author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri at the relation of William H. HERING and Shirley Hering, d/b/a North County Bus Service, Appellants, v. STATE of Missouri PUBLIC SERVICE COMMISSION, Respondent, and Mid American Coaches, Inc., et al., Intervenors-Respondents.
    No. 28917.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Herbert K. Hoffman, Clayton, for appellants.
    Elvin S. Douglas, Jr., Harrisonville, for intervenors.
    Leland B. Curtis, Gen. Counsel, W. R. England, III, Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

William H. Hering and Shirley Hering, doing business as North County Bus Service, were cited to appear before the Missouri Public Service Commission for alleged violations of § 390.051, RSMo 1969, in transporting persons in intrastate commerce without a certificate of authority issued by the Commission. Appellants responded, claiming that they were exempt from Pub-lie Service Commission regulation because they were operating school buses within the meaning of § 390.020(16), RSMo 1969. After a hearing, the Commission found the movements involved subject to Chapter 390 and ordered appellants to desist from the questioned movements until a certificate authorizing such operation was issued. Appellants appealed to the Cole County Circuit Court, which affirmed the order of the Commission. This appeal followed.

Appellants operate school busses in and around St. Louis County. Some of their busses operated on a regular school route basis under contracts with school districts. Other busses operated by them were used, in part, for the operations which resulted in the citation to appear before the Public Service Commission. The operations involved movements from April to July, 1975 of groups of individuals of school age and included eight groups of members of the Catholic Youth Council, four groups of Camp Fire Girls, two groups of Girl Scouts and one group of Cub Scouts. The movements were sponsored by such groups and paid for from either the group treasury or by the individual organizers of the operation. The passengers were picked up at various schools, but the schools were not otherwise involved. The destination of the questioned movements included: a Girl Scout day camp, Jefferson City, Missouri, Six Flags over Mid-America, Johnson’s Shut-Ins, Osage Beach, Missouri, Lincoln’s Home and Tomb, Springfield, Illinois, the New Cathedral in St. Louis, the Riverboat Admiral at St. Louis, Forest Park Community College, Springdale Park and Holiday Village.

Appellants defended their failure to procure a certificate from the Commission for such operations on the grounds that § 390.-030 1. (2), RSMo Supp.1975, exempts “school busses” from the so-called “Bus and Truck” law and that their vehicles and their operation were within the definition of “school bus” in § 390.020(16), RSMo 1969, as follows:

“The term ‘school bus’ means any motor vehicle while being used solely to transport students to or from school or to transport students to or from any place for educational purposes.”

Appellants offered evidence of the broad general educational purposes of the various sponsoring organizations and urged that any movement of school-age children had an educational effect.

The Commission, in its report and order, adopted the following criteria for the purpose of applying the definition found in § 390.020(16):

“(1) To qualify as a student the individual must be formally enrolled in preschool, elementary, high school, junior college, college or university, technical or trade school, and

“(2) The movement must be expressly approved by the school board or other governing body of the school authorizing the movement.” Applying such criteria, the Commission found that the movements did not involve school busses within the exemption granted under § 390.030 1. (2), and ordered appellants to desist from such movements without a certificate from the Commission.

The Cole County Circuit Court upheld the order on appeal.

In this court, appellants contend that the criteria adopted by the Commission for application of the school bus exemption restrict the legislative definition of school busses and that such restriction is beyond the authority of the Commission. Appellants also contend that the order of the Commission is based upon matters not part of the record in this ease because the Commission found that policy considerations, including safety and insurance requirements, provided a basis for the criteria adopted by the Commission, and no evidence was presented on such matters.

In State ex rel. Anderson, et al., v. Witthaus, 340 Mo. 1004, 102 S.W.2d 99 (banc 1937), the court held that operation of a charter bus service, engaged in the transportation under contract of members of groups or organizations for a lump sum, was an operation of a common carrier for hire, subject to the Bus and Truck Law. The school bus exemption was not considered in that case. Such exemption had been provided by Laws of Mo., 1931, p. 304, § 5265. That enactment exempted “ * * any motor vehicle owned, controlled or operated as a school bus, * * The term “school bus” was first defined in Laws of 1941, p. 522, as follows:

“The term ‘school bus,’ when used in this article, means any motor vehicle used to transport students to and from school (either public or private) or to transport pupils properly chaperoned, to and from any place within the state, for educational purposes.”

In Laws of 1951, p. 547, the present definition of the term “school bus” was enacted, as well as the present exemption applicable thereto. § 390.030 1. (2).

(In 1951, legislation pertaining to the licensing of school bus drivers and providing for a $25.00 registration fee for school bus-ses was also adopted. In the driver’s license law, the term “school bus” was defined in the same language as the original definition in the Bus and Truck Law. That definition is still employed in § 302.-010(15), RSMo 1969. Laws of Mo.1951, p. 678, § 302.010(17), p. 681. The definition for purpose of the registration and licensing statutes of “school bus” was practically the same as that found in the 1951 amendment to the Bus and Truck Act. Laws of Mo. 1951, p. 695, § 301.010(22), p. 697. That definition is still found in § 301.010(25), RSMo 1969, as amended by Laws of 1974, p. 875.)

Appellants argue that the change in the language of “pupils properly chaperoned” to “students” is significant because the latter “is a more general reference to those individuals who are not employed on a full time basis in some endeavor and who have not completed their education” whereas the latter refers to persons “presently attending school” who have someone from that school to chaperone them.

Dictionary definitions of the words “student” and “pupil” do not support the argument that in employing the terms the legislature intended to enlarge the class of persons who might be transported without a Public Service Commission certificate. The following applicable definitions are found in Webster’s Third New International Dictionary (unabridged) (1961): “pupil * * * 2: a child or young person in school or in charge of a tutor or instructor: STUDENT 1 * * * “student * * * 1: a person engaged in study: one devoted to learning as a: one enrolled in a class or course in a school, college or university: PUPIL b: one who independently carries on a systematic study or detailed observation of a subject * *

In view of the use of the term “student” with the phrase “going to and from school” the legislature must have used the term, in the first phrase of the definition in the sense of “one enrolled in a class etc.,” which usage is synonymous with the term “pupil.” “ * * * [Wjhere the same word or phrase is used more than once in the same act in relation to the same subject matter and looking to the same general purpose, if in one connection its meaning is clear and in another it is doubtful or obscure, it is given the same construction in the latter case as in the former.” 73 Am.Jur.2d Statutes § 232, pp. 415^416 (1974). Such definition is also consistent with the object of the definition, “school busses.” To ascribe such meaning to the term in the second phrase does not make the 1951 amendment meaningless. Certainly the element of “proper chaperonage,” a somewhat subjective element, difficult of application, was eliminated.

The requirement of school sanction for the movement is not unreasonable or inconsistent with the terms of the statute. It provides an objective measure of the purpose of a trip.

The construction of the statute applied in this case is consistent with its prior construction by the Commission. In the case of Washington-Union-St. Louis Bus Co. v. Straatmann, 7 Mo.P.S.C.(N.S.) 388 (1957), the Commission found that transportation of a Girl Scout group from Washington, Missouri, to St. Louis, on a Saturday for a movie was not within the school bus exemption, relied upon by the bus operator. The construction of a statute by the agency charged with its enforcement is entitled to some weight in the interpretation of the statute. 73 Am.Jur.2d § 168, p. 371 (1974).

Appellants’ contention that the Commission’s order is based on evidence not contained in the record is without merit. In arriving at its conclusion, the Commission did consider the object of the statute in arriving at its construction. The Commission noted that passengers transported by common carriers receive the benefit of safety and other protective measures, such as insurance, by reason of the Bus and Truck Law and Commission regulations thereunder and that school bus operations under school auspices receive the benefit of the supervision and protection of the control of the controlling school authority. The inference from the Commission’s reasoning was that, if the movements such as here involved were within the school bus exemption, they would nevertheless lack the benefit of the protection ordinarily afforded school bus passengers. Such reasoning was merely cited as an additional support for the Commission’s conclusion because it showed that such conclusion was consistent with the object of the legislation.

Judgment affirmed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    CITY OF NEVADA, Missouri, Respondent, v. Duane James MIDDLETON, Appellant.
    Nos. 28932 and 28931.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.

      Duane James Middleton, Nevada, for appellant.
    Gerald D. McBeth, Ewing, Ewing, Carter, McBeth & Smith, Nevada, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   PER CURIAM:

Duane James Middleton was charged in the Nevada Municipal Court with failure to obey the reasonable request of a police officer in violation of a Nevada city ordinance. Upon trial in municipal court he was found guilty and punishment of $100 fine and ten days’ imprisonment assessed. The defendant appealed to the Vernon County Circuit Court. On a jury trial of the charge on February 19,1976, the defendant was found guilty. The jury could not agree upon the punishment. The court gave defendant, who had represented himself, ten days to file a motion for new trial. No motion was filed. On March 15 a capias issued and the defendant was brought in for sentencing. The court sentenced him to pay a $100 fine and to ten days in jail, with “ * * * a stay of execution * * * on the serving of the jail time conditioned upon your good behavior.” The defendant paid the fine.

On July 7, 1976, the circuit court ordered execution of the jail sentence which had been suspended and defendant was ordered into the custody of the sheriff to be committed to jail for ten days.

On July 8, 1976, defendant filed a notice of appeal from the circuit court judgment. The appeal was dismissed as untimely, without prejudice to the right to file a notice out of time by special order. Defendant took advantage of that procedure and on July 12, the court issued its order for appeal out of time and defendant duly filed again his notice of appeal (# 28,932).

In the meantime defendant had, on July 9, 1976, also filed a petition for a writ of habeas corpus in this court. The writ issued on that date, returnable July 12. Petitioner was ordered released upon $500 bond. A return to the writ was filed by the sheriff of Vernon County on July 12,1976, in which he denied the illegality of petitioner’s imprisonment and stated that pursuant to the court’s order, the petitioner had been released on bail on July 9. The court ordered the appeal and the habeas corpus consolidated.

In both matters, the defendant has continued to represent himself. He has submitted a pro se brief and reply brief and also was heard pro se on oral argument.

The facts out of which these matters arose are as follows. On August 11, 1975, at approximately 10:45 P.M., police officers of the City of Nevada were summoned to Bob’s Tavern in that city to investigate a disturbance. The appellant was pointed out to police officers as a party involved in the disturbance. Officers asked appellant for identification which he declined to produce. Appellant was also asked his name and he declined to reveal it. Appellant, the other party to the fracas and the proprietor of the tavern were taken to the police station.

At the police station appellant was again asked his name and for identification. He declined to give his name or to produce identification. He was requested to empty his pockets and did so, except for his right rear pocket. Officers seized appellant’s arms and removed a billfold from his right rear pocket.

Sergeant Eador of the Nevada police department then prepared a complaint on the form of a Missouri Uniform Traffic Ticket, charging that appellant failed to obey a reasonable request of a police officer by refusing to show identification or give his name, in violation of City Ordinance 23-51.

Trial in the municipal court and in the circuit court followed, with the results as above stated.

Inasmuch as respondent’s motion to dismiss the appeal because of inadequacies of appellant’s pro se brief has previously been overruled, there is no reason to dwell upon some rather obvious inadequacies of the brief. However, appellant is faced with a major obstacle on his appeal in that he filed no motion for new trial, a prerequisite, with a few exceptions, for review on appeal of allegations of errors against the trial court. Appellant has enumerated his complaints against the trial court in the following categories:

“A. Illegal Arrest
“B. Illegal Summons and Arrest
“C. Right to Retain Identification and Remain Silent
“D. Vagueness of Nevada City Code 23— 51
“E. Denial of Right to Lawful Bail and No Preliminary Hearing
“F. Illegal Stay of Execution and Confinement to Jail
“G. Denial of Writ of Habeas Corpus
“H. Denial of Right of Counsel and Correspondence While in Confinement.”

Matters A through E relate to pretrial activities and to the trial in the circuit court. Without detailing the arguments under these categories, all relate to matters which, if they are to be preserved for appellate review, must have been raised in the trial court and preserved in a motion for new trial. Rule 27.20. No motion for new trial having been filed, none of these matters is for review on this appeal. State v. Morris, 518 S.W.2d 78 (Mo.App.1974).

Insofar as the “Illegal Stay of Execution” amounts to an attack upon the judgment of the trial court, that matter may be urged on appeal, absent a motion for new trial. Rule 28.02. That allegation is also urged in the habeas corpus action. The complaint of “Illegal * * * Confinement to Jail” (F), as well as (G) and (H), is referable to the habeas corpus.

The judgment in the circuit court is attacked on the grounds that the court failed to limit the length of stay of execution of the jail sentence. Appellant relies upon § 546.900, RSMo 1969. Rule 27.24. See also Rule 37.76, applicable to municipal court proceedings. That statute (rule) applies in a case in which the execution of a sentence is stayed, with the defendant being required to post a bond for his appearance at the end of the stay to serve the sentence imposed. The stay of execution in the case is not of that nature. Here the stay was in the nature of a grant of probation, with execution of the sentence postponed indefinitely during the good behavior of the defendant.

Was the court required to limit the duration of such a stay of execution? No statute has been found which purports to direct the circuit court expressly in that regard when it is acting on an appeal from a municipal court on a charge of violation of a municipal ordinance. The city argues that the circuit court’s authority in such cases is derivative and that the court here was authorized to order the indefinite suspension by virtue of a Nevada ordinance authorizing the police judge, in a case in which a judgment has been entered against a defendant for fine and costs or imprisonment in the city jail, or by both a fine and imprisonment “ * * * to stay the execution of such judgment upon such terms and conditions as in his discretion may be just and proper.” § 20, Ord. # 2264.

Although on an appeal to the circuit court from a municipal court, the circuit court hears the matter de novo (Rule 37.84) and, in the case of Nevada, proceeds in the manner provided in cases of appeals from magistrate judgments in misdemeanors (§ 98.460, RSMo 1969), the authority for the sentence imposed in the circuit court depends upon the municipal ordinances. City of Ferguson v. Nelson, 438 S.W.2d 249, 254[8] (Mo.1969). See City of Yakima v. Barron, 182 Wash. 62, 44 P.2d 823 (1935). The Nevada ordinance which would authorize the stay of execution here granted has not been attacked. Therefore, the trial court will not be held to have erred in the sentence which it imposed.

On the writ of habeas corpus, the sheriff pleaded to the petition for the writ, rather than the writ, and no reply was filed to the return. No objection based on the lack of a reply has been made by the respondent. The case has been briefed on the issues raised by the petition and the case will be determined on the issues to which the parties have consented. Ryan v. Wyrick, 518 S.W.2d 89, 91[4, 5] (Mo.App.1974).

The petition attacks the validity of the sentence because of the indeterminate stay of execution. That issue has previously been considered upon the direct appeal. What was held there answers that complaint.

Petitioner complains of a discrepancy between the date of his imprisonment (July 7) and the record as shown by the Judge’s docket, which refers to July 10 as the date of revocation of the stay of execution. The transcript on the appeal shows that the order of revocation was entered July 7. Petitioner has filed what purports to be an uncertified copy of the court’s docket, showing a date of July 10. Inasmuch as petitioner’s petition for writ was filed in this court July 9, there is no basis for disregarding the transcript evidence that the stay was revoked July 7. There is nothing in this allegation entitling petitioner to relief.

Petitioner has briefed the question of lack of due process in the revocation of the stay of execution, which he would equate with a revocation of probation. See Reiter v. Camp, 518 S.W.2d 82 (Mo.App.1974). However, the petition for the writ of habeas corpus makes no claim to relief on such basis and therefore this contention is not for consideration. Ryan v. Wyrick, supra, at page 92[5],

The petition does refer to an “unlawful arrest” and denial of “all due process of law,” but this allegation refers to his arrest for the charge on which he was tried in the Yernon County Court on July 7, and found guilty, and which precipitated the revocation of the stay of execution. No basis for relief on the grounds alleged appears.

The petition for habeas corpus also fails to state any basis for relief on grounds H, above referred to: “Denial of Right of Counsel and Correspondence While in Confinement.”

The writ of habeas corpus should be quashed.

No. 28,931 — Writ of habeas corpus quashed.

No. 28,932 — Judgment affirmed.


author: WASSERSTROM, Judge.

text:
    LINCOLN COUNTY MEMORIAL HOSPITAL, Appellant, v. MISSOURI STATE BOARD OF MEDIATION, Respondent.
    No. KCD 29042.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.

      Peter J. Grewach, E. Rex Bradley, Troy, for appellant.
    John C. Danforth, Atty. Gen., Christopher R. Brewster, Asst. Atty. Gen., Jefferson City, for respondent.
    Before PRITCHARD, C. J., and SHAN-GLER, DIXON, SWOFFORD, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   WASSERSTROM, Judge.

Lincoln County Memorial Hospital appealed under Section 105.525 (all statutory references herein being to RSMo 1969 unless otherwise noted) from a determination by the Missouri State Board of Mediation that all registered nurses of the Hospital, with one exception, constituted an appropriate unit for collective bargaining. From an affirmance by the circuit court of the Board’s determination, the Hospital again appeals to this court.

On March 26, 1975, the Missouri Nurses Association petitioned the Board to resolve the issues of (a) the appropriate bargaining unit for nurses at the Hospital and (b) majority representation by the Association for the collective bargaining unit. The Board held a hearing on June 26, 1975, at which the Hospital and the Association both introduced evidence. The Hospital’s evidence was to the effect that it had approximately 222 employees of whom 70 worked part-time; approximately 122 of the employees, including 29 registered nurses, staffed the Department of Nursing; the Hospital had designated ten of those registered nurses with supervisory titles; these “supervisors” perform certain supervisory functions including recommendations having effective weight respecting promotions, transfers, discipline and discharge; and they are paid additional compensation for the supervisory position.

The Association admitted that Mrs. Judith King, as Director of Nursing, occupies a supervisory capacity and that she therefore should be excluded from the unit, but the Association strongly denied that any of the other nine “supervisory” nurses in truth should be so classified. The evidence offered by the Association tended to prove that all of the registered nurses including the “supervisors” performed general nursing duties; that the supervisory duties relating to management are relatively minor; and that all recommendations of a supervisory nature made by the nine “supervisors” in question were subject to the final judgment of Mrs. King.

On August 26, 1975, the Board issued its Opinion, Findings and Orders, in which it found that all of the registered nurses with the exception of Mrs. King constituted an appropriate bargaining unit and directed that an election be held within that unit not later than October 1, 1975. On September 11, 1975, the Hospital filed its petition for review in the circuit court, and at the Hospital’s request the court issued an order on September 12, 1975, staying the election pending judicial review.

The circuit court issued its order affirming the Board on July 7, 1976, from which the Hospital filed the present appeal on September 1, 1976. Pursuant to the Hospital’s application, this court issued its order on October 25, 1976, further staying the holding of an election pending determination of this appeal. Because of the stay orders mentioned, the election order by the Board on August 26, 1975, has never yet been held.

On the present appeal, the Hospital assigns six points of error, the most serious of which complains of the inclusion in the bargaining unit of the nine registered nurses whom the Hospital insists are supervisors or managerial personnel. However, none of the errors assigned by the Hospital can be reached on this appeal unless this court has proper jurisdiction. That in turn depends on whether the Board’s determination of the appropriate bargaining unit constitutes an appealable order. If it does not, then the circuit court lacks jurisdiction of the subject matter. National Ass’n of Women’s and Children’s Apparel Salesmen, Inc. v. F. T. C., 479 F.2d 139, 144, footnote 9 (5th Cir.1973); Bd. of Tr. of Mem. Hosp. of Fremont County v. N. L. R. B., 523 F.2d 845 (10th Cir. 1975); State Board of Registration for Healing Arts v. Masters, 512 S.W.2d 150, l. c. 159 (Mo.App.1974).

And the want of jurisdiction by the circuit court would in turn deprive this court of the power to make any decision on the merits. Shepler v. Shepler, 348 S.W.2d 607, 609 (Mo.App.1961); Allen v. State Department of Public Health and Welfare, 479 S.W.2d 183, 186 (Mo.App.1972); Swetnam v. U. S. By-Products Corp., 510 S.W.2d 829, 831 (Mo.App.1974). Even though this jurisdictional issue has not been raised by the parties, it is the duty of this court to consider the problem sua sponte. Stone v. Stone, 393 S.W.2d 201, 204 (Mo.App.1965); Engel Sheet Metal Equipment, Inc. v. Shewman, 298 S.W.2d 434, 435 (Mo.1957); Conner v. Herd, 429 S.W.2d 333, 334 (Mo.App.1968); P. I. C. Leasing, Inc. v. Roy A. Scheperle Construction Co., Inc., 489 S.W.2d 219 (Mo.App.1972).

The question of whether an appeal lies from an administrative determination of the appropriate bargaining unit, prior to determination of majority representative status, is not answered by the wording of § 105.525, which is ambiguous in this regard. The same question has given rise to much litigation in other jurisdictions, with conflicting results. The rule followed uniformly in the federal courts under the National Labor Relations Act is that such an administrative determination is only interlocutory and is not separately appealable. Except in extraordinary situations, the aggrieved party must await the completion of the administrative process by an election certification and an order compelling the employer to enter into collective bargaining. This result is reached partially on the basis of the statutory language granting the right of appeal, contained in 29 U.S.C.A. § 160. However, these decisions, more importantly for our purposes, rest also in part upon grounds of public policy. Thus in a leading case, American Federation of Labor v. N. L. R. B., 308 U.S. 401, l. c. 409, 60 S.Ct. 300, 304, 84 L.Ed. 347 (1940) the Supreme Court discussed and relied upon Congressional history to show a legislative purpose to eliminate delay which had occurred under the previous federal law (Public Resolution 44) and which had permitted judicial review at the stage of the determination of the appropriate bargaining unit. In this connection, the Supreme Court quoted the committee report as follows:

“ ‘Weaknesses in Existing Law. * * (6) Obstacles to elections. — Under Public Resolution 44, any attempt by the Government to conduct an election of representatives may be contested ab ini-tio in the courts, although such election is in reality merely a preliminary determination of fact. This means that the Government can be delayed indefinitely before it takes the first step toward industrial peace. After almost a year not a single case, in which a company has chosen to contest an election order of the Board, has reached decision in any circuit court of appeals.’ Sen.Rep. No. 573, Committee on Education and Labor, 74th Cong., 1st Sess., pp. 5, 6.
“After referring to the procedure for review under Public Resolution 44, the House Committee declared: ‘The weakness of this procedure is that under the provision for review of election orders employers have a means of holding up the election for months by an application to the circuit court of appeals. * * * At the present time 10 cases for review of the Board’s election orders are pending in circuit court of appeals. Only three have been argued and none have been decided.’ House Rep. No. 1147, Committee on Labor, 74th Cong., 1st Sess., p. 6.”

So also, in another leading case, Boire v. Greyhound Corporation, 376 U.S. 473, l. c. 477-478, 84 S.Ct. 894, l. c. 897, 11 L.Ed.2d 849 (1964), the Supreme Court made the following observations concerning the public policy involved:

“That this indirect method of obtaining judicial review imposes significant delays upon attempts to challenge the validity of Board orders in certification proceedings is obvious. But it is equally obvious that Congress explicitly intended to impose precisely such delays. At the time of the original passage of the National Labor Relations Act in 1935, the House Report clearly delineated the congressional policy judgment which underlay the restriction of judicial review to that provided for in § 9(d):
‘When an employee organization has built up its membership to a point where it is entitled to be recognized as the representative of the employees for collective bargaining, and the employer refuses to accord such recognition, the union, unless an election can promptly be held to determine the choice of representation, runs the risk of impairment of strength by attrition and delay while the case is dragging on through the courts, or else is forced to call a strike to achieve recognition by its own economic power. Such strikes have been called when election orders of the National Labor Relations Board have been held up by court review.’ ”

The same policy of furthering labor peace by not permitting delays in elections is reiterated in Bd. of Tr. of Mem. Hosp. of Fremont County v. N. L. R. B., supra, and in Bishop v. N. L. R. B., 502 F.2d 1024, 1027 (5th Cir. 1974).

A number of state courts in the application of state labor relations statutes have followed the above federal rule. City Manager of Medford v. State Labor Relations Commission, 353 Mass. 519, 233 N.E.2d 310 (1968); Worcester I. T. I. Instructors Ass’n v. Labor Relations Commission, 357 Mass. 118, 256 N.E.2d 287 (1970); Harrison v. Labor Relations Commission, 363 Mass. 548, 296 N.E.2d 196 (1973); Jordan Marsh Co. v. Labor Relations Commission, 312 Mass. 597, 45 N.E.2d 925 (1942); Town of Windsor v. Windsor Police Department Employees Ass’n, 154 Conn. 530, 227 A.2d 65 (1967); Southeast Furniture Co. v. Industrial Commission, 100 Utah 154, 111 P.2d 153 (1941); McGee v. Local No. 682, 70 R.I. 200, 38 A.2d 303 (1944); Klamath County v. Laborers Int'l. Union of N. A., Local No. 915, 534 P.2d 1169 (Or.App.1975). The opinion last cited typically holds:

“Since (1) the designation of an appropriate bargaining unit is but one step in the process of certifying a bargaining agent with whom the employer is obligated to bargain, (2) several other actions by PERB are necessary to complete the process, and (3) the designation could be of no effect if the employes [sic] vote for no representation, we hold that the designation of an appropriate bargaining unit is not a ‘final order’ as the term is used in ORS 183.480.”

On the other hand, New York, Minnesota and New Jersey have declined to follow the above approach and instead hold that the administrative determination of the appropriate bargaining unit does constitute a final order which is subject to immediate and separate judicial review. The leading case so holding is Civil Service Employees Association v. Helsby, 31 A.D.2d 325, 297 N.Y. S.2d 813 (1969), aff’d by a sharply divided vote of the New York Court of Appeals, 24 N.Y.2d 993, 302 N.Y.S.2d 822, 250 N.E.2d 230 (1969). Other cases following the lead of that case are: Wakshull v. Helsby, 35 A.D.2d 183, 315 N.Y.S.2d 371 (1970); Minnesota State College Board v. Public Employment Relations Board, 228 N.W.2d 551 (Minn.1975); County of Gloucester v. Public Employment Relations Commission, 107 N.J.Super. 150, 257 A.2d 712, 714 (1969). See also the Pennsylvania Labor Relations Act, 43 P.S. § 211.9, applied in Pennsylvania Labor Relations Board v. Butz, 411 Pa. 360, 192 A.2d 707 (1963).

In determining which of these opposing views should be adopted in Missouri, the most persuasive factor is the public policy reflected in the United States Congressional debates. The potential for calculated stalling of collective bargaining by dilatory tactics, which led Congress to eliminate separate judicial review of the determination of an appropriate bargaining unit, is well illustrated in this very case. By the time this opinion is handed down, it will be more than two years since the Association filed its petition before the Board and there still has not been any certification of a bargaining representative, much less the commencement of any negotiations between the parties. Such a long frustration of the employees’ right of collective bargaining is simply unfair. Moreover, the Missouri General Assembly, like the Federal Congress and the legislatures of many other states, has concluded that collective bargaining by public employees serves the public interest by being conducive to peaceful employment relationships in the public sector. Achievement of this public policy requires expeditious completion of the administrative process, and this can best be done by adoption of the federal rule requiring that the entire administrative process be terminated before judicial review can become operative.

The adoption of this rule will also harmonize with the general principle prevailing in this state as to what constitutes an appealable order. Only one which disposes of all the issues qualifies. Spires v. Edgar, 513 S.W.2d 372 (Mo. banc 1974); P. I. C. Leasing, Inc. v. Roy A. Scheperle Construction Co., Inc., supra; Laclede Gas Co. v. Solon Gershman, Inc., 539 S.W.2d 574 (Mo.App.1976). The reason for this principle is expedition of judicial business so that one appeal will cover all aspects of a case, rather than to permit successive piecemeal appeals. The same principle should apply, and with even more reason, in this labor relation situation.

Indeed, the adoption of this rule causes even less difficulty in Missouri than in the federal arena and in states having statutes closely patterned after the federal labor relations statute. The federal statute contains prohibition against unfair labor practices and judicial review of all representation questions is postponed until such time as the administrative board issues an unfair labor practice order. Then all questions between the parties, including the determination of the appropriate bargaining unit, are reviewed as part of the unfair labor practice case. The Missouri statute, § 105.-500 et seq., contains no provision dealing with unfair labor practices and the entire administrative procedures are completed just as soon as the Board of Mediation has held an election and certifies the collective bargaining representative. Judicial review can therefore appropriately begin in Missouri at that time, a point which is much earlier than is permissible under the federal and similar state legislation.

Adoption of the federal rule does not foreclose the possibility that in a very unusual case, judicial review might be appropriate even before the holding of an election. The federal courts and the courts of the states following the federal rule do permit such exceptions in extraordinary circumstances. Boire v. Greyhound Corporation, supra; Jordan Marsh Co. v. Labor Relations Commission, supra; Bays v. Miller, 524 F.2d 631 (9th Cir. 1975). The adoption of the federal rule will therefore leave ample flexibility for special situations.

Although the jurisdictional defect discussed above in itself precludes any decision on the merits at this time, mention should be made of one further matter, namely the unsatisfactory nature of the findings of fact which were made by the Board. The Board findings, taken as a whole, decided that the “community of interest” necessary under § 105.500(1) was fixed as a matter of law by virtue of the provisions of Chapter 335 which regulates registered nurses. The Board repeatedly so declared throughout its findings of fact and particularly in the following portions: “the Board interprets and finds that the Legislature, itself, by its legislative enactment, has invested R.N.s with ‘a clear and indentifiable [sic] community of interest ’. * * * It is a matter of statutory law. The Board should not take issue with the Legislature as to the community of interest enjoyed by R.N.s. They are a group who have an identity imposed upon them by statute. * * * The applied term ‘supervisor’ or the actual fact of rendering so-called supervisory services cannot alienate the registered nurses in this proceeding from their identification by the Missouri Legislature. Indeed their employer cannot so alienate them — the fact that he calls them ‘supervisors’ or invests them with so-called ‘management’ chores, notwithstanding.” (emphasis by the Board)

The Attorney General, who appears in this court on behalf of the Board, makes no attempt to justify the quoted findings. Rather the Attorney General in his brief takes a position which is in almost flat contradiction to the Board’s position disclosed in its findings. The brief states: “It would, of course, follow that supervisory employees who were in truth and fact ‘supervisors’, and who were shown to possess a greater community of interest with their employer than they did with their fellow employees, would be excluded from any employee bargaining unit.” The Attorney General then makes mention of seven factual criteria which have been developed by the Wisconsin Employment Relations Commission and argues that the nine nurses in question in this case would qualify as non-supervisory under the Wisconsin criteria. The Attorney General’s brief summarizes its argument as follows: “The record evidences activity-related as opposed to employee-related supervision, small numbers, close interaction between supervisors and staff, limited supervisory authority, and an absence of meaningful pay differentials.”

The argument submitted by the Attorney General has considerable appeal. However, argument by counsel in the brief, no matter how persuasive, cannot adequately substitute for missing findings which the Board failed to make. A reading of the findings which were made by the Board does not disclose any adoption of the Wisconsin criteria nor does the Board make any finding that the evidence of this case fulfills those criteria or any other of a similar nature. Absent appropriate findings of fact, the Board’s determination cannot stand. Iron County v. State Tax Commission, 480 S.W.2d 65 (Mo.1972); Century State Bank v. State Banking Board of Missouri, 523 S.W.2d 856 (Mo.App.1975); Glasnapp v. State Banking Board, 545 S.W.2d 382 (Mo.App.1976); Stewart v. Board of Education of Ritenour Consol. Sch. Dist., 538 S.W.2d 765 (Mo.App.1976).

On the release of these proceedings from this mistaken attempt at judicial review, the Board may very well want to reopen the record for the purpose of making new and additional findings of fact. By so doing, the Board can very possibly avoid an extra appeal with a consequent vast amount of wasted time and effort by the parties, the Board and the courts. Of course, the Board may at the same time take additional evidence if it deems such a course necessary or desirable.

For the reasons stated, this appeal is dismissed with directions to the trial court to vacate its judgment and to dismiss as premature the appeal taken by the Hospital from the Board’s orders dated August 26, 1975.

All concur.

      . Section 105.525 grants right of appeal as follows: “Issues with respect to appropriateness of bargaining units and majority representative status shall be resolved by the state board of mediation. In the event that the appropriate administrative body or any of the bargaining units shall be aggrieved by the decision of the state board of mediation, an appeal may be had to the circuit court of the county where the administrative body is located or in the circuit court of Cole County. ⅜ * *” § 536.100 and Rule 100.03, governing judicial review of administrative rulings in contested cases generally, provide that the review be of “a final decision.” The decisions from other jurisdictions hereinafter referred to generally address the question of whether determination of the appropriate bargaining unit, taken alone, constitutes “a final decision” of the administrative agency.

      . This reasoning by the Board seems inconsistent with its agreement to the exclusion from the unit of Mrs. King, who is also a registered nurse.

      . The closest that the Board came to doing so in its finding of fact was the statement that the registered nurses at this hospital “spent approximately 80% of their working hours directly administering to the health care of the patient, under supervision of the doctors.” A careful reading of all the evidence fails to show any evidentiary source for that finding.


author: PER CURIAM.

text:
    John DAMERON, Appellant, v. BOARD OF EDUCATION OF the LEBANON SCHOOL DISTRICT R-3, Respondent.
    No. 9978.
    Missouri Court of Appeals, Springfield District.
    April 7, 1977.
    Donald E. Bonacker, Jerry L. Reynolds, Springfield, for appellant.
    John F. Low, Lebanon, for respondent.
   PER CURIAM.

On June 12, 1973, the Board of Education of the Lebanon R-3 School District voted to terminate the indefinite contract between the school district and John Dameron, a “permanent teacher.” In addition to containing certain “findings,” the order of the board terminating the contract recited that the action was taken “because of inefficiency.” Dameron appealed to the circuit court, where the action of the board was affirmed. Dameron appeals.

Dameron’s first contention, a valid one, is that the procedure followed by the board failed to comply with § 168.116 which prescribes the steps which must be taken before a board of education may terminate the indefinite contract of a permanent teacher.

The statutes here involved are in the “Teacher Tenure Act” (§ 168.102 to § 168.-130 RSMo 1969, V.A.M.S.).

§ 168.106 provides, in essence, that the indefinite contract between a permanent teacher and a school district “shall continue in effect for an indefinite period,” subject only to six conditions, one of which is: “(5) Termination by the board of education after a hearing as hereinafter provided.”

§ 168.114 provides that an indefinite contract with a permanent teacher shall not be terminated by the board of education of a school district “except for one or more of the following causes.” The statute then lists six “causes,” one of which is: “(3) Incompetency, inefficiency or insubordination in line of duty.”

§ 168.116 outlines the procedure which must be followed before a board of education may terminate the indefinite contract of a permanent teacher. When the “cause” for termination is “incompetency, inefficiency, or insubordination in line of duty,” and if the teacher requests a hearing, § 168.116 requires that the following steps be taken:

1.The school board or the superintendent of schools shall give the teacher “warning in writing, stating specifically the causes which, if not removed, may result in charges.” This step must be taken at least 30 days before service of the notice mentioned in step 3.

2. “Thereafter” the superintendent (or his designated representative) and the teacher “shall meet and confer in an effort to resolve the matter.”

3. The teacher shall be served with a “notice of a hearing upon charges, together with copy of charges.” These charges shall be “written charges specifying with particularity the grounds alleged to exist for termination” of the indefinite contract.

4. The hearing shall take place not less than 20 nor more than 30 days after date of service of the notice mentioned in step 3.

Dameron contends that § 168.116 was violated in certain respects, including:

(a) The warning required by step 1 was defective in that it did not state specifically the causes “which, if not removed, may result in charges”;

(b) The charges required by step 3 were defective in that they failed “to specify with particularity” the grounds alleged to exist for termination of the indefinite contract;

(c) Dameron was not apprised of the specific grounds alleged to exist for termination prior to the hearing before the board and Dameron was not thereafter given an opportunity to correct the alleged deficiencies.

The board’s effort to comply with the warning required by step 1 consists of a letter dated February 9, 1973, from Superintendent Henningsen to Dameron. That letter reads:

“John Dameron

As executive officer of the Lebanon R— III Board of Education, I am giving you this warning in compliance with Section 168.116 RSMo 1970, of unsatisfactory work as a permanent teacher in the Lebanon R-III School system. These specific causes, as listed below, if not satisfactorily removed within thirty days of the above date, may result in a statement of charges being filed by the superintendent. The specific causes of your unsatisfactory work are:

1. Lack of effective planning and organizing.

2. Lack of effective use of materials.

3. Unsatisfactory skill in stimulating learning.

4. Unsatisfactory classroom atmosphere and rapport with pupils.

5. Unsatisfactory classroom control.

At your convenience within the next ten days, you should schedule a conference with your superintendent to meet and confer in an attempt to remove these specific causes of unsatisfactory work. If we have not heard from you, we will meet on the tenth day in the superintendent’s office at 4:00 p. m.”

Apparently Dameron received the letter on the day it was written.

On February 14, 1973, Superintendent Henningsen conferred with Dameron. According to Henningsen that conference achieved the following purposes:

1. Dameron was informed of the legal procedures which must be followed for termination of an indefinite contract;

2. Dameron was told he could submit a written statement to rebut “the listed specific deficiencies,” the latter apparently referring to the contents of the letter of February 9, 1973;

3. Dameron was informed that secondary administrators would visit his classes two or three times before March 5,1973, for the purpose of making additional evaluations;

4. Another conference was rescheduled for March 5 or March 6.

Superintendent Henningsen, in his testimony at the hearing before the board, admitted that in the conference of February 14, 1973, he did not “get any more specific with Dameron” with respect to the causes contained in the warning letter of February 9, 1973 — “I did not specifically speak beyond those five points.”

The board’s effort to comply with the “written charges” requirement of step 3 consists of a letter dated March 9, 1973, from Superintendent Henningsen to Dam-eron, which was delivered to Dameron six days later. The letter of March 9, 1973, reads:

“Dear Mr. Dameron:

As executive officer of the Lebanon R— III Board of Education, I am giving you this notice of official charges in compliance with section 168.116 RSMo 1970, with the intent to terminate your services as a permanent teacher in the Lebanon R — III school district effective June 30, 1973.

The specific charges of unsatisfactory work are:

1. Lack of effective planning and organizing.

2. Lack of effective use of materials.

3. Unsatisfactory skill in stimulating learning.

4. Unsatisfactory classroom atmosphere and rapport with pupils.

5. Unsatisfactory classroom control.

A hearing on these charges, if requested by you within 10 days, following the adopted R-III Board policy for procedures for the termination of a permanent employee, has been tentatively set for April 9, 1973.”

On March 29, 1973, Superintendent Hen-ningsen, in a letter to Dameron, advised him that the hearing before the board had been scheduled for April 12, 1973. The letter also stated: “According to board procedure a written statement of charges to be considered at the hearing will be presented to you a minimum of 24 hours before the hearing.”

The board had adopted certain regulations dealing with the hearing procedure for the termination of a permanent teacher. Among those regulations was Regulation 3B which reads: “The teacher shall have the right prior to the hearing to receive a written statement prepared by the person filing charges that sets forth all of the allegations to be considered at the hearing and to respond in writing to the statement of the person filing charges. This statement shall be delivered to the teacher a minimum of twenty four hours prior to the hearing.” It was Regulation 3B to which Henningsen referred in his letter of March 29, 1973.

On April 11, 1973, Superintendent Hen-ningsen delivered to Dameron’s wife a six-page document entitled “Charges against John Dameron for board hearing of April 12, 1973.” This document is identified as Exhibit 11.

Exhibit 11 was in outline form with five principal categories. Those categories were the five “specific causes of your unsatisfactory work” set forth in the letter of February 9, 1973, and were the same as the five “specific charges of unsatisfactory work” contained in the letter of March 9, 1973. Under each of the five principal categories Exhibit 11 listed specific items, each item describing a classroom observation of Dam-eron by one of his supervisors. Each item contained the name of the supervisor, the date of the observation, and what had been observed. The observations took place over a period of several months, the earliest being November 6, 1972, and the latest being March 6, 1973. Most of them occurred in January 1973 or earlier.

The things which were observed included the following: students were inattentive and working on other things; some students leaned back in their chairs; some students were tardy; some students stopped working during part of the class period; Dameron “did not work well in answering questions”; some students came to class without textbooks; in a German class, the use of a crossword puzzle in German was insufficient to occupy the class’s attention for the day; students conversed with each other and did not pay attention to the teacher; during a skit there was excessive noise which Dameron attempted, without success, to reduce; when the class was separated into groups, and Dameron moved from group to group assisting the students, many students “did nothing except when Dameron was with their group”; one student read a newspaper until reprimanded by Dameron; students were noisy during roll call; there was writing on radiators and pencil marks on the classroom walls; one student left class without permission; the classroom was “physically sloppy with desks out of order and paper on the floor.”

In addition to the foregoing, Exhibit 11 described an incident which took place on November 17, 1972, involving the grade card of a female student. The student felt the grade was too low and an argument ensued between the student and Dameron, during the course of which, according to the student, Dameron made the remark, “take it and shove it.” Exhibit 11 also contained ' the charge that Dameron had failed to write out the “curriculum guide for his speech classes.”

At 7 p. m. on April 12, 1973, the board held the hearing. Dameron and his attorney attended that meeting. Superintendent Henningsen represented the school administration. About 15 minutes before the hearing commenced, Dameron and his attorney were given a copy of Exhibit 11. Dameron’s attorney protested the holding of the hearing and asserted that the board had failed to comply with § 168.116. In essence his charges of noncompliance were the same as those which are asserted on this appeal. The attorney emphasized that the specific information contained in Exhibit 11 had not been received by Dameron until April 12, although he conceded that Mrs. Dameron had received Exhibit 11 on April 11. The board hearing of April 12 lasted until 10:20 p. m., at which time the board decided to recess until a later date.

On April 17, 1973, Superintendent Hen-ningsen wrote and delivered a letter to Dameron. This letter informed Dameron that he was being charged with inefficiency, that the “specific charges of inefficiency are:

(1) lack of effective planning and organizing;

(2) lack of effective use of materials;

(3) unsatisfactory skill in stimulating learning;

(4) unsatisfactory classroom atmosphere and rapport with pupils;

(5) unsatisfactory classroom control.”

An enclosure to the letter was Exhibit 11 which, according to the letter, constituted “six pages of statements referring with particularity to the grounds alleged to exist for the termination of this permanent contract.” The letter also enclosed the memo-randa made by the observers, of which Exhibit 11 was a summary. The letter concluded by informing Dameron that a hearing would be held on the charges if he requested it.

On May 30, 1973, the board reconvened. Dameron, through his attorney, revoiced the objections which he had made at the opening of the April 12, 1973 hearing. The board proceeded to hear additional testimony. Superintendent Henningsen and other administrators recommended that Damer-on’s contract be terminated. On June 12, 1973, the board reviewed the transcripts of the prior hearings, made certain “findings and decisions,” and voted to terminate Dameron’s contract.

Missouri cases which have considered the regularity of termination proceedings conducted under § 168.116 include Blue Springs Reorganized School District IV v. Landuyt, 499 S.W.2d 33 (Mo.App.1973) and Pollard v. Bd. of Ed. Reorg. Sch. Dist., Etc., 533 S.W.2d 667 (Mo.App.1976).

In Blue Springs there was an attempt to terminate a teacher’s contract for “incompetence, inefficiency, or insubordination in line of duty.” On March 8, 1972, in an effort to comply with the “warning” required by § 168.116-2, the board accused the teacher of the following:

(1) not following school policies;

(2) poor teacher-pupil relationship because of discipline;

(3) poor influence on pupil attitude.

The court held that these charges were too general to comply with § 168.116-2. At p. 36 the court pointed out that the purpose of the warning “is to give the teacher an opportunity to know exactly what the complaints against her are and to afford her a chance to cure the situation.” On the same page the court said: “General principles of law do not tolerate the maintenance of proceedings to terminate a teacher upon such noninformative allegations.” The court branded the “three generalized charges” as “pure ciphers.” The termination proceedings were held invalid and the court ordered reinstatement of the teacher.

In Pollard the board instituted a termination proceeding upon the ground of “incompetence, inefficiency, or insubordination in line of duty.” On March 20, 1973, in an attempt to comply with the “warning” required by § 168.116-2, the board notified the teacher “that improvement is needed in the following areas:

(1) Relationship with students
(2) Enthusiasm in teaching
(3) Disciplinary policies
(4) Relationship with parents.”

The letter of March 20, 1973, was held to be “totally insufficient” to meet the requirements of § 168.116-2. The court, at p. 670, said: “All four charges were so broadly drafted that Pollard had no way of knowing exactly how she should improve her conduct during the trial period. All of the charges were susceptible to such a wide variety of interpretations as to violate the general prohibition against proceedings to terminate a teacher upon non-informative allegations. . . . Without knowledge of'the specifics in which classroom conduct is deficient, a teacher who seeks to improve his or her teaching ability may find that such efforts result in classroom conduct that, in the minds of school authorities, is even less competent, less efficient, and less subordinate. In short, the teacher is caught in a double bind; the teacher must improve teaching qualities during the 30 day improvement period or risk termination. On the other hand, there is no assurance that any particular course of action undertaken by a teacher during this 30 day period will constitute sufficient improvement in the eyes of the board and school authorities. The teacher finds herself in a position of struggling blindly toward undefined and unknown standards of conduct. This defeats the purpose of the 30 day statutory improvement period.”

In Pollard, on May 17, 1973, the generalized warning contained in the March 20, 1973, letter was amplified in an apparent effort to comply with § 168.116-1 pertaining to the service of “charges.” Finding it unnecessary to rule on the sufficiency of the May 17, 1973 charges to meet requirements of § 168.116-1, the court said at p. 671: “Even if the charges listed in that letter be considered sufficiently specific, this was not enough to cure the defects of the allegations in the 30 day warning letter, and the May 17th letter could at best only trigger a new 30 day improvement period. The Board would then have been required to begin compliance at that point with the requirements of § 168.116, which was not done. In other words, if the May 17th letter be deemed properly specific, then it would constitute only a warning letter under subsection 2 and there would be no final termination notice as required by subsections 1 and 3.”

This court holds that the letter dated February 9, 1973, from Superintendent Henningsen to Dameron does not meet the requirements of § 168.116—2 with regard to the warning. The so-called “specific causes” set forth in that letter are not in fact specific. The letter of February 9,1973, did not give Dameron “an opportunity to know exactly what the complaints against him were.” Blue Springs, supra. As in Pollard, the causes set forth in the letter of February 9, 1973, to Dameron were so “broadly drafted” that Dameron “had no way of knowing exactly how [he] should improve [his] conduct during the trial period.”

Similarly, the letter of March 9, 1973, did not comply with § 168.116 with regard to “written charges” for the reason that the so-called “specific charges” contained in that letter were too general. They did not specify “with particularity the grounds alleged to exist for termination” and thus fell short of compliance with § 168.116-1.

Foreign authorities consistent with this holding include Lawson v. Wayne Community School Dist., 63 Mich.App. 57, 233 N.W.2d 713, 714[2, 3] (1975); Sorin v. Bd. of Educ., 39 Ohio Misc. 108, 315 N.E.2d 848, 853[4, 6] (1974); Board of Trustees, Laramie Cty. Sch. D. No. I v. Spiegel, 549 P.2d 1161, 1170[1] (Wyo.1976).

It is the position of the school board that the letter of February 9, 1973, satisfied the “warning” requirement and the letter of March 9, 1973, satisfied the “written charges” requirement of § 168.116. This position is untenable in light of Blue Springs and Pollard. The first time Dam-eron received specific information concerning the nature of the complaints against him was on April 12, 1973, when he and his attorney were given a copy of Exhibit 11. Exhibit 11 also had been delivered to Dam-eron’s wife, for transmission to him, on April 11, 1973. Although this court need not and does not rule on the adequacy of the contents of Exhibit 11 to constitute “inefficiency” within the meaning of § 168.-114, Exhibit 11 did meet the specificity requirements of the warning called for by § 168.116-2. However, before he received Exhibit 11, Dameron was not apprised of the specific causes of his alleged inefficiency-

Comparison of the generality of the letters of February 9 and March 9 with the specificity of Exhibit 11 may reveal an intention to evade the statutory demand for timely particularity.

The board, by its Regulation 3B, gave Dameron the right to receive, 24 hours prior to the hearing, “a written statement prepared by the person filing charges that sets forth all of the allegations to be considered at the hearing.” However, the statutory rights which Dameron had under § 168.116, including receiving a warning coupled with 30 days “to cure the situation,” Blue Springs, supra, could not be divested by the board, and the latter’s compliance with Regulation 3B is no justification for its noncompliance with the statute.

The board does not rely upon Exhibit 11 as constituting its compliance with § 168.-116-2. If it be assumed that Exhibit 11 was a sufficient “warning,” the board does not claim that after its delivery to Dameron on April 12, or to his wife on April 11, the subsequent steps prescribed by § 168.116 were taken. Superintendent Henningsen’s letter of April 17, 1973, to Dameron was ineffective as a compliance with § 168.-116 — 1 for the reason that 30 days did not intervene between the April 12 (or April 11) warning and the April 17 charges. Moreover, once Dameron had received Exhibit 11, there was no conference “thereafter” between Dameron and the superintendent in an effort to resolve the matter, as required by § 168.116-2.

The contents of the letters of February 9, 1973, and March 9, 1973, were no more than “noninformative allegations” of the type proscribed by Blue Springs and Pollard. The language of § 168.116, including the phrase “specifying with particularity” describing the “written charges,” is unmistakable. Clarity and emphasis were achieved by resort to redundancy. The legislature demonstrated its intention that an indefinite contract, and perhaps a professional career itself, should not be imperiled by mere platitudes.

The judgment is reversed and the cause is remanded with instructions to the trial court to enter judgment, under the provisions of § 168.120 — 4, restoring Dameron to permanent teacher status and ordering that he receive compensation for any period for which he was suspended from work and further providing, pursuant to § 168.116-4 (subject to the doctrine of mitigation held applicable in Pollard v. Bd. of Ed. Reorg. Sch. Dist., Etc., 533 S.W.2d 667, 671[7] (Mo.App.1976) based on Wolf v. Missouri State Training School for Boys, 517 S.W.2d 138 (Mo. banc 1975)) that he be paid his salary lost during the pendency of the appeal.

All concur.

STONE, J., not participating.

      . See § 168.104(4) RSMo 1969, V.A.M.S.

      . Dameron prepared and submitted the curriculum guide shortly after receiving Exhibit 11.


author: WASSERSTROM, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Michael DOOLEY, Appellant.
    No. KCD 28790.
    Missiouri Court of Appeals, Kansas City District.
    April 4, 1977.

      Joseph Hamilton Scott, Public Defender, St. Joseph, for appellant.
    John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   WASSERSTROM, Presiding Judge.

The jury found defendant guilty of the sale of controlled substance in violation of Chapter 195 RSMo 1969. Sentencing having been left to the trial judge by the jury, the judge fixed sentence at one year in the county jail and a fine of $1,000. On this appeal, defendant assigns four points of error. None of these warrants reversal.

The evidence, taken most favorably to the State, shows the following facts. In early 1974, Drug Enforcement Administration agents Cecil O’Rear and Larry Sprouse were working undercover in Buchanan County, Missouri, and were utilizing the services of an informer, Bob Smith. Smith introduced the agents to defendant. Those four individuals met together on the afternoon of March 12, 1974, and talked about obtaining some MDA (methylenediox-yamphetamine). The defendant told the agents that he could obtain some “later on that day.” The group then proceeded to a pizza restaurant where defendant made a phone call and said it would be a while before they could get the MDA. Then the group went to several taverns in the St. Joseph area, following which they went to a residence where defendant went in and came back out with Patty Hendrix and Nancy Eberting.

This enlarged group then went to another restaurant where defendant and the two women made several telephone calls. Hendrix reported as a result of her calling that they would have to go to Atchison, Kansas, to get the MDA.

Thereupon these parties drove to a trailer park where Hendrix, Eberting, Sprouse and the defendant went into a trailer occupied by Jack Thompson. After a while O’Rear and Smith tired of waiting outside in the car, and they went to the door of the trailer to enter and join those inside. Defendant immediately accosted them and warned them not to come in because Thompson was “paranoid” about meeting more than one stranger at a time.

Thompson and defendant went into a bedroom in the trailer and after a few minutes called Sprouse to join them. Thompson and the defendant were sitting on the bed. Thompson told Sprouse that he had the MDA which was laced with LSD and that he would have to have $55 in payment. Sprouse gave Thompson the money and obtained a packet of purported MDA. He went to the bathroom and performed a chemical field test, the result of which was positive for MDA.

Sprouse, defendant, Hendrix and Ebert-ing then left the trailer and, together with O’Rear and Smith, drove back to the residence of the young women. At that point, defendant told Sprouse he would like to see the MDA to make sure that they had received a good deal. When Sprouse let defendant see the packet, defendant scooped out a portion and stated that was his “copping fee.”

I.

Defendant states as his first Point Relied On that the trial court erred by admitting evidence: (a) to the effect that the role of the informant Smith was to introduce the DEA agents to narcotics dealers and that without him they would sometimes be unable to penetrate “the organization;” and (b) as to how agent O’Rear dressed and acted while on assignment in Buchanan County. Defendant argues that the evidence mentioned was irrelevant and prejudicial in that it implied defendant was a member of the drug culture or a drug seller and attempted to prove “guilt by association.”

A certain amount of background information, even though not direct evidence, is admissible as part of the res ges-tae. This principle applies where the acts in question “preceded the offense immediately or by a short interval of time and tends to elucidate a main fact in issue.” State v. Taylor, 508 S.W.2d 506 (Mo.App.1974). Under this principle, background evidence of the general character now challenged by defendant has been permitted in order to help the jury to understand the testimony. State v. Wesson, 83 N.M. 480, 493 P.2d 965 (1972). The evidence here in question constitutes the type of preliminary matter which may be gone into as part of “the history of the case.” State v. Warters, 457 S.W.2d 808, 814 (Mo.1970).

So far as the objection concerns the testimony of agent O’Rear that “sometimes without an informant we wouldn’t be able to penetrate into the organization itself,” it must be observed that this portion of O’Rear’s testimony was volunteered in an answer which went beyond the question asked of him. An objection to pursuing the line of inquiry was sustained by the trial court. No further relief was requested with respect to this matter by the defense, and no complaint in this regard can legitimately be made now.

II.

Defendant next contends that the trial court erred by failing to grant defendant’s motions for acquittal, because of insufficiency of the evidence. He argues that the evidence shows only that he was present at the scene of the crime but fails to show that he did anything to aid or encourage the sale of MDA by Thompson to Sprouse.

This argument ignores the facts. Defendant was the one who initiated the daylong hunt for MDA when he first told the agents that he thought he would be able to obtain some. He was the one who located Eberting and Hendrix and brought them into the picture. He actively participated in the activities inside Thompson’s trailer and was the one who sat alongside Thompson inside the bedroom when the sale was consummated. Most tellingly of all, he claimed credit for procuring the sale and insisted upon taking a “copping fee” for having accomplished it. Under these facts, defendant was even more the “prime mover” than was the defendant convicted under quite similar facts in State v. Taylor, 375 S.W.2d 58, 63 (Mo.1964).

III.

Defendant next contends that the trial court erred by allowing the prosecutor to inquire of Thompson whether he had been convicted of the sale of MDA, for the reason that Thompson had not yet been sentenced for that sale. He relies upon State v. Frey, 459 S.W.2d 359 (Mo.1970) which holds that sentence must have been imposed before there can be a final judgment and a “conviction” for the purpose of impeaching credibility. In this connection, defendant points out that although Thompson had pleaded guilty to the offense of selling MDA, he had not as yet been sentenced at the time of the instant trial.

Defendant’s contention misstates the record. The prosecutor did initially undertake to impeach Thompson on the basis of his having been “convicted” of the MDA sale. However, the trial court sustained objection to that inquiry. What the prosecutor was finally permitted to do was to inquire of Thompson whether he had pleaded guilty to the sale of MDA. That inquiry related to the admission of a crime, and the answer was admissible independent of the conviction. State v. Foster, 349 S.W.2d 922 (Mo.1961); State v. Summers, 506 S.W.2d 67 (Mo.App.1974); State v. Lynch, 528 S.W.2d 454 (Mo.App.1975).

IV.

Por his final point defendant contends that the trial court erred by failing to grant a new trial because of improper conduct by the prosecutor. The conduct complained of refers to the opening statement in which the prosecutor referred to the general operation of the DEA and the drug problem in Buchanan County; the attempt by the prosecutor to introduce evidence concerning how the DEA operated and the drug problem in Buchanan County; the introduction of evidence that the agents let the defendant think whatever he wanted as to their identity including thinking that they were involved in organized crime; the attempt to introduce evidence as to defendant’s appearance and manner of dress when he first met the agents; the reference in closing argument to Smith as one who would make contact for the agents with sellers of drugs; and the prosecutor’s reference in closing argument to defendant as a drug dealer and the desirability of giving a warning to drug sellers that citizens of the community would not put up with the selling of drugs “to our children.”

So far as evidence about general operation of the DEA and the general drug problem is concerned, some preliminary background information was properly admissible as already discussed under point I of this opinion. Actually the amount of evidence along this line was very limited and was cut short at an early point by the trial court. The general subject was appropriate, at least to a limited extent, and the prosecutor cannot be charged with any grossly improper conduct by simply attempting (unsuccessfully) to pursue the subject a bit too far.

Respecting the testimony by agent O’Rear that he let defendant think whatever he wanted, even to the extent of believing that he and his partner might be “organized crime people,” defendant made no objection to that statement and asked no relief with respect to it at the time. This objection, to whatever extent it might otherwise be valid, now comes too late.

Respecting the effort to introduce evidence concerning defendant’s personal appearance, the trial court sustained objection to the evidence and the subject was not pursued. The asking of this question was not the type of deliberate, repeated, aggravated conduct by a prosecuting attorney which calls for supervising discipline from an appellate court and which is the subject of cases such as State v. Burns, 286 Mo. 665, 228 S.W. 766 (1921) and State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524 (1947), relied upon by defendant.

As for defendant’s objection to the references in closing argument to sellers of drugs and the prosecutor’s inclusion1 of defendant within that class, that argument was within the evidence which had been offered to the jury, and the argument was therefore permissible. State v. Taylor, 508 S.W.2d 506 (Mo.App.1974).

Nor is the fleeting reference to “our children” in the prosecutor’s closing argument, in the context of a plea for the importance of law enforcement, such an objectionable personalization that a new trial should be granted. State v. Charlton, 465 S.W.2d 502, 504-505 (Mo.1971). Moreover, no objection was made to this portion of the argument at the time, and the point therefore has not been preserved for appellate review; and the point does not constitute “plain error” under Rule 27.20(c). State v. Hill, 539 S.W.2d 521, 530 (Mo.App.1976).

Affirmed.

All concur.


author: HENRY, Justice.

text:
    Bobby Joe WRIGHT, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    April 11, 1977.

      Charles P. Dupree, Chattanooga, for petitioner.
    Brooks McLemore, Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, Stephen M. Bevil, Thomas J. Evans, Asst. Dist. At-tys. Gen., Chattanooga, for respondent.
   OPINION

HENRY, Justice.

Petitioner was convicted of petit larceny in the Criminal Court at Chattanooga and sentenced to serve not less than two (2) nor more than five (5) years in the penitentiary. His conviction was affirmed, in a split decision, by the Court of Criminal Appeals.

In his petition for certiorari filed in this Court, he insists (1) that the trial judge committed prejudicial error in not requiring the State to produce signed statements of the witnesses at the preliminary hearing; (2) that his conviction for larceny cannot stand because there was no evidence of the essential element of trespass, and (3) that the trial judge erred in not charging the jury that shoplifting is a lesser included offense in cases charging larceny and, therefore, that he should have been permitted to argue the shoplifting statute to the jury. We granted certiorari to treat with these insistences.

This is a shoplifting case. Petitioner removed merchandise having a value of less than one hundred ($100.00) dollars from a display counter at J. C. Penney’s and was apprehended outside the store, with it in his possession.

I.

We are unable to address the first issue authoritatively and with finality because the record does not reveal the existence of any signed statements made at the preliminary hearing. Section 40-1115, T.C.A., relating to preliminary hearings, provides:

The evidence of the witnesses examined shall be reduced to writing by the magistrate, or under his direction, and signed by the witnesses respectively. (Emphasis supplied).

This statute has been in existence for well over a century. Its meaning is clear— its provisions mandatory. That it is un-wiéldly, unworkable, and unrealistic affords no justification for its violation and yet we must recognize that its breach is a pattern of practice in preliminary hearings conducted in this state.

This statute, and other provisions of Chapter 11, Title 40, Tennessee Code Annotated, prompted this Court to submit to the Legislature, as a part of proposed Rules of Criminal Procedure, Rule 5.1, designed to replace the existing procedure with one more realistic and reasonable. This proposal now pends before the Legislature.

In the meantime the old law and procedure remain in effect. While the testimony of a witness at the preliminary hearing is not normally admissible at the ensuing trial, Hall v. State, 65 Tenn. 522 (1873), statements taken and signed pursuant to Sec. 40-1115 T.C.A. become a part of the file, become public records, and are available to the defendant and his counsel. Their admissibility is not a condition of their availability.

We overrule this assignment because the record is silent as to material particulars. What we have said thus far is for the guidance of the trial judge on remand.

We proceed to the remaining issues.

II.

Petitioner insists that his conviction for larceny may not stand because there was no evidence of trespass.

It is established law in this jurisdiction that the essential elements of larceny are trespass and feloniously taking and carrying away. There must be a trespass, a taking and an asportation. Caruso v. State, 205 Tenn. 211, 326 S.W.2d 434 (1958).

The sole dispute on these elements in this appeal relates to the matter of trespass.

It has been established in this jurisdiction since Tennessee was a part of North Carolina that the essence of the offense is that the goods be taken against the will of the owner; or, phrasing it another way, to constitute larceny there must be a trespass in the taking. State v. Long, 2 N.C. 177, 1 Hayw. 154 (1795).

Our early cases make it clear that larceny requires a trespass in the original taking, State v. Braden, 2 Tenn. 66 (1805); and that trespass is an offense against the possession of the owner, Lawrence v. State, 20 Tenn. 228 (1839); Pritchett v. State, 34 Tenn. 285 (1854), but the possession may be constructive, Pyland v. State, 36 Tenn. 357 (1857). A particularly significant early case is R. H. Defrese v. State, 50 Tenn. 53 (1870) wherein the Court held that when the owner did not part with possession willingly, or when there was a fraudulent appropriation, there was “a wrong, trespass, a violation of the possession”. 50 Tenn. at 61.

In Busler v. State, 181 Tenn. 675, 682, 184 S.W.2d 24 (1944) the Court notes that larceny “has been characterized as a criminal trespass upon the right of possession.”

In Burdick, Law of Crimes (1946) at Section 522, trespass, in the sense used in larceny cases, is defined thusly:

Trespass is a wrong to another’s possession or any wrongful dealing, invito domino, with the property of another, being, in larceny, the unlawful taking of personal property from the possession of another without his consent.

We approve this definition. Indeed it is implicit in Sec. 39-4202, T.C.A., which reads as follows:

Larceny is the felonious taking and carrying away the personal goods of another

It is unimportant, in a shoplifting context, whether the initial act in removing goods from the shelf was for the fraudulent and wrongful purpose of reducing them to possession in violation of the rights of the owner, or whether it was for the legitimate and invited purpose of examination with a view to purchasing, followed by a decision to reduce them wrongfully to possession. The result is the same. The implied consent of the storekeeper extends only to inspection of merchandise and selection for purchase. The instant one determines to purloin the property the conversion is complete and trespass has occurred.

We hold that the essential element of trespass was established in this case, along with the other essential elements of both larceny and of shoplifting.

III.

The essential elements of the crime of shoplifting are “(1) willfully taking possession of merchandise offered for sale in a mercantile establishment, (2) with the intention of converting the same to the taker’s own use without paying the purchase price thereof.” Yearwood v. State, 2 Tenn.Cr.App. 552, 455 S.W.2d 612, 617 (1970).

It is evident that in any situation wherein the shoplifting statute is applicable, the elements of larceny and shoplifting are all but identical; any difference is largely semantic.

The first essential element of the offense of larceny is trespass — an offense against the possessory interest of another. The first element of shoplifting is willfully taking possession of merchandise offered for sale. This is a trespass. The fact that it is offered for sale only serves to identify a type of larceny generally known as shoplifting.

The second essential element of larceny is a felonious taking. The word felonious must be equated with wrongful or fraudulent, and does not necessarily mean that the act must be a felony. Again the first element of shoplifting is a taking. Actually, there is a redundancy in the elements of larceny in that the trespass is the taking and the taking is the trespass.

The third element of larceny is the carrying away — asportation. The second element of shoplifting is a wrongful conversion or appropriation which is established by proof of carrying away without payment of the purchase price. Hence we have as-portation in shoplifting, even though the defendant does not actually leave the premises.

With this background, we look to Yearwood v. State, 2 Tenn.Cr.App. 552, 455 S.W.2d 612 (1970), a shoplifting case, wherein the Court of Criminal Appeals upheld a conviction of larceny. There the Court held that the “[sjhoplifting statutes create a separate and distinct offense from that denounced by the general larceny or theft statutes . . . .” 455 S.W.2d at 616; that “the essential elements of larceny and shoplifting are by no means the same”, 455 S.W.2d at 617 and that “[t]he crime described in the shoplifting statute is not an offense necessarily included in the crime of larceny . . . ” Ibid.

The Court laid down an “infallible test” for determining what constitutes a lesser included offense:

. the lesser included offense must be such that it is impossible to commit the greater without first having committed the lesser. 455 S.W.2d at 616—17

We agree that this is a valid test, but, when we subject the question presented to the test, we reach a different conclusion. In our view it would be utterly impossible to make out a case of petit larceny of merchandise from a retail mercantile establishment without establishing shoplifting.

We think a better test was laid down by this Court, speaking through the late Justice Weldon White, in Johnson v. State, 217 Tenn. 234, 397 S.W.2d 170 (1965):

The true test of which is a lesser and which is a greater crime is whether the elements of the former are completely contained within the latter, so that to prove the greater the State must first prove the elements of the lesser. 217 Tenn. at 243, 397 S.W.2d at 174.

Again, proof of larceny of merchandise from a retail establishment perforce of necessity’ involves proof of the essential elements of shoplifting.

We think the instant case is analogous to the factual and legal situation presented in Spencer v. State, 501 S.W.2d 799 (Tenn.1973). There the Court held that “joyriding” as denounced by Sec. 59-504, T.C.A., is a lesser included offense to larceny, and that the joyriding statute should be charged upon defendant’s request therefor. The Court said:

From a careful examination of the elements of both crimes, it is clear that the only difference in the two is that in “joyriding” there is not the element of intent to steal. Thus, we hold that the “joyriding” statute, § 59-504, T.C.A., stands as an included offense of larceny. 501 S.W.2d 800.

We hold that shoplifting, as denounced by Sec. 39-4235, T.C.A., is a lesser included offense within petit larceny. The failure of the trial judge to so instruct the jury and to permit appropriate argument was plain and prejudicial error.

Independent of the special request made in this case it is the duty of the trial judge to give such a charge without request. Sec. 40-2518, T.C.A.

Reversed and remanded.

COOPER, C. J., and FONES, BROCK and HARBISON, JJ., concur.

      . An excellent treatment of trespass will be found in Black’s Law Dictionary, Revised Fourth Edition at pages 1674-75. See also 52A C.J.S. Larceny §§ 1(1) and 7, and 50 Am.Jur.2d, Larceny, Sections 14, 23 and 28.

      . Sec. 39-4235, T.C.A. provides, in pertinent part: Any person who shall willfully take possession of any goods, wares or merchandise not exceeding the value of one hundred dollars ($100) offered for sale by any store or other mercantile establishment with the intention of converting the same to his own use without paying the purchase price thereof, shall be guilty of the offense of shoplifting and shall be punished by a fine of not more than three hundred dollars ($300) or imprisonment for not more than six (6) months, or both.