author: HENLEY, Judge. FINCH, Judge

text:
    Arthur L. MALLORY et al., Plaintiffs-Respondents, v. Anna BARRERA et al., Defendants-Appellants.
    No. 59219.
    Supreme Court of Missouri, En Banc.
    Dec. 30, 1976.

      Thomas M. Sullivan, Kansas City, Louis C. Defeo, Jr., Jefferson City, for defendants-appellants.
    Harry D. Dingman, Kansas City, for plaintiffs-respondents.
    G. Dennis Sullivan, Kansas City, for ami-cus curiae.
   HENLEY, Judge.

This is a declaratory judgment action brought by the Commissioner of Education of Missouri (State Commissioner) and the Missouri State Board of Education (State Board) (the plaintiffs) against Anna Barrera, et al. (defendants), parents of students attending elementary or secondary parochial schools in Kansas City, Missouri, seeking resolution of these two questions:

1. Whether funds paid to the State of Missouri by the United States under the provisions of Title I of the Elementary and Secondary Education Act of 1965 (hereinafter the Act or ESEA or Title I) are public funds subject to spending proscriptions of the laws of Missouri.

2. Whether Missouri law prohibits, permits or requires the use of public school personnel paid with Title I funds to provide teaching services to private school children on the premises of private (sectarian and nonsectarian) schools during regular school hours.

Plaintiffs do not bring this action against the defendants as members and representative parties of all of a class; on the contrary, plaintiffs’ petition explicitly disavows any purpose of making this a class action, the result of which would be binding upon anyone other than the named parties.

In a counterclaim seeking relief in the event the court should hold that Title I funds are public funds subject to the spending proscriptions of the laws of Missouri, defendants prayed that the court by its judgment:

1. Declare that no part of Title I funds paid to the state may be used to provide educational equipment or materials or other services or benefits for children attending nonpublic schools.

2. Enjoin plaintiffs, and those under their control, from participating in Title I, ESEA projects and from providing assurances required by the ESEA to the U.S. Commissioner of Education (hereinafter Federal Commissioner).

Judgment was for plaintiffs and against defendants on the plaintiffs’ claim and on the defendants’ counterclaim. Defendants appealed. We affirm.

Title I of the Act is a federal program authorizing financial aid “to local educational agencies [of the states] serving areas with concentrations of children from low-income families” to enable those agencies to “expand and improve their educational programs by various means * * * which contribute particularly to meeting the special educational needs of educationally deprived children” attending elementary and secondary schools, both public and private, in those areas.

The Act is designed to be administered by local and state public education officials. The administrative structure set up by the Act places primary responsibility for planning, designing and carrying out a Title I program upon the local education agency. The proposed program planned and designed by the local agency is then submitted to the state educational agency for its approval. If approved, the state agency then forwards the proposal to the Federal Commissioner for his approval. If the proposal is approved by him, the Federal Commissioner is authorized to “pay to * ⅜ * [the] State * * * the amount which it and the local educational agencies of that State are eligible to receive under * ⅜ * [approved proposals].” 20 U.S.C., § 241g(a)(l). The state educational agency is required to distribute these funds to its local educational agencies. 20 U.S.C., § 241g(a)(2). In order to receive state approval, the proposal of the local agency must be designed to provide, among other requirements, that eligible children enrolled in private schools have the opportunity to participate in Title I programs comparable to those provided like children in the public schools of its area. 20 U.S.C., § 241e(a)(2); 45 CFR, § 116.19.

This case may be said to be a “spinoff” from Wheeler v. Barrera, 417 U.S. 402, 94 S.Ct. 2274, 41 L.Ed.2d 159 (1974), another round of the “apparently endless legal battle” over Title I funds spoken of in the first sentence of Barrera v. Wheeler, 531 F.2d 402 (8th Cir. 1976) involving these same defendants on one side and the State Commissioner and State Board on the other. Defendants’ primary complaint, manifest in each round of this conflict, is and has been that plaintiffs have failed and refused to approve plans and proposals that would employ the use of teachers, paid with Title I funds, on private school premises during regular school hours; that plaintiffs have thereby arbitrarily and illegally deprived the parochial school children of these defendants and other eligible nonpublic school children of services comparable to those afforded eligible public school children.

The position of the State Commissioner and State Board is and has been that the Missouri Constitution and statutes and the First Amendment of the United States Constitution forbid their approval of any proposed Title I program which would authorize the use of publicly-funded teaching personnel on the premises of nonpublic schools, and that Title I did not require such approval.

Addressing itself to the 1973 decision of the court of appeals in Barrera v. Wheeler, supra, the Supreme Court of the United States said in Wheeler v. Barrera, supra:

“At the outset, we believe that the Court of Appeals erred in holding that federal law governed the question whether on-the-premises private school instruction is permissible under Missouri law. Whatever the case might be if there were no expression of specific congressional intent, Title I evinces a clear intention that state constitutional spending proscriptions not be pre-empted as a condition of accepting federal funds. The key issue, namely, whether federal aid is money ‘donated to any state fund for public school purposes,’ within the meaning of the Missouri Constitution, Art. 9, § 5, is purely a question of state and not federal law. By characterizing the problem as one involving ‘federal’ and not ‘state’ funds, and then concluding that federal law governs, the Court of Appeals, we feel, in effect nullified the Act’s policy of accommodating state law. The correct rule is that the ‘federal law’ under Title I is to the effect that state law should not be disturbed. If it is determined, ultimately, that the petitioners’ position is a correct exposition of Missouri law, Title I requires, not that that law be preempted, but, rather, that it be accommodated by the use of services not proscribed under state law. The question whether Missouri law prohibits the use of Title I funds for on-the-premises private school instruction is still unresolved.” 417 U.S. at 416-419, 94 S.Ct. at 2283.

The court noted in Wheeler v. Barrera, supra, the decision of this court in Special District v. Wheeler, 408 S.W.2d 60 (banc, 1966) (one of the authorities plaintiffs have relied upon in support of their position), but observed that that case did not involve federal financial aid. In Special District, we held, inter alia, that “[t]he use of public school funds for the education of pupils in parochial schools is not for the purpose of maintaining free public schools” within the meaning of Mo.Const. Art. IX, § 5, and § 166.011, RSMo 1969. See also: McVey v. Hawkins, 364 Mo. 44, 258 S.W.2d 927 (Mo. banc 1953).

The question whether the use of public funds in aid of parochial school students and schools violated Mo.Const. Art. I, § 7, or the Establishment Clause of the First Amendment was not presented in Special District. Although the First Amendment question was presented in Wheeler (417 U.S. at 415, 94 S.Ct. 2274) the court did not reach and decide it. However, less than a year later, that court did decide a similar First Amendment question in Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), a case involving a Pennsylvania statute, the stated purpose and certain provisions of which are analogous to those of Title I, ESEA. Barrera v. Wheeler, supra, 531 F.2d at 405. The court held in Meek that the Pennsylvania law’s provisions for supplying publicly-employed teachers to provide instruction on the premises of sectarian schools violated the constitutional prohibition against laws “respecting an establishment of religion,” because of the apparent “potential for political entanglement, together with the administrative entanglement which would be necessary to ensure that auxiliary services personnel remain strictly neutral and nonideo-logical when functioning in church-related schools * * *.” 421 U.S. at 367-372, 95 S.Ct. at 1767. See also: Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).

As it relates specifically to education, the public policy of this state, as expressed in its constitution and statutes, is: that free public schools shall be established and maintained by the state for all persons within certain ages; that no public funds shall be used in aid or support of any school controlled by a sectarian denomination; that the public schools shall be under the supervision of the State Board. The State Board, charged with the responsibility of carrying out the educational policies of the state, may not permit or require the use of any public funds for any purpose proscribed by state law.

Title I funds are obviously “public” funds. Speaking of these funds as “federal” to distinguish them from “state” funds does not alter their character as public funds. Nor does the fact that this is “federal aid” make it any the less public funds.

We are inclined to the view, and hold, (1) that when these funds are paid to the state, as required by the Act (20 U.S.C., § 241g(a)(1)), they must be deposited in the state treasury; (2) that when so deposited, these funds are held by the state in trust for the uses and purposes specified in the Title I program approved by the Federal Commissioner, and may be appropriated and used by the state for such of those purposes as are not proscribed by the laws of this state; (3) that that part of these funds in a Title I project which has been approved by the Federal Commissioner for use in a free public school is “money donated to [a] state fund for public school purposes” within the meaning of the laws of Missouri; (4) that the use of any part of Title I funds by the state to provide teaching services to elementary and secondary school children on the premises of parochial schools would constitute the use of public funds (a) in aid of a denomination of religion proscribed by Art. I, § 7; and (b) to help to support or sustain a school controlled by a sectarian denomination proscribed by Mo.Const. Art. IX, § 8. Harfst v. Hoegen, 349 Mo. 808, 163 S.W.2d 609, 613-614 [8, 10] (Mo.banc 1942); Berghorn v. Reorganized School District No. 8, 364 Mo. 121, 260 S.W.2d 573, 582-583 (1953); Paster v. Tussey, 512 S.W.2d 97 (Mo.banc 1974).

Defendants suggest, and ask this court to hold, that a trust agreement method, the theory of which they say has been approved in Board of Public Buildings v. Crowe, 363 S.W.2d 598 (Mo.banc 1962) and in cases therein discussed, could be utilized to create a special trust fund, separate and apart from the state treasury, with the state Treasurer or other state officers as trustee, to receive, hold, disburse and account for Title I funds in accord with the Act and thereby avoid the fiscal scheme created by the Missouri Constitution, especially its spending proscriptions.

We recognize and approve the holdings in Crowe, supra, and cases discussed therein, based, as they are, on their particular facts. However, we note that they did not involve, as this case does, the use of public funds for purposes proscribed by the state constitution.

We note, too, that we are not, in fact, presented with a justiciable issue as to whether a trust agreement and fund may be utilized to receive, hold and disburse Title I funds, because such an agreement for those particular purposes, and all the issues it might well present are foreign to the pleadings in this case. Defendants’ “suggestion” that such a fund “could be” utilized does not present us with a live, contested - trust agreement to which we could apply a decision; they present only a subject with which they ask us to deal in the abstract and, with that accomplished, they ask us to render a decision which could be advisory only. We decline to indulge in that fruitless exercise.

Defendants call attention to that part of § 38(a) of Art. III of the Constitution which provides that money may be received by the state from the United States and distributed for any public purpose designated by the United States. They assert that the furnishing of public school personnel to provide teaching services to eligible children on the premises of parochial schools has been designated by the United States as a public purpose for which Title I funds may be used. Therefore, argue defendants, these funds may be expended by the state for this purpose notwithstanding other provisions of our constitution which specifically proscribe the use of public funds therefor.

We question the validity of the premise asserted by defendants that on-the-premises parochial school instruction has been, with authority, designated a purpose for which Title I funds may be used, particularly in view of Meek v. Pittenger, supra. But, we do not base our decision on First Amendment grounds; we base it on the provisions of the constitution of this state.

We disagree with defendants’ argument that § 38(a) authorizes the state to expend Title I funds for on-the-premises parochial school instruction notwithstanding other provisions of our constitution which specifically proscribe the use of public funds for that purpose. Section 38(a) authorizes the state to receive and disburse these funds for a public purpose designated by the United States, but it does not authorize or require their use for a purpose so designated which is prohibited by other provisions of our constitution, such as Art. I, § 7, and Art. IX, § 8.

As to defendants’ counterclaim, there is evidence (1) that “Title I funds are used [by the state] to provide certain textbooks and library books and reading materials sent in to the nonpublic schools * * ” and (2) that Title I funds have been approved by the state for use “to transport the nonpublic school child from the nonpublic school to the public school for * * * after school services or Saturday services * * *.” Clearly, the use by the state of public funds to provide textbooks (Paster v. Tussey, 512 S.W.2d 97, 104 (Mo.banc 1974)) for use in parochial schools, or to provide transportation (Mo.Const. Art. IX, § 8; McVey v. Hawkins, 364 Mo. 44, 258 S.W.2d 927 (Mo.banc 1953)) for parochial school students, is impermissible under the constitution of this state.

This and other evidence to which defendants refer, developed in cross-examination of one of plaintiffs’ witnesses, is, as we understand it, presented in the context of what had been approved by the state in previous plans according to the State Board’s understanding of what was “ap-provable” under the Act and Missouri law and what had been approved by the state in the present plan according to the State Board’s understanding of what was “ap-provable” under the Act and decisions of federal courts. It is not at all clear from the testimony of this witness whether he was speaking of previously-approved plans which had been “disapproved” by the federal courts or the present existing plan when he referred to (1) funds used for books and other materials, and (2) funds approved for use for transportation.

We conclude that there is no substantial evidence in this record to support the injunctive relief sought by defendants.

The trial court did not err in denying the rather broad declaratory relief sought by defendants, and we decline to do so, because what is said herein is sufficient to dispose of the issues raised in both the petition and the counterclaim.

The judgments on plaintiffs’ claim and defendants’ counterclaim are affirmed.

SEILER, C. J., and MORGAN, HOLMAN and DONNELLY, JJ., concur.

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

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

FINCH, Judge

(dissenting).

I respectfully dissent. I would hold that money received by the State of Missouri from the federal government under the provisions of Title I of the Elementary and Secondary Education Act of 1965 (hereinafter Title I) for use in meeting the special educational needs of educationally deprived children in areas with a concentration of children from low-income families does not become “money donated to a state fund for public school purposes” or “public funds” of Missouri subject to the spending proscriptions of the Missouri Constitution applicable to funds properly so classified.

The conclusion in the principal opinion that Mo.Const. Art. I, § 7, Art. IX, § 5, Art. IX, § 8, and perhaps other sections thereof, are applicable to the use of these Title I funds is based on its holding that when received and deposited in the state treasury, they lose their character as federal funds granted to the state for redistribution for the specific purposes for which they were awarded and assume the character of state funds subject to all of the restrictions and limitations imposed by the Missouri Constitution on the appropriation and use of regular state public funds. In so deciding, the principal opinion first finds that such Title I funds constitute “money donated to a state fund for public school purposes”. The quoted words are contained in Mo.Const. Art. IX, § 5, and it is obvious from the opinion, as well as from respondents’ brief wherein this proposition was advanced, that under the principal opinion these Title I funds are subject to Art. IX, § 5. However, the principal opinion overlooks the fact that if this were true, said constitutional provision would require that such Title I funds be invested and only the income therefrom used. Such utilization of this money would not be in accord with Title I and is not how these funds actually are handled. I submit that these Title I funds are not subject to Art. IX, § 5, because they are not “money donated to a state fund for public school purposes”. Instead, they are funds granted the respondents for distribution to local educational agencies for use in a plan which, as the principal opinion recognizes, “must be designed to provide * * * that eligible children enrolled in private schools have the opportunity to participate in Title I programs comparable to those provided like children in the public schools of its area”.

The principal opinion also speaks of these Title I funds becoming “public funds” of Missouri, but I find no authority cited which compels or even supports that conclusion. The legislature has not so treated them. Instead, it has recognized that these Title I funds remain federal funds which are received by respondents for the purpose of being distributed and used in accordance with the terms of the Act. To illustrate, an appropriation bill covering appropriation of these funds to the State Board of Education provided as follows:

“Section 2.360. To the State Board of Education
All allotments, grants and contributions of funds from the federal government, paid into the State Treasury under the provisions of the Elementary Secondary Act, Title I, II and VI for the purpose of administration and distribution to schools

From Federal Funds” Laws 1969, p. 10. Obviously, the legislature did not consider that when these Title I funds were received from the federal government and placed in the state treasury they were thereby converted to general state public funds. They were not so appropriated.

That there is a distinction between state funds and federal money received and distributed by the state (as in the case of Title I funds) and that such federal funds are not subject to constitutional constraints imposed by the Missouri Constitution on Missouri public funds is made crystal clear by Art. III, § 38(a) of the present Missouri Constitution which provides as follows:

“The general assembly shall have no power to grant public money or property, or lend or authorize the lending of public credit, to any private person, association or corporation, excepting aid in public calamity, and general laws providing for pensions for the blind, for old age assistance, for aid to dependent or crippled children or the blind, for direct relief, for adjusted compensation, bonus or rehabilitation for discharged members of the armed services of the United States who were bona fide residents of this state during their service, and for the rehabilitation of other persons. Money or property may also be received from the United States and be redistributed together with public money of this state for any public purpose designated by the United States.”

During extended debate in the constitutional convention on this section, there was an attempt to delete by amendment what is now the last sentence of Art. III, § 38(a). It is apparent from those proceedings that the sponsors of what is now the second sentence of § 38(a) intended thereby to recognize that money would be available to the state from the federal government for redistribution and use for purposes specified by the federal government, some of which might not even be foreseeable at the time of the constitutional convention and which might even be impermissible by means of state funds, and that it was intended by the second sentence of § 38(a) to permit the state to receive and redistribute such federal funds for the purposes specified by the federal government. Receipt thereof is not made mandatory, of course, and the state would be free to decline to accept them. If accepted, however, the distribution of those federal funds was not to be subject to limitations imposed by the Missouri Constitution on the appropriation and use of Missouri’s own public funds.

This court has recognized that funds received for a specific purpose but deposited in the state treasury do not thereby automatically become money “belonging to the state” or state funds which are subject to constitutional proscriptions as to its use. In State ex rel. Stevenson v. Stephens, 136 Mo. 537, 37 S.W. 506 (1896), the question was whether $100,000 deposited in the state treasury for the narrow purpose of protecting investors in certain companies was money “belonging to the state” and, hence, subject to various constitutional restrictions such as those relied upon by respondents herein. A state statute required that such funds be deposited with the state treasurer. Holding that these funds were not state funds subject to constitutional limitations, the court, in discussing constitutional provisions alleged to be applicable, said at 509:

“It is manifest that these provisions only apply to money ‘belonging to the state.’ The money in question, though it was deposited with the treasurer, was for the specific purpose of making good the security intended for the protection of those dealing with bond investment companies, and was not money belonging to the state, within the meaning of the constitution.”

See also Board of Public Buildings v. Crowe, 363 S.W.2d 598 (Mo.banc 1962); State ex rel. St. Louis Police Relief Ass’n v. Igoe, 340 Mo. 1166, 107 S.W.2d 929 (1937); State ex rel. Thompson v. Board of Regents, 305 Mo. 57, 264 S.W. 698 (banc 1924).

That there is a difference between state funds and federal funds earmarked for specific purposes which the state receives and distributes is implied by the language used by this court in its opinion in Paster v. Tussey, 512 S.W.2d 97 (Mo.banc 1974), when it said at 105: “This case involves the expenditure of ‘state’ funds and not the expenditure of ‘federal’ funds.” If, as the principal opinion concludes, Title I federal funds become state funds when received and deposited in the state treasury, there would have been no occasion for a comment such as that made in Paster.

As previously indicated, in my view it is clear that even without Art. III, § 38(a) these federal funds, received for distribution and use in accordance with Title I, do not become public funds of Missouri and are not subject to constitutional constraints imposed on the appropriation and use of Missouri’s own public funds. This conclusion is made even more inevitable by the last sentence of Art. II, § 38(a), when, as here, we deal entirely with federal funds. I should point out that in so concluding, I would not reach or express any opinion on whether that sentence would have the effect of freeing “public money of this state”, when added to federal money, from other constraints contained in the Missouri Constitution. That question is not before us in this case as we deal with Title I funds only. Such an issue can be briefed and decided if and when a case involving that issue is presented. I would hold only that Art. III, § 38(a) permits receipt and distribution of federal money free of constraints imposed by our constitution on the use of Missouri’s public funds.

Having concluded that Title I funds do not become “state funds” or “money donated to a state fund for public school purposes” and are not subject to the constraints of the Missouri Constitution on state public funds, I would so tell the respondents in their declaratory action. I would rule that they are free to implement a plan for administering Title I funds pursuant to the requirements of that act without being bound by the restrictions imposed by the Missouri Constitution on the use of Missouri’s public funds. As pointed out in Wheeler v. Barrera, 417 U.S. 402, 94 S.Ct. 2274, 41 L.Ed.2d 159 (1974), modified, 422 U.S. 1004, 95 S.Ct. 2625, 45 L.Ed.2d 667 (1975), and in Barrera v. Wheeler, 531 F.2d 402 (8th Cir. 1976), it is incumbent on Missouri, and more particularly respondents, to devise a program which will provide for private school children a program for utilization of Title I funds which is comparable to the program provided for public school children. Various possible alternatives are discussed in the foregoing decisions, the decision in the Eighth Circuit suggesting the possibility that abandonment of such program in Missouri may be necessary if satisfactory comparable programs cannot or are not devised. Of course, whether such plan, when proposed, complies with the requirements of Title I will continue to be, as it has been throughout this extended litigation, a federal question to be decided by the federal courts.

      . 20 U.S.C. § 241a, et seq.

      .“Local educational agency” is defined in 20 U.S.C., § 244(6)(B), as follows: “The term ‘local educational agency’ means a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State, or such combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary or secondary schools. Such term includes any other public institution or agency having administrative control and direction of a public elementary or secondary school * * See also 45 CFR, § 116.1(4) (1973).

      . The quotations are from 20 U.S.C., § 241a, declaring the policy of the United States.

      . A state educational agency is defined in 20 U.S.C. § 244(7), to mean “the officer or agency primarily responsible for the State supervision of public elementary and secondary schools.”

      . See also: Barrera v. Wheeler, 441 F.2d 795 (8th Cir. 1971); Barrera v. Wheeler, 475 F.2d 1338 (8th Cir. 1973).

      . Mo.Const. Art. IX, § 1(a).

      . Mo.Const. Art. IX, § 8.

      . Mo.Const. Art. IX, § 2(a); § 161.092(2), RSMo 1969.

      . See footnote 8.

      . Mo.Const. Art. III, § 36 provides, in part: “All * * * money received by the state shall go into the treasury * * * See also: Art. IV, § 15, providing, in part: “All * * * moneys received by the state from any source whatsoever shall go promptly into the state treasury, and all interest, income and returns therefrom shall belong to the state * * * .” See also: Art. IX, § 5, which provides, in part: “[A]ll moneys * * * donated to any state fund for public school purposes * * * shall be paid into the state treasury * * * See also: § 166.011, RSMo 1969.

      . Section 38(a) reads, in part, as follows: “Money or property may also be received from the United States and be redistributed together with public money of this state for any public purpose designated by the United States.”


source: Caselaw Access Project

author:
HENLEY, Judge.
      SEILER, Chief Justice BARDGETT, Judge

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Raymond L. TOLIVER, Appellant.
    No. 59464.
    Supreme Court of Missouri, En Banc.
    Dec. 30, 1976.

      C. B. Fitzgerald, Warrensburg, for appellant.
    John C. Danforth, Atty. Gen., Douglas G. Mooney, Asst. Atty. Gen., for respondent.
   HENLEY, Judge.

Defendant, Raymond L. Toliver, convicted of stealing over $50, was sentenced under the Second Offender Act to ten years imprisonment. On appeal, the Missouri Court of Appeals, Kansas City District, reversed and remanded. The case was transferred to this court pursuant to our order and is decided as on original appeal. We affirm.

The sufficiency of the evidence is not disputed, and from the record, the jury reasonably could have concluded as follows: shortly before 1:30 p. m. on September 13, 1973, defendant and Richard Stevenson entered a Wal-Mart store in Warrensburg, Missouri. Defendant was wearing “baggy” overalls. Both men went to the sporting goods department. Defendant enticed the only clerk of that department away from her post near the gun display case to discuss outdoor heaters, allowing Stevenson to crawl “on all fours” and remove from the case 10 handguns valued at more than $800, which he placed in an oil pan. Defendant and Stevenson met later at a vacant checkout counter near the exit, where some 30 seconds of “arm movement” between the two men indicated the contents of the oil pan were being transferred to defendant’s loosely-fitting clothing.

The two men left the store together and drove away in an automobile, which was later stopped by a state trooper who was reacting to a police radio bulletin concerning the alleged theft. Defendant had been driving about 80 m. p. h. with Stevenson and a man named Garner as passengers. After placing defendant under arrest for speeding and investigation of stealing over $50, the trooper gave defendant his “Miranda warnings,” although defendant assured the trooper it was unnecessary to do so, because he had done nothing wrong. A search of the car and its occupants produced no handguns. The group was taken to patrol headquarters in Lee’s Summit to be held for Warrensburg police, who were investigating the theft. At headquarters, Miranda warnings were read again and defendant was questioned about the theft. He denied the theft, saying he entered Wal-Mart to look for camping materials and had left when he could not find what he desired. When later taken to Warrensburg police headquarters, two more questioning episodes ensued preceded by Miranda warnings each time, but defendant made no statement. The three men were detained in the Johnson county jail over night, and the next day, September 14, 1973, they were charged with stealing over $50 and released on bond.

The first point we consider is defendant’s contention that the court erred in overruling his pretrial motion to suppress inculpa-tory statements made by him to officers of the Kansas City police department on November 22, 1973, because, he says, they did not inform him of his rights under the Fifth and Sixth Amendments of the United States Constitution as delineated in Miranda v. Arizona, 386 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

It is admitted by the State that the Miranda warnings were not given to defendant by the Kansas City police on the occasion of his statements to them that he and others were involved in the stealing of handguns from the Wal-Mart store in War-rensburg. The statements were made in the course of a general investigation of a Kansas City homicide which had been committed with a handgun having the same serial number as one of those stolen from the Wal-Mart store. Defendant, a resident of Kansas City and well known to its police, was not suspected of being involved in the homicide, although it was known that he had been charged in Johnson county with this stealing. Their inquiry of defendant was for the purpose of finding and identifying the killer by tracing this gun from defendant to the killer. Defendant told them that the guns had been taken to Kansas City where they were sold to a black man at a certain address for some dope. The purpose of the inquiry was not to secure evidence in support of the stealing charge. At the close of the motion to suppress hearing, the court remarked that “defendant had received the warning four times” from highway patrolmen and War-rensburg police only two months before, and, indicating that it was persuaded that defendant knew his “rights” when he made the statements, overruled the motion.

The testimony of the police officer at the trial before the jury was essentially the same as that heard by the court on the motion to suppress. Defendant made no objection to this testimony and participated in its presentation to the jury by his cross-examination. Defendant thus failed to keep alive and preserve for appellate review the question raised by his motion to suppress. State v. Yowell, 513 S.W.2d 397, 402-3[1, 2] (Mo.banc 1974) and cases collected therein. Our review of the briefs of the parties, the transcript of the evidence heard on the motion to suppress and the evidence at .the trial on the merits, leads us to the conclusion that manifest injustice or a miscarriage of justice has not resulted from the receipt of testimony relating defendant’s inculpatory statements made to the Kansas City police.

Another point raised by defendant is that the trial court erred in refusing to allow defendant’s counsel to comment adversely upon the State’s failure to produce a material witness endorsed on the information, namely, defendant’s accomplice, Stevenson. The State apparently pursued diligently all reasonable means to secure Stevenson’s presence but failed. He was no more “available” to the State than to defendant. State v. Collins, 350 Mo. 291, 165 S.W.2d 647, 648-649 (1942). In this situation, no unfavorable inference may be drawn from the State’s failure to produce Stevenson. The trial court did not err. State v. Houston, 451 S.W.2d 37, 39-40 (Mo.1970).

Defendant also contends that the court erred in overruling his pretrial motion which sought to limit the State’s cross-examination of him concerning his previous convictions in the event he should decide to take the stand. Defendant asserts that the court’s ruling deprived him of the right to make an intelligent decision before trial as to whether he should take the stand and subject himself and his testimony to an attack upon his credibility. Clearly, the State is entitled to inquire about prior convictions of a witness to affect his credibility. Section 491.050, RSMo 1969; State v. Busby, 486 S.W.2d 501, 503[1] (Mo.1972). The scope of such prior conviction inquiry is subject to the discretion of the trial judge to act, upon timely objection, to prevent probing of convictions for any purpose other than to affect the witness’s credibility. State v. Scott, 459 S.W.2d 321, 324[2] (Mo.1970). Defendant’s point is without merit.

Defendant further claims the trial court erred in overruling his motion to declare this court’s Rule 25.34 unconstitutional and in refusing to excuse him from compliance with the State’s request for disclosure of certain matters within the purview of the rule. The only information disclosed by defendant to the State as a result of this ruling was (1) the names and addresses of two witnesses (the sheriff and a deputy sheriff of Johnson county) he intended to call in his own behalf, and (2) that he did not intend to rely upon an alibi or a plea of not guilty by reason of mental disease or defect. Defendant has failed to show that he was prejudiced by operation of this rule; therefore, he lacks standing to challenge its constitutionality. State v. Brown, 502 S.W.2d 295, 305-306[20, 21] (Mo.1973); State v. Mucie, 448 S.W.2d 879, 886[1] (Mo.1970). The court did not err in requiring defendant to disclose this information to the State.

Defendant’s last point is that the court erred in ordering the 10 year sentence imposed by it be consecutive to a sentence he was then serving in the Kansas penitentiary, because, he contends, the court erroneously believed that under § 546.480, RSMo 1969, it had no discretion to impose a sentence that would run concurrently with the Kansas sentence. He argues that because of this error the judgment must be reversed and the case remanded so the trial court may exercise its discretion and resentence him.

He relies upon State v. Baker, 524 S.W.2d 122, 131[7] (Mo.banc 1975), which held that § 546.480 violated the equal protection clause of the Fourteenth Amendment of the Constitution of the United States. In that case there was a remand to the trial court for resentencing and the exercise of discretion by the trial judge as to whether the sentences imposed should be concurrent or cumulative.

The trial court’s reliance upon § 546.480 as authority or reason for its order that this sentence begin upon completion of the Kansas sentence was misplaced and, therefore, error. That section, during its life, applied only to sentences imposed by Missouri courts for convictions of two or more offenses against the laws of this state; it did not apply to sentences, one of which was imposed by a court of another state for an offense against its laws and another by a court of this state for an offense against Missouri laws.

Notwithstanding the fact that the reason stated for the court’s order is erroneous, the error is harmless and may be disregarded, because the Missouri sentence could not begin to run until defendant is released from the Kansas penitentiary and delivered to the custody of the Missouri department of corrections. Section 546.610; Jackson v. Kaiser, 353 Mo. 919, 185 S.W.2d 784, 787 (banc 1945); Higlin v. Kaiser, 352 Mo. 796, 179 S.W.2d 471, 472[1-3] (banc 1944). There is no statutory authority for a court of this state to order that a sentence imposed by it run concurrently with a sentence being served in another state. State v. Brager, 497 S.W.2d 181, 182-3[3] (Mo.1973); Richmond v. State, 484 S.W.2d 280, 282[3] (Mo.1972); Harkins v. Lauf, 532 S.W.2d 459, 461—463[1, 2] (Mo.banc 1976). Sentences to the penal institutions of different jurisdictions are, in the very nature of things, cumulative and not concurrent. Jackson v. Kaiser, supra, 185 S.W.2d at 786— 787[1—7]; Harkins v. Lauf, supra, at 463[2]. The error assigned by defendant did not prejudicially affect him and, under the facts and the law, a remand for resen-tencing would be futile and is not required.

The judgment is affirmed.

MORGAN, HOLMAN, FINCH and DON-NELLY, JJ., concur.

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

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

SEILER, Chief Justice

(dissenting).

I respectfully dissent for the following reasons. First, appellant’s self-incriminatory statements to the Kansas City police should not have been admitted into evidence because he was neither apprised of his rights to remain silent and to be represented by counsel, nor did he voluntarily waive these rights. Second, under the facts of this case we should not require objection before trial, at trial, and after trial in order to deem appellant’s objection to the admission of this testimony properly preserved. Last, I would hold that even if we find appellant’s objection not preserved, the trial court committed plain error in admitting the self-incriminatory statements.

In evaluating the need for the Kansas City police to have given appellant his Miranda warning, it seems to me the majority opinion is somewhat equivocal. On one hand, the opinion implies that because warnings were given by different police agencies some two months prior to the incident in question, appellant had sufficient knowledge of his rights at the time of questioning. On the other hand, the majority intimates earlier in the same paragraph that because the appellant was not under suspicion for the crime the Kansas City police were investigating, he was not in custody to an extent which would require giving a Miranda warning.

The idea that residual knowledge from a warning delivered to a suspect by the police at the time of an arrest several months earlier is sufficient was expressly disavowed by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 471-72, 86 S.Ct. 1602, 1626, 16 L.Ed.2d 694 (1966) wherein it was stated:

“[W]e hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation . . . . As with warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.”

Furthermore, I am unable to agree with the majority opinion’s view that appellant was not in custody to a degree which required a Miranda warning. It seems to me that clearly he was. The Supreme Court explained its holding in Miranda as follows:

“[T]he prosecution may not use statements, whether exculpatory or inculpato-ry, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

Miranda v. Arizona, supra, 384 U.S. at 444, 86 S.Ct. at 1612.

In the case before us, two officers, who knew that the appellant was charged with the theft of a gun which they had in their possession as the murder weapon in a homicide they were investigating, drove to appellant’s residence in an unmarked state highway patrol ear. According to their own testimony, upon arriving at appellant’s residence, they got out of the car, went up to the house, pounded repeatedly on the door, “I really whammed it”, and yelled for appellant to come out. The officers then placed appellant in the front seat of the car with one of the officers and a companion of appellant in the back seat with another officer. The two were driven downtown to police headquarters, separated from one another, and the appellant was questioned for one hour with three officers present. The foregoing hardly represents the general on-the-scene impromptu questioning the Supreme Court meant to leave unaffected by Miranda. It is true one of the detectives also testified that appellant simply accepted an “invitation” to go downtown to police headquarters and that he was free to go at any time, although no one informed him of that fact, but this uncommunicated, self-serving, subjective belief on the part of the police does nothing, in my opinion, to lessen the custodial aspects of defendant’s questioning. Appellant was deprived of his freedom in a significant way as contemplated by Miranda, and consequently, he has a right to Miranda warnings. Moreover, we have recognized the coercive atmosphere surrounding such police “requests”. In State v. Young, 425 S.W.2d 177, n. 4, (Mo.1968) we quoted with approval State v. Owens, 302 Mo. 348, 259 S.W. 100, 102 (banc 1924) to the effect that:

“. . . [i]f an officer appears at a person’s home, and in his official character demands the privilege of searching the premises, the owner of the premises who yields peaceably and silently to the official demand is as much under constraint as if he had forcibly resisted official interference.”

The same holds true for the police request here to go downtown. It was permeated with the coercive atmosphere presented by the apparent force of law. That required a Miranda warning be given.

The majority cites State v. Yowell, 513 S.W.2d 397 (Mo.banc 1974) for the proposition that the appellant, by neglecting to raise an objection at trial to the admission of his self-incriminatory statements to the Kansas City police, has failed to preserve this question for appellate review. Yowell explains, however, the reason for requiring an objection to the admissibility of evidence prior to trial in a motion to suppress, at trial, and after trial. One of the more important reasons, as explained by Yowell at 402-03, is to prevent judicial confusion and to preserve an orderly system of justice.

“The judge presiding over the trial would not necessarily know what transpired at the hearing on the motion to suppress nor would he know with any degree of particularity what items of evidence were the subject of the motion. The hearing of pretrial motions by a judge who does not preside at the trial itself occurs frequently in multiple-judge circuits and also occurs when a motion for change of judge is filed and granted in other circuits after the motion to suppress has been heard and decided.”

In the case before us, this reason for the rule does not exist. The parties in the case had just finished arguing the motion to suppress for two hours in front of the judge who presided at the trial which began immediately following argument on the motion. Furthermore, objection to admission of the statement was made again immediately after the state rested its case and again in the motion for new trial. Additionally, there is nothing to indicate that had the objection been made at trial immediately prior to the statement, the trial judge would have changed his mind from his ruling a few hours earlier and sustained the objection. Nor is there any indication that defendant has advanced any reasons for his objection other than those first presented to the court. The objection all along was that appellant had not been given the Miranda warning. In this case I would not require an objection at trial because to do so would be to require a needless act.

Last, even if objection at trial is required, I would review the admissibility of these self-incriminating statements as plain error affecting substantial rights which would result in manifest injustice or miscarriage of justice under Rule 27.20(c). See State v. Rapp, 412 S.W.2d 120 (Mo.1967); State v. Beasley, 404 S.W.2d 689 (Mo.1966). As to whether this is plain error, I agree with what Turnage, P. J., who wrote the court of appeals opinion reversing and remanding this case said, as follows:

“As revealed from the statement of facts heretofore given, it is apparent the State’s case rests on an entirely different footing without the admission of the defendant’s statement given to Detective Watson. It can certainly be said that without this statement the State does not have nearly as strong a case. It is obvious the defendant would be in a much different position before the jury without tlrerstatement in evidence. The resultant material weakening of the State’s case by excluding the statement is sufficient to demonstrate the admission of the statement affected defendant’s substantial rights. This resulted in manifest injustice to defendant. Under Rule 27.20(c) this is plain error requiring a new trial.”

BARDGETT, Judge

(dissenting).

I respectfully dissent. The first entry in the record of the trial of the case states: “The trial began on Wednesday, December 4, 1974, before the Honorable Robert G. Russell, Judge of Division 2 of the Circuit Court of Johnson County, Missouri, at War-rensburg and a jury, which was impanelled, selected and sworn.” Thereafter a hearing on several motions was held including defendant’s motion to suppress the oral confession out of the hearing of the prospective jurors. The ground alleged in the motion to suppress is that the alleged oral statement was given without adequate warnings as required by Miranda v. Arizona, 386 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The record reflects that a discussion took place between court and both counsel with respect to what particular evidence the state was going to introduce before the jury and what evidence the state did not intend to introduce. This was for the purpose of limiting the hearing to those matters which the state declared it would offer in evidence and that resulted in the prosecutor stating he intended to introduce the testimony of detective Maurice Watson of the Kansas City police department to prove up the oral confession of the defendant. The tenor of this hearing, as shown by the record, zeroed in on the admissibility into evidence of the oral confession during the immediate impending trial as perhaps distinguished from the tenor of hearings generally on motions to suppress where the question of whether the particular item will be offered in a later trial is not resolved. This distinction may seem tenuous but as I read this record the hearing on this motion was, for all pretrial purposes, a hearing that took place during the trial consequent to an objection by the defendant to the immediate introduction into evidence of the oral confession.

As stated in the principal opinion and the court of appeals opinion, the defendant was not advised of his rights — “Miranda warnings” — prior to being interrogated by the police and giving an oral inculpatory statement.

At the conclusion of the hearing the trial court overruled the motion to suppress the oral confession stating, “The Defendant had received the warning four times. Whether this was a custodial or noncustodial interrogation, I don’t think there’s any question but what he had previously been apprised of what his rights were. I don’t think it’s necessary that the Police very time they question him, they give him the warnings. The Court certainly feels that the further interrogation and investigation was not a custodial interrogation.”

The reference to defendant having received the warning four times was to previous independent occasions and not to the instant interrogation.

After taking up some other matters pertaining to evidence that would be offered in trial and disposing of certain objections, the court immediately proceeded with the voir dire examination and the jury was selected. All of the evidence was received that same day with the last witness for the state being detective Watson who testified to the oral confession. The defense did not repeat its objection to the admission of the confession at that time, but the first entry in the record of the second day of trial reflects the following:

“MR. FITZGERALD: Your Honor, at this time, the Defendant moves the Court to strike the testimony of Witness Watson, as the same pertains to the statement of the Defendant given in November, 1973, and to instruct the Jury to disregard it on the grounds it is incompetent for all the reasons assigned in the motion to suppress hereinbefore filed with this Court.

“THE COURT: Well, the motion will be * overruled on two bases. Number One, the Court feels that there is a proper foundation for the admission of the statement, as the Court indicated at the suppression hearing, and that the—

“THE COURT: First, that the interrogation was not a custodial interrogation. Secondly, that the Defendant had been adequately warned previously concerning his rights in the matter. And secondly (sic), that the objection is untimely. It comes after the testimony has been admitted.”

In view of the fact that the motion to suppress was taken up and heard for all practical purposes during the trial and that the tenor of that hearing was that the court was then and there determining the admissibility of the confession in the trial and not just ruling on a pretrial matter, I am convinced that the attorneys and the court considered that the court’s ruling on the motion to suppress constituted a ruling on the in-trial admissibility of the confession. This was the same as if the trial itself had been interrupted so as to afford a court hearing on the admissibility of the confession on objection by the defendant made at the time the witness Watson took the stand. In my opinion this view is buttressed by the court’s response to the defendant’s motion to strike the testimony of detective Watson as to the confession in that the court repeated the same reasons for overruling the motion to strike as it gave for its decision in overruling the motion to suppress. I am mindful of the fact that the court added to its previous reasons that the motion to strike was untimely as coming after the testimony was admitted. Nevertheless, on the facts of this case, I would hold that the objection to the oral confession had been preserved at trial and is reviewable on appeal.

The facts of State v. Yowell, 513 S.W.2d 397 (Mo. banc 1974), and State v. Bryson, 506 S.W.2d 358 (Mo.1974), (authored by the undersigned), are distinguishable from the circumstances of the instant case as set forth in the dissent of Seiler, C. J., in this case. However, I do not agree with the observation made in the dissent of SEILER, C. J., that the principal opinion implies that because warnings were given by different police agencies on other occasions that these prior warnings satisfy the requirements of Miranda. As I read the principal opinion, it simply holds that the defendant did not preserve the error for appellate review and declines to review the issue under the plain error rule. As stated supra I would hold that the error was preserved for appellate review.

In my opinion, Miranda required that the defendant be advised of his rights prior to the police interrogation in the instant case and therefore the trial court erred in holding the oral confession admissible. I would reverse and remand this case for a new trial.


author: HENLEY, Judge. BARDGETT, Judge

text:
    The ST. LOUIS TEACHERS ASSOCIATION, a corporation, Respondent, v. BOARD OF EDUCATION OF the CITY OF ST. LOUIS, a Body Corporate, Appellant.
    No. 59574.
    Supreme Court of Missouri, En Banc.
    Dec. 30, 1976.

      Kenneth C. Brostron, St. Louis, for appellant.
    Charles A. Werner, St. Louis, for respondent.
    George E. Kapke, Independence, amicus curiae.
   HENLEY, Judge.

This is an action by the St. Louis Teachers Association (the Association) against the Board of Education of the City of St. Louis (the Board) seeking a judgment (1) declaring that a writing entitled “Recapitulation of Understandings” (the Agreement) is a valid agreement binding upon these parties, and (2) for specific performance by the Board of obligations alleged to have been made therein. Judgment was for the plaintiff on both counts and defendant appealed to the Court of Appeals, St. Louis District. That court reversed the judgment and remanded the case with directions to enter judgment for defendant. We ordered the case transferred to this court on application of the Association.

The crucial question, the answer to which is decisive of this case, is whether, as the Board contends, the Agreement is void ab initio because procured by and produced as a result of a strike and other illegal acts of school teachers, members of the Association and the Union.

The Association is an organization of state certified teachers employed by the Board. The St. Louis Teachers Union, Local 420 (the Union) is also an organization of state certified teachers employed by the Board.

On January 21, 1973, after repeated unsuccessful attempts to meet with the Board and its budget committee, the leadership of the Association urged the teachers to go on strike hnd, upon a vote being taken, they did strike, thereby closing the St. Louis schools. The strike continued until February 18, 1973. The purpose of the strike was to secure an agreement with the Board providing for higher salaries, fringe benefits, and a grievance procedure for the teachers.

During the period between January 21, and February 19, 1973, representatives of the Board, the Association and the Union met to discuss and attempt to settle the differences between their respective principals.

On January 31, 1973, the Board sought and obtained from the Circuit Court of the City of St. Louis a decree enjoining the Association and the Union from continuation of the strike. On the same day, a representative of the Association stated publicly that its members would “defy this injunction and continue the strike,” and the teachers did thereafter refuse to obey the injunction and continued to keep the schools closed. Thereafter, contempt proceedings were filed against the Association, its president, and the Union and its president. On February 6, 1973, the trial court found the Association and its president guilty of criminal and civil contempt. The Association was fined $515,000; its president was fined $5,800 and sentenced to jail for 60 days.

The injunction decree and the judgments of contempt notwithstanding, the teachers refused to return to their classrooms until their demands were met with an agreement in writing. On Sunday, February 18, 1973, the Board and the Association, through their attorneys, reached a settlement of their differences. The settlement was reduced to writing as the “Recapitulation of Understandings,” referred to above, and was executed the next day by these attorneys.

The public policy of this state, declared by § 105.530, RSMo 1969, is that public employees do not have the right to strike against their governmental employer. City of Grandview v. Moore, 481 S.W.2d 555, 558[3], (Mo.App.1972) and cases there cited; City of Webster Groves v. Institutional and Public Employees Union, 524 S.W.2d 162, 165[5] (Mo.App.1975). See also: 51A C.J.S. Labor Relations § 306, pp. 104-6.

The court said in McDearmott v. Sedgwick, 140 Mo. 172, 39 S.W. 776, 778[2] (1897): “The principle is well settled that ‘no court will lend its aid to a man who founds his cause of action upon an * * * illegal act.’ This is a principle founded upon public policy, ‘not for the sake of the defendant, but for the law’s sake, and that only.’” Schoene v. Hickam, 397 S.W.2d 596, 602[11] (Mo.1966); Greer v. Zurich Insurance Co., 441 S.W.2d 15, 26[8] (Mo.1969).

There can be no doubt that the Agreement upon which the Association bases its suit was produced by an illegal strike by the public school teachers. The evidence is overwhelming that the strike would continue and the schools would remain closed until an agreement satisfactory to the Association could be reached; that no authority would be permitted to stop the strike, the public welfare notwithstanding. Not only did the strike contravene the declared public policy of the state, but its continuance after negotiations between the parties had begun, and its continuance in defiance of the injunction and judgments of contempt demonstrated an utter disregard and disrespect for the processes of the law the Association now seeks to invoke to enforce its Agreement. For the reasons stated, the Agreement was void (not merely voidable) and the trial court erred in entering judgment for the Association.

The judgment is reversed and the cause is remanded with directions that the trial court enter judgment consistent with this opinion.

MORGAN, HOLMAN, FINCH and DON-NELLY, JJ., concur.

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

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

APPENDIX

RECAPITULATION OF UNDERSTANDINGS

1.) Effective upon resumption of teaching and for the remainder of the 1972-73 school year, teachers’ salaries will be increased on an annual basis of $400.00 across-the-board ($200.00 for the second semester of the current year.) Regular substitutes will receive a $2.00 per day increase.

2.) Effective for the 1973-74 school year, an additional $400.00 across-the-board salary increase will be instituted. Regular substitutes will continue to be paid on the basis of $28.00 per day.

3.) The Index Ratio of teacher salaries will be the subject of further discussions in any consideration of teachers’ salaries after the 1973-74 school year.

4.) Commencing August 29,1973, the Board of Education, at its expense, will provide teachers hospitalization insurance containing the features covered in a report of the Joint Committee on Insurance.

5.) There will be no strike, work stoppage or interference with normal teaching duties, and in the event that such shall occur, it is agreed that the same will constitute irreparable injury to the Board of Education and shall be grounds for injunctive relief. It is agreed that service of process in any proceeding to enforce the foregoing no-strike provision shall be effective by the Board of Education’s mailing of notice of any such action by certified mail to the respective offices of the St. Louis Teachers Association, or its successor, and the St. Louis Teachers Union, Local 420, and this shall also constitute effective personal service upon the then officers of those two organizations.

6.) Teachers who are eligible for a Spring vacation during the 1972-73 school year will be paid therefor at the close of the 1972-73 school year.

7.) No disciplinary action or penalty will be invoked by the Board or its agents against any teacher in connection with his employment and no reprisals of any kind will be visited by any teacher or representative of said Union or Association, or its successor, upon any person by reason of participation or nonparticipation in their respective activities.

8.) The salary increase referred to in Paragraph 1 above is made in consideration of the commitment on the part of teachers to perform normal teaching duties on such days other than regular school days as may be designated by the Superintendent during the current school year, and in consideration of all the other conditions herein contained.

9.) In addition to the foregoing, the following understandings between the parties are confirmed:

(a)Proposed formalized procedure for resolving teaching questions or grievances;
(b) Procedure relating to wages, hours and other conditions of employment for teachers;
(c) Leaves of Absence;
(d) Visitation at schools by teacher organization representatives;
(e) Provision for extra compensation to elementary physical education teachers for after school hours activities;
(f) Commitments to reduce class size. Copies of all memoranda relating to such understandings are attached.

10.) Wherever reference is made in this Recapitulation or in any such memoranda to the St. Louis Teachers Association, it is understood to refer also to any successor thereof.

11.) These understandings shall remain in full force and effect until June 30, 1974.

I.FORMALIZED PROCEDURE FOR RESOLVING TEACHER QUESTIONS OR GRIEVANCES

Should any question or grievance arise involving a teacher’s working conditions, employment status or any other matter relating to his or her terms and conditions of employment, the teacher or his representative, as hereinafter provided, may have such question or grievance aired and resolved through the following steps:

1. The teacher or his representative shall have the right to meet with the District Assistant for the school, or the equivalent administrator at other units, at which the teacher is located to resolve the question or grievance.
2. In the event that the matter is not resolved to the satisfaction of the teacher and his representative at the first step, within three (3) working days after submitting the question or grievance, he or his representative shall have the right to meet with the District Superintendent in charge of the district in which the school and the teachers are located to resolve the question or grievance.
3. In the event that the matter is not resolved to the satisfaction of the teacher and his representative through the proceeding steps within five (5) days after submitting the question or grievance to the District Superintendent, he or she shall have the right to submit the matter to the Board of Education or its desig-nee(s) for resolution. Presentation by the teacher or his representative at this step shall be by a statement in writing of the teacher’s grievance or question and the reply of the Board, or its designee(s), will be given in writing within ten (10) days after receipt of the written statement.
4. In the event the matter is not resolved to the satisfaction of the teacher and his representative through the preceding steps then the parties shall have the right to have recourse to such other impartial person or agency for an advisory opinion in the matter as may be mutually agreeable to the parties involved. Should there be any cost involved in such further procedure, it will be divided equally between the parties.
5. In the event that it should become legally possible and permissible, thru legislative enactment of the Missouri Legislature or authoritative judicial determination by the Courts of Missouri, for the Board of Education as a municipal corporation to enter into binding arbitration as a final step in the resolution of such grievances, then, if a grievance is not resolved to the satisfaction of a teacher and his representative the matter shall be submitted to final and binding arbitration before an impartial arbitrator selected by mutual agreement of the parties. If the parties should be unable within ten (10) days after request for such arbitration to select an impartial arbitrator by mutual agreement, then either party shall have the right to request the Federal Mediation and Conciliation Service in Washington for a panel of five (5) arbitrators from whom one will be selected by either side alternately striking the name of an arbitrator from such panel, commencing with the parties seeking such arbitration proceedings, and the last name remaining on such list will be considered selected and agreed upon as such impartial arbitrator. The cost involved of such arbitration proceedings shall be divided equally between the parties. The foregoing provisions for binding arbitration shall not be understood to preclude a teacher from having recourse to provisions of the Teacher Tenure Statutes of Missouri. Should the teacher elect to pursue such course, the provisions herein for arbitration shall not apply.

Any teacher shall have the right to have the assistance of a representative of his choosing at any step of the procedure outlined above and no teacher shall be required to discuss any grievance if his chosen representative is not present.

No teacher will be prejudiced or discriminated against by the Board of Education or the school administration because of his or her participation in this grievance procedure.

The Board and the administrator will cooperate with the parties involved in its investigation of any grievance and, further will furnish the parties involved with such reasonable and appropriate information as is requested for the processing of any grievance.

Should the investigation or processing of any grievance require that a teacher or his representative be released from his regular assignment, he shall be released, without loss of pay or benefits, as long as no unreasonable interference with the school program results.

All documents, communications, and records dealing with the process of a grievance will be filed separately from the personnel files of the participants.

If a grievance develops at or near the end of the school year, such that sufficient time is not available during the school term to implement fully the grievance procedures set forth, said time limits shall be waived to expedite the processing of the grievance.

As used in the foregoing procedure, “teacher” shall mean either; (1) an individual employee, or (2) a group of employees having the same grievance.

The St. Louis Teachers Association and/or the St. Louis Teachers Union, Local 420, shall have the right to present grievances on behalf of their organizations.

Nothing contained in the foregoing procedure or provisions shall be understood to prevent or preclude the Superintendent from directing or administering teacher personnel in the best interest of the school system, subject to the review provided for therein.

A grievance may be withdrawn at any time without prejudice or precedent.

II.PROCEDURE RELATING TO WAGES, HOURS AND OTHER CONDITIONS OF EMPLOYMENT FOR TEACHERS

1. The Board of Education or its desig-nee shall meet on request with the St. Louis Teachers Association and the St. Louis Teachers Union, Local 420, through teacher representatives of their own choosing and shall confer on and fully discuss with an intent to reach an understanding on all matters relating to wages, hours, and other conditions of employment for the teachers.

2. Upon the completion of the meetings as provided in step 1 above, the understanding shall be reduced to writing, and presented to the Board of Education for approval.

3. The foregoing procedure is to be followed and applied until such time as a valid and lawful election or other procedure may be utilized to resolve any question of majority status of either organization. In accordance with requests made by both groups, the Board will adopt procedures governing its relations with the majority organization and will recognize the results of a representative election held between January 1, 1974 and October 1, 1974, to determine majority status, unless an earlier date is authorized by law.

III.LEAVE OF ABSENCE

Any teacher (not more than six (6) at a time) elected or appointed to any full time position in a teacher organization shall be given a leave of absence. He or she shall continue to accrue seniority for salary increments and all other purposes where seniority is a factor. The absence shall not be construed as a break in service for any purpose.

Regularly appointed teachers on such leaves of absence shall be permitted to make their regular contribution to plans requiring such contribution. They shall also be permitted to pay the contributions required or permitted by law to be made by the employee to the Public School Teachers Retirement and Penson [sic] Funds to insure that full credit for retirement purposes is granted for the time spent on such leaves of absence.

Released time will be granted to not more than four (4) employees of the school system as representatives of each of the existing teacher organizations, St. Louis Teachers Association and St. Louis Teachers Union, Local 420, for the purpose of participation in meetings with Board representatives on wages, hours, and terms and conditions of employment.

Nothing contained in the above shall limit leaves pursuant to regulations in existence under Board Rules and Regulations on January 1, 1973.

IV.VISITATION AT SCHOOLS BY TEACHER ORGANIZATION REPRESENTATIVES

Two representatives per teacher organization will be allowed access to any school for consultation with a teacher or teachers before or after school or during the lunch period or during any other non-teaching times, if such visit does not conflict or interfere with other school or professional activities. A list of all such accredited representatives shall be furnished to the Superintendent’s office and kept current by any teacher organization. Such representative on any visit shall report his presence to the school principal upon his entry on the school premises. Upon request of a teacher or group of teachers at a given school to the principal and subject to his concurrence, which shall not be unreasonably withheld, additional representatives (not more than 5 in number) will be allowed access to the school after school hours for consultation.

Y. COMPENSATION FOR ELEMENTARY PHYSICAL EDUCATION TEACHERS FOR AFTER ACTIVITIES

Elementary physical education teachers who choose to engage in physical education activities after regular school hours will be compensated for such activities at the rate of $418.00 per semester, for which they will be expected to expend a minimum of four hours per week in such activity. Payment therefor will be included in regular pay checks. Maintenance of this after school physical education program is understood to depend upon the availability of funds in the school budget for that purpose.

VI. CLASS SIZE

The Board will make every attempt to reduce class size and commits itself to working toward the AAA class size standards. Prior to the 1973-74 school year, the Board will establish a maximum class size limitation.

VII. AUTOMOBILE INSURANCE

The Board is currently examining its blanket liability insurance policies to determine whether or not liability coverage is provided for teachers who transport children in their own automobiles in the course and scope of their employment, and it is the intention of the Board to secure such coverage.

BARDGETT, Judge

(dissenting).

I respectfully dissent. The principal opinion holds the Agreement void because it was coerced by an illegal method — a strike in January and February, 1973, by public school teachers in contravention of the no-strike provision of section 105.530, RSMo 1969. The strike was certainly illegal and it did coerce the original “Recapitulation of Understandings” (Agreement) of February 18, 1973.

No action was ever taken by the Board of Education of St. Louis to declare the Agreement invalid until after June 30, 1974, the expiration date of the Agreement and then only by way of defense to the instant case.

The trial court heard evidence as to the conduct of the parties reference the Agreement over the sixteen months of its existence and held, on the evidence presented, that the Board of Education was estopped from asserting duress because it had ratified the Agreement after the duress ceased. The court in its memorandum opinion found and held inter alia:

From the evidence produced on the trial of the instant Cause, it appears that from the time the Recapitulation was entered into on February 19, 1973, until the instant lawsuit no question was raised as to the binding character or legal effect of the Agreement. To the contrary it appears that in a series of exchanges between plaintiff and defendant the latter treated the document as binding, to-wit: On June 20, 1973, a letter was written wherein proposed language for amending the ‘formalized procedure for resolving teacher questions or grievances, to include an appropriate procedure for handling the grievances of substitutes’ was used, and again on January 24, 1974, in a letter, recognition was accorded the document in words to the purport, ‘as per agreement with these organizations signed on February 19, 1973,’ and acknowledging that the agreement was to remain in force through the 1973-74 school year, and finally on April 1, 1974, in a letter from defendant’s attorney reference was made to the ‘existing memo-randa signed in February, 1973, which are to endure until June 30, 1974.’ In fact it appears that effect was given to the document on one occasion (Pam Wallace). The recognition of the binding, valid and enforceable feature of this document by the defendant invokes the general rule as enunciated in 25 Am.Jur.2d Duress (Section 27, page 385):
“As a general rule, one entitled to rescind or repudiate a contract or transaction on the ground of duress should act promptly after the duress has been removed, or he will be deemed to have elected to affirm it.”
Again, at Section 28, pages 386, 387, Am. Jur. states:
“Ordinarily, a contract entered into under duress is not considered void but merely voidable, and it is therefore capable of being ratified after the duress is removed. Such ratification results if the party entering into the contract under duress accepts the benefits growing out of it or remains silent or acquiesces in the contract for any considerable length of time after opportunity is afforded to avoid it or have it annulled, or if he recognizes its validity by acting upon it.” See Gallon vs. Lloyd Thomas Company [8 Cir.], 264 F.2d 821; [State ex rel. American Surety Company vs. Haid [325 Mo. 949], 30 S.W.2d 100]. Without question defendant not only accepted the agreement or document, but by its subsequent actions ratified it realizing the benefits therefrom for approximately 16 months, and now is estopped, or waiver if you will, to urge its invalidity on the basis of duress.

In my opinion the original “Agreement” was, at the most, voidable at the election of the Board of Education because of the illegal duress of the strike, but, the Board of Education, having operated under the provisions of the “Agreement” without protest for sixteen months, even seeking to amend it during its term, has ratified the Agreement without any illegal coercion and thereby is estopped from now having the Agreement declared invalid.

The only issue decided in the principal opinion is that the Agreement is void because the strike was illegal and, therefore, that is the only issue addressed to in this dissent. In my opinion, the Agreement that resulted from the illegal strike was voidable at the election of the Board of Education but the Board of Education, by its conduct, subsequently ratified the Agreement and, therefore, the Board is es-topped from contesting the validity of the Agreement on the basis that it was produced by the illegal strike.

      . The St. Louis Teachers Union, Local 420, not a party to this action, joined in the execution of the Agreement. The Agreement (omitting the signatures of attorneys representing the Board, the Association and the Union) and the understandings referred to in paragraph 9 thereof are set out in full in the appendix hereto.

      . Section 105.530 is as follows: “Nothing contained in sections 105.500 to 105.530 shall be construed as granting a right to employees covered in sections 105.500 to 105.530 to strike.”


author: DONNELLY, Judge.

text:
    STATE of Missouri, Respondent, v. Lindol CURTIS, Appellant.
    No. 59614.
    Supreme Court of Missouri, En Banc.
    Dec. 30, 1976.

      Garry E. Champion, Sikeston, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   DONNELLY, Judge.

Appellant, Lindol Curtis, was convicted of two counts of murder in the first degree by a jury in the Circuit Court of New Madrid County, Missouri, in connection with the deaths, on May 7, 1974, of his former wife and her mother. Following rendition of judgment and imposition of two life sentences which were ordered to be served consecutively, an appeal was perfected by Lindol Curtis to the Springfield District of the Court of Appeals, where the conviction was affirmed. Upon application of Curtis, the cause was transferred here by order of this Court. We determine the cause the same as on original appeal. Mo.Const. Art. V, § 10.

At his arraignment, Curtis entered a plea of not guilty by reason of mental disease or defect excluding responsibility. Thereafter, Curtis underwent a psychiatric examination conducted by Dr. Metin Arat of State Hospital No. 4 at Farmington, Missouri. Another psychiatric examination of Curtis was performed by Dr. Robert Lam at the request of the defense.

Prior to trial, disclosure of the State’s intended witnesses was sought by appellant pursuant to Rule 25.32. The State’s answer to the request for disclosure indicated the witnesses to be called by the prosecution were those previously endorsed on the information.

Following presentation of the State’s case, the defense called its only witness, Dr. Lam, who testified that appellant suffered from a mental disease or defect at the time he committed the homicides. In rebuttal to Dr. Lam’s testimony, the State called Dr. J. F. Tuttle. Appellant’s counsel objected at this point on the ground that Tuttle’s name had not been disclosed in response to appellant’s discovery request. The objection was overruled on the ground that Dr. Tuttle was a rebuttal witness. He was permitted to testify that he had talked with the appellant, that he made no written report of the examination, but that he concurred in the findings of Dr. Arat who, in his report, concluded appellant did not suffer from a mental disease or defect.

At the hearing on appellant’s motion for a new trial, it was revealed that sometime prior to the day of the trial, appellant’s counsel was advised that Dr. Arat would be unavailable to testify and that another psychiatrist from the State Hospital would be called. Counsel for appellant complained at the hearing that because Dr. Tuttle did not meet with the appellant until the night before the trial, there was no opportunity afforded the defense to arrange to interview Dr. Tuttle, much less depose him.

The only question that need be resolved on this appeal is whether the State was required to disclose Dr. Tuttle’s name before trial.

In State v. Washington, 383 S.W.2d 518, 524 (Mo.1964), this Court stated:

“ * * * When an information or indictment is filed, it is required both by supreme court rule and the statutes that the names of all material witnesses for the prosecution be endorsed thereon. S.Ct. Rule 24.17, V.A.M.R., §§ 545.070 and 545.240, RSMo 1959, V.A.M.S. This court has held, however, on numerous occasions that the rule and statutes do not apply to rebuttal witnesses. * *

We see no reason to disturb the rule that rebuttal witnesses may testify even though they have not been endorsed on the indictment or information. However, on July 1, 1974, our new rules of criminal discovery (Rules 25.30-25.45) became effective and are pertinent on this appeal.

Rule 25.32(A)(1) requires that the State shall, on written request of the defendant, disclose the “names and last known addresses of persons whom the state intends to call as witnesses * * This duty to disclose is a continuing one. Rule 25.37.

Rules 25.34(A)(5) and (2) require the defendant, on written request of the State, to disclose if he intends to rely on the defense of alibi and the names and addresses of persons he intends to call in support.

Rule 25.34(A)(4) and (2) require the defendant, on written request of the State, to disclose if he intends to rely on the defense of mental disease or defect excluding responsibility and the names and addresses of persons he intends to call in support.

We must recognize that under the law announced in Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), due process requires that State rebuttal witnesses not be permitted to testify in situations where a defendant has disclosed he intends to rely on the defense of alibi (and disclosed his witnesses) and the State has failed to disclose the names of the persons to be called to rebut the defense of alibi.

In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the United States Supreme Court upheld the constitutionality of Florida’s notice-of-alibi rule which is similar in its provisions to our Rule 25.34(A)(5). In Wardius, the Court noted the Williams holding, and then held (412 U.S. 470, 472, 93 S.Ct. 2208, 2211, 37 L.Ed.2d 82) “that the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants.”

We believe the Wardius requirement of “reciprocal discovery” in a “notice-of-alibi” defense situation should be applied in a “notice-of-mental disease or defect” defense situation. Our rules require that both defenses be disclosed by defendant on request of the State and that the names and addresses of persons to be called as witnesses in support of the defenses be disclosed. “Reciprocal discovery” mandates that the State be required to disclose the names and addresses of persons it intends to call as rebuttal witnesses in both situations. “It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.” Wardius, supra, 412 U.S., at 476, 93 S.Ct. at 2212.

The trial court erred in permitting Dr. Tuttle to testify in the circumstances of this case.

The judgment is reversed and the cause remanded.

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

HOLMAN, J., dissents.