying felony. He ought not be heard to say that he entered into his felonious purpose without the intent to cause a death because the felony he intended to perpetrate was not supposed to result in death. It is only because of his felonious purpose that another person is dead. See State v. Shuler, 486 S.W.2d 505 (Mo.1972).

Appellant contends (IV) that the court erred in trying and submitting the four counts of murder where they arose “from one act or transaction.” He stated the question to be “whether a single act and intent supplied by a fiction of law resulting in multiple deaths is one offense or a number of offenses equal to the number of deaths.”

Appellant concedes that State v. Whitley, 382 S.W.2d 665 (Mo.1964), holding that there shall be as many offenses of manslaughter as there are human beings killed, whether by one act or several, “seemingly answers this question.” He asserts, however, that State v. Whitley “is not relevant to the case at bar, and even if relevant, it should be overruled,” and that multiple deaths arising under the felony-murder rule should be held to be a single offense of murder.

In support of his assertion of irrelevancy, appellant argues that State v. Whitley did not address the question of multiple deaths resulting from an offense requiring the element of intent; and that it imputed to the legislature an intent that “every killing,” as used in Section 559.070, RSMo 1969, V.A.M.S., defining manslaughter, means that each such killing is a separate offense, whereas Section 559.020, defining murder, second degree, is not so specific.

In support of his assertion that State v. Whitley should be overruled, appellant is, again, forced to rely upon cases from foreign jurisdictions, e. g., Crocker v. State, 204 Tenn. 615, 325 S.W.2d 234 (1959); State v. Wheelock, 216 Iowa 1428, 250 N.W. 617 (1933). Similarly, in support of his assertion that multiple felony-murders should be but a single offense, he cites State v. Mills, 51 N.J. 277, 240 A.2d 1 (1968), and Thessen v. State, 508 P.2d 1192 (Alaska 1973), which held the single transaction and not its results to be the offense.

In this case appellant, in addition to a charge of felonious stealing, was charged and convicted of four separate and distinct offenses, the murder of four human beings, and those four separate offenses were committed even though they arose out of and in the course of the same acts constituting the underlying felony. Accordingly, State v. Whitley, supra, is controlling. Appellant’s argument and authorities which apply different tests, e. g., the New Jersey single transaction test, State v. Mills, supra, do not persuade that State v. Whitley is irrelevant in answer to appellant’s contention or that it should be overruled. See State v. Moton, supra, which affirmed two convictions of defendant for armed robbery of two service station attendants on the theory of one act but two separate offenses where both robberies occurred almost simultaneously in a same or single transaction. See also State v. Smith, 491 S.W.2d 257 (Mo.1973), certiorari denied, Smith v. State, 414 U.S. 1031, 94 S.Ct. 460, 38 L.Ed.2d 322 (1973), which affirmed two convictions of defendant for felony-murder of a man and his wife where both killings occurred during the robbery of the husband and the rape of his wife, a same or single transaction, and both offenses when tried separately were proved by substantially the same evidence. Note also that the trial of defendant Chambers under Rule 24.04, V.A.M.R., would satisfy the objections of Justices Brennan, Douglas, and Marshall, dissenting in Smith v. State: “Although both charges * * * arose out of the same transaction or episode, they were prosecuted * * * in separate proceedings. That * * * requires that we grant the petition * * * and reverse, for * * * the Double Jeopardy Clause * * * requires the prosecution, except in extremely limited circumstances not present here, ‘to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode or transaction.’ Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469.” See also Carpenter v. State, 513 S.W.2d 702 (Mo.App.1974).

Finally, appellant charges the court with plain error (V) in its Instruction No. 6 which covered defendant’s presumption of innocence and the standard of reasonable doubt. The instruction and attack are the same as in State v. Davis, 482 S.W.2d 486, 489 (Mo.1972), where the complaint was noted to have been “frequently raised and found not meritorious.” See also State v. Lovell, 506 S.W.2d 441 (Mo. banc 1974). United States v. Atkins, 487 F.2d 257 (8th Cir. 1973), considered this matter with some favor, disapproving “the alternative statement that reasonable doubt means a substantial doubt.” That court, however, refused to “say that the giving of this instruction * * * constituted plain error * * 487 F.2d l.c. 260 [9]. See also State v. Yarbrough, 506 S.W.2d 90, 92[1] (Mo.App.1974). This matter should no longer arise in Missouri because MAI-CR 2.20 is the only instruction to be given on this subject and it cures the complaint by omission of the questioned equation.

Judgment affirmed.

WELBORN, C., concurs.

PER CURIAM:

The Division One opinion by HIGGINS, C, is adopted as the opinion of the Court en Banc.

MORGAN, HOLMAN, HENLEY, FINCH and DONNELLY, JJ., concur.

SEILER, C. J., dissents in separate dissenting opinion filed.

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

SEILER, Chief Justice

(dissenting).

I respectfully dissent from the portion of the principal opinion which allows the commission of any felony to be the basis for a second degree murder conviction. This holding is, in my opinion, unsound, inconsistent with the doctrine of felony murder in the first degree, and serves to extend that doctrine “beyond any rational function that it is designed to serve.” People v. Washington, 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130 (1965).

Our legislature has enumerated those felonies which they perceived to be so inherently dangerous to human life that when a homicide occurs during the commission thereof, liability for murder in the first degree is supplied by the fact of the felony alone, Sec. 559.010 RSMo 1969, V. A.M.S. Our statute was modeled after Pennsylvania’s, State v. Meyers, 99 Mo. 107, 12 S.W. 516 (1889), and the supreme court of that state has explained it as follows: “. . . [I]n cases of homicide in the perpetration of certain offences, viz., arson, rape, robbery, burglary, all idea of intention was excluded. The act in which the malefactor was engaged was of such a nature, so deep a crime, involving such turpitude of mind, and protection against which was so necessary to the peace and welfare of all good citizens, that our Legislature considered the intention as of no consequence, and accordingly decreed death to be the penalty of such offences . . .”, Commonwealth v. Flanagan, 7 Watts & S. 415, 418 (Pa.1844). Accordingly, it is irrelevant whether the death is intended, or whether the enumerated felony is committed in a dangerous manner, or on the contrary is committed in a manner calculated to avoid such a risk of death, as where an arsonist takes precautions to insure that no one is in the building he intends to burn, but a person concealed therein is nevertheless killed. These felonies are viewed in the abstract, and utilize only the original felony to create liability for murder in the first degree. See MAI-CR 6.16-6.19: if the jury finds that the defendant was committing one of the enumerated felonies and death resulted thereby, they are instructed to find the defendant guilty of murder in the first degree. It is also significant to note that prior to 1879, our first degree murder statute provided that a homicide shall be murder in the first degree when committed in the perpetration of any arson, rape, robbery, burglary or other felony. Missouri General Statutes, c. 200, Sec. 1 (1866). By 1879, however, this section had been amended, substituting the words “or mayhem” for “or other felony”. Missouri Revised Statutes, Sec. 1232 (1879).

Our second degree murder statute, Sec. 559.020 RSMo 1969, V.A.M.S., includes “All other kinds of murder at common law, not herein declared to be manslaughter or justifiable or excusable homicide . . . ” The doctrine of felony murder in the second degree has not been used extensively in Missouri; generally, however, it is associated with violent crimes. See, for example, State v. Hayes, 262 S.W. 1034 (Mo.1924) (conspiracy to “beat up” victim resulting in victim’s death); State v. Lindsey, 333 Mo. 139, 62 S.W.2d 420 (1933) (defendants beat a fellow prisoner to death while escaping from jail) ; State v. Holloway, 355 Mo. 217, 195 S.W.2d 662 (1946) (sheriff killed during a jailbreak); State v. Jasper, 486 S.W.2d 268 (Mo.banc 1972) (victim killed while defendant was resisting arrest).

In none of these cases was the nature of the underlying felony ever at issue. We do, however, find two cases involving felonies which cannot be said to be dangerous to human life. In State v. Robinett, 279 S.W. 696 (Mo.1926), the victim was killed by defendant’s son during their effort to transport mash (from the illegal manufacture of liquor—a felony) to a place of concealment. In State v. Wright, 337 Mo. 441, 85 S.W.2d 7 (1935), there was evidence that a “robbery” during which the victim was killed was staged in order to defraud an insurance company — a felony. In both these cases, the court held that a second degree murder conviction might rest on the underlying felonies without discussion as to the nature of those felonies. But see State v. Sharpe, 326 Mo. 1063, 34 S.W.2d 75 (1930), where there was conflicting evidence as to whether there was a robbery or a larceny, the court held that if the crime was only larceny, a jury could find that the homicide was only manslaughter.

State v. Robinett, supra, and State v. Wright, supra, appear to be aberrational and incorrectly decided. Neither of the underlying felonies in those cases were felonies at common law, and so could not have supported a conviction of “murder at common law” such as to fall within our second degree murder statute. See People v. Pavlic, 227 Mich. 562, 199 N.W. 373 (1924), where the defendant sold liquor under circumstances amounting to a felony in those days; the purchaser became drunk and died of exposure. The court stated that the homicide could not be murder since the underlying crime was not a common law felony and was not itself directly and naturally dangerous to life. See also Commonwealth v. Exler, 243 Pa. 155, 89 A. 968 (1914), where the victim died from shock resulting from the commission of statutory rape; the court held that the unintended death was not murder since statutory rape was not a common law felony. This case should be particularly noted since our murder statutes were modeled after those of Pennsylvania, State v. Meyers, supra. The soundness of these decisions is aptly illustrated by a Kentucky court, which stated, “. . . Under our statute, the removal of a corner stone is punishable by a short term in the penitentiary, and is therefore a felony. If, in attempting this offense, death were to result to one conspirator by his fellows accidentally dropping the stone upon him, no Christian court would hesitate to apply this limitation . . . ”, i. e., the death would not be murder. Powers v. Commonwealth, 110 Ky. 386, 61 S.W. 735 (1901).

But more important than the question of whether or not a particular felony could support a conviction of murder at common law, a rule which includes only inherently dangerous felonies in the doctrine of felony murder is supported by history, common sense, and logic. At common law, a homicide was either murder or manslaughter, and there were no degrees of murder. Wharton on Homicide, 147 (3d ed. 1907). Furthermore, all felonies were punishable by death, 4 Blackstone Comm. 95-98 (Lewis’ ed. 1900). The relation of these two facts to the genesis of the felony murder doctrine is described by Perkins as follows :

“Since the would-be felon was willing to risk his life, it was relatively unimportant that he became guilty of a capital crime in a different manner than he intended. The primary purpose of the rule, it may be mentioned, was to deal with the case in which the homicide was caused in an attempted felony which failed. Conviction of felony resulted in total forfeiture, the loss of life and lands and goods, so nothing would have been added by establishing guilt of a second felony. At attempt to commit a felony, however, was a mere misdemeanor at common law. Hence to hold guilty of a capital crime one who made an unsuccessful attempt to commit burglary during which he had caused the loss of human life, however unintentionally and unexpectedly, put the wrongdoer in no worse position, in legal theory, than if he had succeeded in committing burglary without homicide. At the present time, with the removal of most felonies from the category of capital crimes, the reason for the rule has ceased to exist.” Perkins, The Criminal Law 44 (2d ed. 1969).

Thus, with the general trend toward mitigation in the harshness of punishment for many felonies, and the addition of many statutory felonies which were unknown to and not of the same dangerous character as those at common law, the application of an unlimited felony murder rule became increasingly irrational and unfair. The English courts began to impose limitations on the doctrine, and in the leading case of Regina v. Serne, [1887] 16 Cox Cr.Cas. 311, it was said, “ . . . instead of saying that any act done with intent to commit a felony and which causes death amounts to murder, it would be reasonable to say that any act known to be dangerous to life, and likely in itself to cause death done for the purpose of committing a felony which caused death, should be murder.” See also Director of Public Prosecutions v. Beard, [1920] A.C. 479. Eventually, Parliament abolished the felony murder doctrine altogether, Homicide Act of 1957, Sec. 1.

We are of course bound by the doctrine of felony murder as expressed in Sec. 559.-010, murder first degree, notwithstanding the absence of its original purpose. It has been well stated that the only remaining justification for the continued existence of the doctrine is to furnish an added deterrent to the perpetration of those felonies which by their very nature create a likelihood of danger to life, by making the felon liable for murder even when death is unintended and accidental. People v. Satchell, 6 Cal.3d 28, 98 Cal.Rptr. 33, 489 P. 2d 1361 (1971); Jenkins v. State, 230 A.2d 262 (Del.1967).

The rationale of deterrence, however, cannot justify the inclusion of any felony to support a murder conviction. If the felony is not inherently dangerous, the added sanction of murder liability will not deter the potential felon, for it is highly unlikely that he will anticipate that death will occur solely from the fact that he will commit a felony. See Jenkins v. State, supra at 269. Justice Holmes, in discussing the application of the felony murder doctrine to a situation where one who shoots chickens for the purpose of stealing them accidentally kills a man in the chickenhouse, stated, “. . . If the object of the rule is to prevent such accidents, it should make accidental killing with firearms murder, not accidental killing in the effort to steal; while if its object is to prevent stealing, it would do better to hang one thief in every thousand by lot ... ”, Holmes, The Common Law 58 (1881).

Since the felonies enumerated in our first degree murder statute are inherently dangerous, it would be inconsistent therewith to allow any felony to support a conviction for murder in the second degree. Such a holding would “widen the gap between moral culpability and criminal liability” and extend the doctrine of felony murder far beyond any rational function it is designed to serve. People v. Washington, supra. Many writers have severely criticized the rule and strongly advocated against its expansion. See for example, Perkins, A Re-Examination of Malice Aforethought, 43 Yale L.J. 537, 563 (1934); Michael & Wechsler, A Rationale of the Law of Homicide, 37 Col.L.Rev. 701, 713-715 (1937); Note, 35 Journal of the Association of Trial Lawyers of America 296 (1974); American Law Institute, Model Penal Code, Sec. 201.2 (Comment, Tent. Draft No. 9, 1961).

It is significant to note that nearly all jurisdictions place some limitation on the felonies which can support a murder conviction; such felonies must be either inherently dangerous or committed in a manner dangerous to life. See 40 Am.Jur.2d, Homicide Sec. 73; Annot., Felony-Murder —“Dangerous” Felonies, 50 A.L.R.3d 397; Note, 35 Journal of the Association of Trial Lawyers of America, supra. The “inherently dangerous” test is to be preferred to the “manner of commission” test in that it is consistent with the principles governing felony murder in the first degree, i. e., the manner of commission is irrelevant and the felony is viewed in the abstract. Furthermore, the manner of commission test becomes devoid of meaning by virtue of hindsight; if a death occurs, one can immediately consider that the felony was committed in a dangerous manner — otherwise the death would not have occurred. And as the California supreme court so aptly stated, “. . . To frag-mentize the ‘course of conduct’ of defendant so that the felony-murder rule applies if any segment of that conduct may be considered dangerous to life would widen the rule beyond calculation. It would then apply not only to the commission of specific felonies, which are themselves dangerous to life, but to the perpetration of any felony during which defendant may have acted in such a manner as to endanger life. . . . [T]he number or nature of the con-texual elements which could be incorporated into an expanded felony terminology would be limitless. We have been, and remain, unwilling to embark upon such an uncharted sea of felony murder.” People v. Satchell, supra, 98 Cal.Rptr. at 39-40, 489 P.2d at 1367-1368. See also State v. Moffitt, 199 Kan. 514, 431 P.2d 879 (1967), where the supreme court of Kansas adopted the “inherently dangerous” test.

In the case at bar, the underlying felony is stealing, Sec. 560.156, RSMo 1969, V.A. M.S., which is not a felony enumerated for murder in the first degree, and, unlike robbery which involves direct confrontation with the person whose property is being taken, stealing is not a felony dangerous to life when viewed in the abstract. Automobile theft is one of the most common crimes today, and ought not to be the basis for a conviction of murder in the second degree, especially when there are more relevant criteria to be found in our manslaughter statutes which properly apply to the state of mind demonstrated by the defendant under the facts of this case. It is both unnecessary and unjustifiable to give the legal fiction of felony murder any more broad a sweep than it presently possesses; the law is perfectly capable of punishing defendants for reckless and wanton conduct under conventional homicide statutes. For these reasons, I would reverse the murder conviction, leaving the prosecutor to file a new information if so advised. If such be the outcome of this case, I would affirm the conviction for stealing, as this disposition of the matter would eliminate the double jeopardy problems discussed later herein and would leave only the stealing conviction, as to which, when considered alone, I see no error.

On the other hand, if this view is not to prevail and if the second degree murder conviction is allowed to stand, then I must also dissent from the portion of the principal opinion affirming the stealing conviction and holding that the defendant is not being twice put in jeopardy for the same offense. While the principal opinion concludes that the underlying felony is not an “element” of the crime of second degree murder, but merely goes to prove the requisite mental state for that crime, such a conclusion is immaterial. Regardless of the rationale behind the felony murder doctrine, the fact remains that in order to reach a verdict of guilty for second degree murder, the state need prove only the fact of the felony and a homicide in the perpetration thereof. In this case the jury was instructed in no more complicated terms than these. With this in mind, the case at bar becomes indistinguishable from State v. Neal, 514 S.W.2d 544 (Mo. banc 1974) and State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970). In those cases it was held that a defendant could not be convicted both of robbery and the assault which constituted the violence to the victim incidental and necessary to robbery. Similarly in State v. Parsons, 513 S.W.2d 430 (Mo.1974), it was held that a defendant could not be convicted both of murder and the bombing which caused the death of the victim. The court stated that “. . . the necessary act toward the commission of the bombing was the identical act necessary to constitute the crime of murder. The bombing was an incident included in the crime of murder as charged . . . ” and the state may not obtain a conviction “not only of the crime of murder by bombing but also a conviction for the incident of bombing.” Id. at 438. As stated in In re Nielsen, 131 U.S. 176, 188, 9 S.Ct. 672, 676, 33 L.Ed. 118 (1889), “. . . where . . . a person has been tried and convicted of a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.”

Just as a bombing may not be prosecuted as a crime in itself if it is the same bombing incident to a homicide, neither can the stealing in this case be separated and prosecuted as another offense where it is the same stealing incident to the second degree murder conviction. The lesser crime is “used up” in the greater and ought not to be “thrown in” as a separate charge now that rule 24.04 makes it more easily possible for prosecutors to try more than one offense in a single proceeding.

      . In fact, however, there is proof that homicides resulting from these felonies are much less frequent than might be supposed. According to the District of Columbia Crime Commission, for example, less than one half of one percent of the robberies and about one percent of forcible rapes are accompanied by homicide. The Challenge of Crime in a Free Society, Report by the President’s Commission on Law Enforcement and the Administration of Justice 19 (1967). See also ALI, Model Penal Code, Sec. 201.2 (Comment, Tent. Draft No. 9, 1961), with earlier statistics to the same effect.


author: MORGAN, Judge. HENLEY, Presiding Judge.

text:
    CITY OF ST. LOUIS et al., Petitioners-Respondents, v. STATE TAX COMMISSION of Missouri et al., Defendants, and The Engineers’ Club of st. Louis, a not-for-profit corporation, Defendant-Appellant. The ENGINEERS’ CLUB OF ST. LOUIS, a Missouri Corporation, Defendant-Appellant, v. STATE TAX COMMISSION of Missouri, Defendant.
    No. 57646.
    Supreme Court of Missouri, En Banc.
    July 14, 1975.
    Robert C. McNicholas, Jack L. Koehr, City Counselors, James J. Wilson, Associate City Counselor, St. Louis, for petitioner-respondent City of St. Louis.
    Willard B. Bunch, County Counselor, John Edward Cash, Associate County Counselor, Kansas City, for amicus curiae, Jackson County, Missouri.

      Lashly, Caruthers, Thies, Rava & Ham-el, Elihu M. Hyndman, William I. Rutherford, St. Louis, for defendant-appellant.
   MORGAN, Judge.

This opinion is written after a recent reassignment of the case, and it presents the limited question of whether real property of The Engineers’ Club of St. Louis is exempt as a charity from ad valorem taxes for the year 1970. We hold that it is.

Much of the factual recitation found in the opinion originally written follows without benefit of quotation marks.

In 1970 the assessor of the city of St. Louis assessed at the value of $230,900, real estate and improvements owned and occupied by The Engineers’ Club of St. Louis (hereinafter referred to as The Engineers’ Club, the Club, or the appellant). Before that year the property involved was carried on the tax books as exempt because used for charitable purposes. The Club appealed the assessment to the board of equalization of the city and, being unsuccessful there, appealed to the State Tax Commission (hereinafter the Tax Commission or the Commission), contending that the property is exempt from taxation for state, county and local purposes for the reason it is used exclusively for charitable purposes within the meaning of § 137.-100(5). After a hearing, the Commission made findings of fact and conclusions of law, and entered its decision holding (1) that while the property is not wholly exempt because it is not used for charitable purposes, it is partially exempt because of its “educational activities”; (2) that “approximately 10 percent of [its] activities * * * do not fall within the educational exemption * * *, [but that] the remaining 90 percent * * * should be regarded as exempt”; and, therefore, (3) the property should be assessed at 10 percent of $230,900, or $23,090.

Both the city and the Engineers’ Club filed petitions for review of this decision in the circuit court pursuant to Rule 100.-03 et seq., each taking the general position that the decision was contrary to or not authorized by law, the city seeking reinstatement of the original assessment and the Engineers’ Club full exemption.

The circuit court ordered the two petitions consolidated for all purposes in accordance with a stipulation of the parties, and the cause was thereafter submitted on the record made before the Tax Commission, the briefs filed, and argument of counsel. In due course the court filed a memorandum opinion holding that the property was not used exclusively for charitable purposes and therefore was not exempt, and that the case should be remanded to the Tax Commission with directions to reinstate the assessment of $230,900. Judgment was entered accordingly, and the Engineers’ Club has appealed.

The facts, as found by the State Tax Commission and the trial court, are, in substance, as follows. The Engineers’ Club of St. Louis was organized December 2, 1868, and has remained in existence since. It is incorporated as a non-profit corporation by pro forma decree of the circuit court of the city of St. Louis. Its constitution provides in Article II:

“The Corporation shall be a non-sectarian, non-political and non-profit society. The objectives and purposes of the Corporation shall be to promote the educational and professional improvement of its members, to advance the field of engineering in its several branches, to make available to the general public technical and scientific information and knowledge, and generally to aid in the solution of public questions involving engineering and scientific problems. The entire income of the Corporation shall be used in the furtherance of its objectives and purposes and no part of such income shall inure to the benefit of any individual or individuals, except as compensation for services rendered or for necessary expenses actually incurred.”

Membership in the Club is voluntary and open to any person of good moral character who is a registered professional engineer or a registered architect, or who is engaged in an occupation allied to the practice of engineering or architecture or science, or whose interest is in one or more of these fields. Its membership was 2,679 on May 31, 1970.

In 1926 the Club acquired one of the parcels of real estate involved in this suit and in 1956 acquired the adjoining parcel. In 1959 the present building, designated as 4359 Lindell Boulevard, was constructed on this property and has since been occupied by the Club. The real property is a tract of land having a 200 foot frontage on the north side of Lindell with a northerly depth of 213 feet. The cost of the real estate was $196,000 and the cost of the improvement $367,541. The building consists of one story and a basement. The ground floor contains an auditorium having a 400 seat capacity, a reception area, cloak room, office for clerical staff and for the club secretary, a library, pantry and serving counter, and a fellowship hall. The basement consists of a utility room, recreation rooms and a large meeting room. At the rear of the building is a parking lot. The Club has no dining room facilities or food service. Food is made available for meetings and is provided either by a catering service or by the members themselves. No facilities are available for private parties, luncheons or dinners by the individual members. The books of the Club reflect charges to others for such services as “Projectionist,” “help,” “refreshments,” and other similar items, but all such costs are reimbursement for actual expenditures only, without profit.

The activities of the Engineers’ Club are extensive. There is a program of weekly meetings, running from September through May. At these meetings there are technical programs, and a great many of them are co-sponsored by one of the local chapters of a national specialty group. Certain other societies participate, such as the American Institute of Archeology, the American Institute of Architects, or the American Institute of Aeronautics and Astronautics, among others. These meetings are held for members of the participating societies, the general public, and other engineers. One of the primary objectives of the meetings is to enable specialists in one field to become acquainted and communicate with specialists in their own and other fields. The holding of these meetings is one of the principal functions of the Club.

Another Club function is the young engineers’ program: a program of meetings at which papers are presented on various topics, discussions held, and ideas exchanged. This is done entirely by junior engineers.

The Club also concerns itself with the education of engineering students. The Club sponsors meetings with Missouri University at Rolla, Columbia and St. Louis, and with St. Louis University, Washington University and Purdue University. These review curriculae, explore new avenues of teaching, and project ideas as to revision in the training of engineering students. The Club also has an education committee which works with a national organization called The Engineers Council for Professional Development which works through high schools and secondary schools all over the country. Their purposes are to explain what a career in engineering is, why it is attractive, and what training is necessary to become an engineer.

The Club building is sometimes used by private companies. An example of this use is that made of the Club’s facilities by Sachs Electric Company, a private concern. That company has a seminar each year to acquaint electricians with the city’s building program requirements. Other private companies, such as White-Rodgers Company, Mallinckrodt Chemical Company, Portland Cement Association and others, use the facilities for seminars. The use of Club facilities is restricted to organizations which are concerned with technical, scientific or closely allied types of work. These meetings are open to the public. The Engineers’ Club charges for the hall rental, for extra help, and such other costs as may be involved. No profit is made, however.

In addition, the Club is used for publication of “The Engineering Club Journal,” for Club committee meetings during the day, for exhibits of various kinds, and for fund-raising affairs for engineering students.

There is some social activity, including one night a month called fellowship night, and bridge games are played about once a week. There are billiard tables located in the basement, and several dances are held each year.

In addition to the educational meetings and activities held by The Engineers’ Club, it has taken positions on matters of public concern, including mass transportation, airport planning and water quality control. Since 1966 the board of the Club adopted various resolutions supporting matters of public interest, including bond issues for parks, courthouses, office buildings, and other public bond proposals. In 1970 the board approved the use of the Club facilities to hold a public hearing on air pollution and instructed its president to write the mayor a letter approving a vote on the 1 per cent sales tax proposition and the $15,000,000 bond issue to be submitted to the voters. It passed a resolution to urge the head of St. Louis University to reconsider the discontinuance of its engineering school and requested the Governor of Missouri to appoint members of the Club to the Governor’s Council on Environment. The board also resolved that the Club take leadership in promoting the establishment of a state-supported engineering school at the University of Missouri in St. Louis and that a committee be appointed to implement the action of the Board.

Under the direction of its Public Affairs Committee a series of public meetings were held in 1968 using the Club facilities. These meetings were conducted by a panel of speakers of national and local reputation. These included the following:

A mass transportation symposium was held in April, 1968. It was attended by approximately 140 people. Among topics discussed were mass transit in St. Louis, the national mass transit situation, financing sources for transit systems, the manner in which Pittsburgh is satisfying its mass transportation needs, and a report concerning the East-West Gateway survey of transportation requirements.

An airport-planning symposium was held in May, 1968, with 140 people in attendance representing governmental agencies, consulting engineering firms, architects, manufacturers, students and airlines. The presentation included the expected future of aviation, the vehicles that will be used in the near future, the requirements of general aviation, the facilities necessary at an airport to serve this rapidly-growing industry, the manner of financing and managing airports, and what St. Louis is currently doing to provide the best possible service for its citizens.

In November, 1968, a Water Quality for Tomorrow symposium was held and was co-sponsored by the League of Women Voters of Missouri, the University of Missouri at Columbia and the Engineers’ Club. Two hundred and twenty-seven people attended, including businessmen, engineers, college professors, governmental agency personnel, union personnel, representatives of the press, legislators, League of Women Voters and other civic organizations including 26 students from Eden Theological Seminary. The object of the symposium was to inform and interest the citizens of this area in the present use of our waters, the consequence of such use, and the public planning needed to improve water quality through the responsible governmental agencies. The role of the individual citizen was emphasized.

In April, 1969, a Solid Waste Disposal symposium was held which was intended to focus discussion of the problems of refuse collection and disposal not only for members of the Club but also for interested citizens of St. Louis. One hundred twenty people attended. Presentations were made by the Refuse Commissioner of the city of St. Louis, the Director of the Division of Air Pollution Control of St. Louis county, and the Executive Director of the Southwestern Illinois Metropolitan Area Planning Commission, and by a representative of the United States Public Health Service.

In April, 1970, a Pre-stressed Concrete Design seminar was held, sponsored by the Portland Cement Association with about 100 people in attendance at each session.

In 1963, ’64, ’65, ’67, and '68 a series of practical instructional courses was presented at the Club under the sponsorship of the St. Louis section of the American Society of Civil Engineers. These courses covered such topics as “The Business Aspects of Engineering”; “Building Codes, Whys and Wherefores”; “Design and Construction of Multi-Story Buildings”; “Design With Computers”; “The What and Why of Soil Investigations” and “The Critical Path Methods of Work Scheduling.” Approximately 100 engineers and architects attended each of these courses, with from six to twelve instructors in each course.

The Club mailed announcements of these meetings to a broad list of organizations including the Chamber of Commerce list of major employers, Mayors and Chief Engineers of all municipalities in the area, the East-West Gateway Coordinating Council mailing list, League of Women Voters, Engineers’ Club mailing list and all news media.

Article X, § 6, of the 1945 Constitution of Missouri (as amended in 1972) provides, in part, that: “ . . . all property, real and personal, not held for private or corporate profit and used exclusively . for purposes purely charitable may be exempted from taxation by general law.”

Section 137.100 (as amended in 1959), implementing the constitutional provision, provides, in part, that: “The following subjects are exempt from taxation for state, county or local purposes: All property, real and personal actually and regularly used exclusively . . . for purposes purely charitable and not held for private or corporate profit . . .”

The city does not contend that the property is used or held for private or corporate profit; nor does it question the fact that the Engineers’ Club is a not-for-profit corporation. Its basic contention is that the property is not used exclusively for purely charitable purposes.

Although each tax exemption case is peculiarly one which must be decided on its own facts, Midwest Bible & Missionary Inst. v. Sestric, 364 Mo. 167, 260 S.W.2d 25 (1953), there are rather fixed guidelines for doing so, as established by judicial precedents. Some of the more basic ones are herewith noted.

Missouri does not follow the partial-exemption theory, and if any part of the property is used for a non-charitable purpose the whole is taxable. Evangelical Lutheran Synod, etc. v. Hoehn, 355 Mo. 257, 196 S.W.2d 134, 145 (1946), Missouri Goodwill Industries v. Gruner, 357 Mo. 647, 210 S.W.2d 38, 39 (1948). Tax exemption statutes are to be strictly but reasonably construed so as not to curtail the purpose and intended scope of the exemption. Bader Realty & Investment Co. v. St. Louis Housing Authority, 358 Mo. 747, 217 S.W.2d 489, 492 (1949). The burden is on the owner, claiming that his property is exempt, to establish that his property falls within the exempted class. National Cemetery Ass’n of Missouri v. Benson, 344 Mo. 784, 129 S.W.2d 842, 845 (1939).

The parties agree that this case, as others have, must turn on whether or not it reasonably can be concluded that the property is regularly used “exclusively” for “purposes purely charitable” as those terms have been refined by the case law of this state.

We consider the latter term first and note a portion of appellant’s arguments. Attention is called to the early case of The State v. Academy of Science, 13 Mo.App. 213 (1883), wherein the court, l.c. 216, said: “A gift designed to promote the public good by the encouragement of learning, science, and the useful arts, without any particular reference to the poor, and any gift for a beneficial public purpose not contrary to any declared policy of the law, is a charity.” A similar definition formed by this court in Missouri Historical Society v. Academy of Science of St. Louis, 94 Mo. 459, 8 S.W. 346, 348 (1888) is noted, and it is then acknowledged that: “There was a point at which the courts in our state undertook to withdraw to some extent from the broad early construction of the statute, State ex rel. Koeln v. St. Louis Y.M.C.A., 259 Mo. 233, 168 S.W. 589 (1914); State ex rel. St. Louis Y.M.C.A. v. Gehner, 320 Mo. 1172, 11 S.W.2d 30 (1930), and St. Louis Y.M.C.A. v. Gehner, 329 Mo. 1007, 47 S.W.2d 776 (1932); Young Women’s Christian Ass’n v. Baumann, 344 Mo. 898, 130 S.W.2d 499 (1939).” It is then submitted that whether or not Missouri would take a restricted view of the words “used exclusively for charitable purposes” was set to rest by this court in Salvation Army v. Hoehn, 354 Mo. 107, 188 S.W.2d 826 (1945). Therein, the court returned to a less restrictive approach, and at l.c. 830 said:

“In the case of In re Rahn’s Estate, 316 Mo. 492, loc. cit. 511, 291 S.W. 120, loc. cit. 128, 51 A.L.R. 877, the court quoted with approval from R.C.L., Secs. 2, 3, pp. 291, 294, as follows:
“ ‘Probably the most comprehensive and carefully drawn definition of a charity that has ever been formulated is that it is a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government. * * * A charity may restrict its admissions to a class of humanity, and still be public; it may be for the blind, the mute, those suffering under special diseases, for the aged, for infants, for women, for men, for different callings or trades by which humanity earns its bread, and as long as the classification is determined by some distinction which involuntarily affects or may affect any of the whole people, although only a small number may be directly benefited, it is public.’ See also, Robinson et al. v. Crutcher et al., 277 Mo. 1, loc. cit. 8, 209 S.W. 104; Catron et al. v. Scarritt Collegiate Institute et al., 264 Mo. 713, loc. cit. 725, 175 S.W. 571, 573.”

The definition last quoted, although expressed in various words by different writers, remains as the basic and accepted connotation to be drawn from the words— “charitable purposes” — in this state. Missouri Digest, Charities, and Note 3 of Supplementary Index to § 137.100, V.A. M.S.

There yet remains the more difficult task of considering the facts of this particular case in light of such a definition. After so doing, the trial court declared that: “The Engineers’ Club, however, has failed to sustain the burden of establishing that such activities relieve society or the governmental agencies involved of any burden otherwise imposed upon them.” The conclusion reached is based obviously on that part of the above quoted definition which includes the words: “or otherwise lessening the burdens of government.” It would appear, as appellant suggests, that the trial court placed too restrictive and literal an interpretation on that portion of the definition. Although government provides many engineering schools, it is undoubtedly true that the Engineers’ Club in question would not have been provided by any governmental unit, absent such a project by appellant. To establish a tax-exempt status, however, the property owner need not prove that the specific activity or project was one which government had a burden to provide. For instance, this court in St. Louis Council, Boy Scouts of America v. Burgess, 240 S.W.2d 684 (Mo. banc 1951), held to be tax exempt, under the charitable purposes test, 1170 acres of land owned by the St. Louis Council and used on weekends by boy scouts for nature trips and camping. No suggestion was made that the property owner had to show that its effort relieved government of a specific burden, i. e., provide a camping ground for boy scouts. To the contrary, it is only necessary that there be a clear and convincing showing that the specific activity in question does fall within an accepted category found in the definition. Of those, “education” has been explicitly and firmly established as one by the case law of this state. Had the people of Missouri or the legislature become dissatisfied with including the same within the definition of charity, they long since would have repealed the constitutional provision or amended the statute. It is of some significance that neither has taken place although, as previously noted, each recently has been amended. Education is an accepted burden of government and society, and there is no logical reason to make an exception for specialized or advanced education as distinguished from more elementary approaches. Both are essential to the preservation of our way of life in this state and nation. Furthermore, there is nothing in the constitutional exemption, the statutory implementation thereof or the case law construing the same which indicates that academic pursuits must be conducted at a level of mediocrity to qualify for the tax exemption authorized. There should not be a penalty placed on the pursuit of excellence in the engineering field —or any other, so long as the same is open to the public for its participation and benefit in an educational sense. Failure to allow the public to participate, and thus have an opportunity to benefit directly, can defeat a claimed tax-exempt status. In Frisco Employes’ Hosp. Ass’n v. State Tax Comm., 381 S.W.2d 772, 779 (Mo.1964), exemption was denied because “ . the facilities of appellant’s hospital are available only to members of appellant association.” Likewise, the same result was reached in Trustees of Local 88, Etc. v. State Tax Commission, 367 S.W.2d 549 (Mo.1963). The facts of the instant case are to the contrary.

Next, respondents concede that: “The appellant has offered substantial evidence of the many contributions that it makes to society in general and to the Metropolitan St. Louis Area in particular. These contributions are in the area of education, advancement of science and civic endeavors. These contributions have not been disputed and are not in issue.” However, it is then asserted “ . . . that the primary reason that á member of a profession joins an organization such as the Engineers’ Club is to derive a benefit to himself either directly by his own participation in its activities or indirectly through the advancement of his profession.” Such a contention is recognized as the quid pro quo argument. In other words, it is submitted that appellant’s activities are self-serving and designed to promote the personal welfare and economic advantages of its own members in the profession of engineering. This argument appears in most every case on the subject. It is answered in each instance by the facts of the particular record. For example: (1) a medical society was denied exempt-status in Hammerstein v. Kelley, 235 F.Supp. 60 (E.D.Mo.1964), affirmed at 349 F.2d 928 (8th Cir. 1965); whereas, (2) a lawyers’ association was approved for exempt-status in St. Louis Union Trust Co. v. United States, 374 F.2d 427 (8th Cir. 1967). Certainly it would not be logical to contend that a member of any intelligent group, be it professional or otherwise, would not personally improve himself by participating in any type of educational activity. However, the controlling factor is the extent to which such activity is designed to benefit the public and society in general. From all of the cases cited and researched on the question, the facts of this case reflect the most consistent and dedicated effort to see that the benefit to be derived from such scholarly endeavors, in fact, would flow directly to the general public. On the facts presented, it is both reasonably and legally permissible to conclude, as we do, that the questioned property was being used primarily for a charitable purpose.

Next, was it so used “regularly” and “exclusively” ? On this point, respondents make two contentions in addition to the quid pro quo argument just considered. First, it is submitted that “the use of the property for purely social activities destroys its use for exclusively charitable purposes.” All of such social activities have been detailed heretofore and need not be repeated. It is sufficient to say that they were very limited and inconsequential in nature; and, in passing, it is fair to suggest that social activities, so long as they do not become the dominant factor, would tend to make the group more enthusiastic and cohesive in carrying out the primary objective. See Cooley Taxation, 4th Ed., Vol. 2, Sec. 675, p. 1433. Second, “the rental income derived from the use of the property destroys the claim for exemption.” The two cases cited on this point, Fitterer v. Crawford, 157 Mo. 51, 57 S.W. 532 (1900) and St. Louis Gospel Center v. Prose, 280 S.W.2d 827 (Mo.1955), are not comparable factually. Here, such charges were not for profit and were based on a theory of reimbursement only.

The cause is reversed and remanded with directions to enter judgment in favor of The Engineers’ Club of St. Louis.

PER CURIAM:

The Division Two opinion by MORGAN, J., is adopted as the opinion of the Court en Banc.

SEILER, C. J., and MORGAN, BARD-GETT, FINCH and DONNELLY, JJ„ concur.

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

HOLMAN, J., dissents and concurs in separate dissenting opinion of HENLEY, J.

HENLEY, Presiding Judge.

I respectfully dissent.

In Salvation Army v. Hoehn, et al., 354 Mo. 107, 188 S.W.2d 826, 830 [6] (1945), the court, en banc, held that the words “used exclusively” appearing in what is now article X, § 6, of the constitution of Missouri, and § 137.100, RSMo 1969, have reference to the primary and inherent use as distinguished from a secondary and incidental use. See also: Frisco Employes’ Hospital Ass’n v. State Tax Commission, 381 S.W.2d 772, 779 (Mo.1964).

The present day concept of the words “purposes purely charitable” is expressed in Salvation Army v. Hoehn, supra, and Missouri Goodwill Industries v. Gruner, 357 Mo. 647, 210 S.W.2d 38 (1949). In Gruner, supra, the court said (l.c. 40) that the term “charity” is not confined “solely to the relief of the destitute,” but also includes “humanitarian activities * * * which are intended to improve the * * * mental * * * condition of the recipients and make it less likely that they will become burdens on society and make it more likely that they will become useful citizens.”

The accepted definition of charity, quoted in the principal opinion, embraces not only a gift but also a use of property which bestows the benefits of education directly upon an indefinite portion of the public. Of course, not all uses of property for educational purposes may be characterized as being for purposes purely charitable. The use of property of a private organization or club of professional men for educational purposes may be characterized as charitable for purposes of tax exemption if the primary purpose of that use is for the benefit of the general public and its use by members of the club merely the means adopted to support the primary purpose. But if the primary purpose of the use is to benefit its members or a limited class of persons it may not be so characterized, even though the public will derive an incidental benefit therefrom. Massachusetts Medical Society v. Assessors of Boston, 340 Mass. 327, 164 N.E.2d 325, 328 [3] (1960).

Viewed in the light of these principles, I am of the opinion that the decision of the trial court was clearly right. As indicated, one of the uses made of its Club building by the Engineers’ Club is for educational purposes during a part of the year. The programs presented at Club meetings are technical in nature and a stated objective of these programs is to enable specialists to learn to communicate with specialists in their own and allied fields. The symposiums and seminars conducted by the Club alone or with others on such subjects as mass transportation, airport planning, water quality, waste disposal and pre-stressed concrete design are no doubt educational and of benefit to members of the Club and, in general, to those other engineers and persons specializing in or otherwise associated with businesses engaged in these particular fields of engineering. Although it is said the general public is invited to these meetings, symposiums and seminars, the very nature of the programs presented would tend to discourage, and probably effectively exclude, the attendance of the public in general. Clearly, the programs are not so designed and attuned as to attract and encourage their attendance. It may not be said, in my opinion, that these uses of the Club property are primarily for the direct benefit of the public. On the contrary, its use is primarily for the benefit of Club members and others having closely allied interests, “a limited class of persons.”

The education-oriented uses made of the property by the Club are praiseworthy in that their purpose is to advance the knowledge and skills of members of engineering and related professions by continuing their education. No doubt a better informed and prepared group of professionals is of benefit to the public, but in this case it is an indirect and purely incidental benefit.

For these reasons, I would hold that the uses made of this property were not exclusively for purposes purely charitable, and that it is not exempt from ad valorem taxes levied for the year 1970.

      . References to statutes are to RSMo 1909 and V.A.M.S.

      . References to rules are to Missouri Su preme Court Rules, V.A.M.R. See also §§ 536.100-536.140, RSMo 1969.