author: BROWN, Commissioner. DOUGLAS, Judge

text:
    Ex parte Charles Elton WILSON. Ex parte Chris Phillip KIBBE.
    No. 50513.
    Court of Criminal Appeals of Texas.
    Sept. 23, 1975.
    Goodwin & Hawthorn, Beaumont, for Wilson.
    James S. McGrath, Beaumont, for Kibbe.

      Tom Hanna, Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

These are appeals from an order of the CAninal District Court of Jefferson County denying appellants’ applications for a writ of habeas corpus and refusing the appellants’ applications for bail. Appellant Charles Elton Wilson and appellant Chris Phillip Kibbe both stand indicted for the offense of capital murder.

The Constitution of the State of Texas, Art. 1, Sec. 11, and the Code of Criminal Procedure, Art. 1.07, both provide that all prisoners are entitled to bail except those charged with a capital offense “when the proof is evident.”

The term “proof is evident” means that the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense of capital murder has been committed; that the accused is the guilty party; and that the accused will not only be convicted but that the jury will return findings which will require a sentence of death. Ex parte Sierra, 514 S.W.2d 760 (Tex.Cr.App.1974); Ex parte Forbes, 474 S.W.2d 690 (Tex.Cr.App.1972); Ex parte Short, 462 S.W.2d 281 (Tex.Cr.App.1971); Ex parte Colbert, 452 S.W.2d 454 (Tex.Cr.App.1970); Ex parte Collins, 168 Tex.Cr.R. 500, 330 S.W.2d 194; Ex parte Thrash, 167 Tex.Cr.R. 409, 320 S.W.2d 357; Ex parte Washburn, 161 Tex.Cr.R. 651, 280 S.W.2d 257; Ex parte Roberts, 151 Tex.Cr.R. 547, 209 S.W.2d 361; Ex parte Suger, 149 Tex.Cr.R. 133, 192 S.W.2d 159; Ex parte Shults, 127 Tex.Cr.R. 484, 77 S.W.2d 877. See generally 7 Tex.Jur.2d, Rev., Part 2, Bail and Recognizance, Secs. 16-22.

The burden of proof is on the State to establish that the proof is evident. Ex parte Sierra, supra; Ex parte Forbes, supra; Ex parte Short, supra; Ex parte Paul, 420 S.W.2d 956 (Tex.Cr.App.1967). The State must introduce evidence that the jury would not only convict the accused, but would return findings which would require a sentence of death. Ex parte Sierra, supra; see Art. 37.071, V.A.C.C.P.

It is the firmly established policy of this Court to refrain from setting out the facts in detail or commenting on the sufficiency of the evidence since the case has not yet been tried on the merits. Ex parte Sierra, supra; Ex parte Paul, supra.

The decision of the trial judge that the proof was evident is entitled to weight on appeal, but it is the duty of this Court to examine the evidence and to determine for ourselves if bail was properly denied. Ex parte Hickox, 90 Tex.Cr.R. 139, 233 S.W. 1100.

The record before us reflects that the body of Frank Graffagnino was found buried in a shallow grave in a wooded area of Jefferson County in mid May, 1975. An examination of the body disclosed bruises, a fractured leg, and fractured ribs. The cause of death was suffocation resulting from the aspiration of the stomach contents.

The State introduced evidence that would link the appellants to the death of Frank Graffagnino. The record could circumstantially support the State’s allegations of kidnapping. Motive is shown by an affidavit that indicates that the deceased was having an affair with the wife of the appellant Kibbe.

In order for the sentence of death to be imposed, there must first be a conviction of capital murder. The State must then prove beyond a reasonable doubt that: (1) The conduct of the accused that caused the death of the deceased was committed deliberately and with the reasonable expectation the death of the deceased or another would result; (2) There is a probability that the accused would commit criminal acts of violence that would constitute a continuing threat to society; (3) If raised by the evidence, that the conduct of the accused in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975).

We have carefully reviewed the record before us and cannot conclude that the proof is “evident” that the jury would answer the required questions in the affirmative as required by Art. 37.071, V.A.C. C.P.

The judgment of the trial court in denying bail to the appellants is reversed. Appellant Charles Elton Wilson is granted bail in the sum of $20,000.00. The appellant Chris Phillip Kibbe is granted bail in the sum of $40,000.00.

Opinion approved by the Court.

DOUGLAS, Judge

(dissenting).

The brief of the Honorable Tom Hannaj Criminal District Attorney of Jefferson County, in Kibbe’s case is adopted as the dissenting opinion as to both Kibbe and Wilson to avoid duplication. With formal parts omitted it is as follows:

“The Trial Court did not err in denying Appellant’s motion because the evidence herein amply supports its finding of ‘proof evident’ that a dispassionate jury will likely convict the Appellant of capital murder and assess his punishment at death.

“(1) There is ample uncontradicted evidence to sustain the Court’s finding that the deceased was kidnapped by Appellant and his co-party, Wilson.
“(2) There is ample uncontradicted evidence to support the Court’s finding that there is proof evident that the Appellant is guilty of capital murder.
“(3) There is ample evidence to sustain the Court’s finding that a dispassionate jury will assess the Appellant’s punishment at death.
“ARGUMENT AND AUTHORITIES
“ ‘(1) There is ample uncontradicted evidence to sustain the Court’s finding that the deceased was kidnapped by Appellant and his co-party, Wilson.’

“Our law provides that no person may be denied bond, except in capital cases where the proof is evident. Constitution Article I, Section 10; Article 1.07 Code of Criminal Procedure. The only capital offense provided under our law at the present is capital murder as defined in Section 19.03 of the Penal Code and as procedurally implemented by Article 37.071 of the Code of Criminal Procedure. This statute is constitutional and enforceable. Jurek v. State, 522 S.W.2d 934 (# 49416, Cr.App.1975).

“Capital murder is committed when one intentionally or knowingly causes the death of an individual while in the course of committing or attempting to commit kidnapping. Section 19.03(a)(2), Penal Code.

“Kidnapping is defined as the intentional or knowing abduction of another. Section 20.03, Penal Code. If that abduction is done with the intent to inflict bodily injury on the victim to facilitate the commission of a felony, or to terrorize the victim or another, then the offense becomes aggravated kidnapping. Article 20.04. The indictment in this case alleges murder while in the commission of aggravated kidnapping with intent to inflict bodily injury and with intent to facilitate the murder of Frank Graf-fagnino (R. 191-192).

“ ‘Abduction’ is defined as ‘restraining’ a person with the intent to prevent his liberation by (1) hiding him in a place where it is not likely to be found, or (2) using or threatening to use deadly force. Section 20.01(2)(A)(B). ‘Restraint’ is defined as restricting a person’s movement so as to substantially interfere with his liberty, by moving that person from one place to another, or by confining that person. The restraint lacks consent if it is accomplished by force, intimidation, or deception. Section 20.-01(1)(A), Penal Code.

“The evidence shows, without contradiction that Frank Graffagnino was restrained by force and was abducted by secreting and hiding by Appellant and his co-conspirator Charles Elton Wilson.

“Witness Carolyn Dixon testified that she heard a muffled, scared voice begging or crying (R. 16-17), that she saw movements that led her to believe that Appellant and Wilson were loading something into the rear (trunk) of Appellant’s auto at sometime after 10:30-11:00 p. m. on February 26, 1975, (R. 16-18) that they had trouble closing the trunk (R. 18) and that after the trunk was closed she heard one of the co-conspirators ask ‘if she or he could breathe?’ (R. 25).

“Witness Joe Dorman testified that at approximately 1:00-2:00 a. m. on February 27, 1975, the Appellant and Wilson came to his house in Appellant’s auto (R. 28-29), that Appellant asked if ‘they could come inside’ and told the witness that ‘I have Frankie in the car and I have just whipped his ass.’ (R. 31, 54, 60, 70), that Wilson urged Appellant to leave and that they left together (R. 31), that they returned that same day at about 3:00 p. m. in Wilson’s truck and the witness was told by Appellant to ‘forget about last night,’ them coming by, or he would be next (R. 34), that the two returned that night about midnight and forced the witness to drive them to the place where the body of the deceased was ultimately found, where he let them out, and picked them up an hour later (R. 36-47).

“The witness Kenneth Dixon testified that he observed Wilson and Appellant dragging someone into Wilson’s house involuntarily (R. 78-81), that something resembling a body was placed in the trunk of Appellant’s car (as earlier described by the wife) and the trunk was closed (R. 87). This witness also heard the remark made by Appellant asking if ‘he’ or ‘she’ could breathe (R. 87). He also saw them drive off in the early morning hours of the 27th of February.

“Finally, Witness Calise Blanchard testified that when the body of deceased was found he was nude except for pants pulled down around his ankles which were bound with a rope (R. 132). The body was found where Dorman took officers and described letting off Appellant and Wilson.

“The net effect of the evidence is to establish that Appellant and Wilson, acting together as parties (Sec. 7.02, Penal Code) and as co-conspirators restrained, abducted, and kidnapped Frankie Graffagnino, secreted him in Defendant Wilson’s home and Appellant’s auto trunk, tied him with ropes and inflicted bodily injury on him. This evidence is uncontradicted and is sufficient to prove aggravated kidnapping as alleged in the indictment.

“ ‘(2) There is ample uncontradicted evidence to support the Court’s finding that there is proof evident that the Appellant is guilty of capital murder.’

“In addition to the requirement that aggravated kidnapping be shown as outlined above, the State must show that there is proof evident that the Appellant will be found guilty of capital murder.

“ ‘Proof evident’ has been defined in many cases and Texas law seems settled that it means that the State has the burden of proving that ‘the accused, with cool and deliberate mind and formed design, maliciously killed the deceased and that upon a dispassionate hearing of the facts before the Court a jury would upon such evidence, not only convict but would assess the death penalty.’ Ex parte Short, 462 S.W.2d 281 (1970); Ex parte Forbes, 474 S.W.2d 690 (1972); Ex parte Sierra, 514 S.W.2d 760 (1974).

“The evidence, again uncontradicted and without any evidence of a defense or extenuating circumstances supports such a cool, deliberate, intentional murder.

“The testimony of Dorman again shows that the two actors had ‘Frankie’ (R. 31, 53, 54, 60, 70), took Dorman to the place where the body was ultimately found (R. 37-43), spent about one hour alone in the woods where the body was found (R. 39-40), were spent and tired when picked up (R. 40 — 41), and Appellant stated as they drove away, ‘May he rest in peace’ (R. 41).

“In addition, the testimony of Blanchard confirms Appellant’s assertion that he had ‘whipped his ass’ by showing that the deceased had multiple bruises on his hand, chest and back, had a compound fracture of the left leg, had five ribs broken from the sternum, and had X marks cut into his buttocks. (R. 132-134).

“Cause of death was shown to be asphyxia due to compression of the chest and aspiration of gastric contents (R. 136). This is entirely consistent with the wounds described above and great pressure being applied to the sternum.

“The attempt to hide the crime is admissible and probative evidence of the intent of the parties to kill the deceased and to escape detection.

“The evidence concerning the extent of the injuries has been held to be probative of the ‘cruel and deliberate mind’ of the Defendant and shows malice. Ex parte Roberts [169 Tex.Cr. 311], 334 S.W.2d 171 (1960).

“The lack of motive cited by Appellant as grounds for mitigation shows instead the barbarity of the attack and may be considered by the Court as the presence of malice. See Ex parte Gibson [149 Tex.Cr.R. 573], 197 S.W.2d 543 (1946). Roberts, cited above, also points out that the sheer ferocity of the assault may be considered by the Court in determining whether the offense is bailable. It should further be noted when assessing this testimony that the deceased and Kibbe were considered friends (R. 53).

“Finally, the threats leveled at the witness Dorman (R. 33-35; 42; 45-46; 51; 54-55; 57-58; 59-60; 62, 63; 66-67) are proof of the intent of the parties to have their way with the deceased and escape detection by placing the known witness in fear (R. 63, 64; 66-67). Appellant cannot contend that these were made by Wilson and without his knowledge or consent since they were made by him, and were part and parcel of the conspiracy during its execution.

“There is absolutely no evidence of any defense, and excuse, or any extenuation of the circumstances. Where no such evidence exists, and where there is evidence of a capital murder, the discretion of the Trial Judge should not be disturbed since no abuse is shown. Ex parte Smithwick [154 Tex.Cr.R. 105], 225 S.W.2d 107, [187] (1950); Ex parte Cogdell [157 Tex.Cr.R. 187], 247 S.W.2d 888 (1952).

“In conclusion, the evidence shows that the Appellant, alone or in concert with Wilson, deliberately, maliciously, and intentionally beat and stomped the deceased to death while he was a kidnapping victim as alleged in the indictment.

“ ‘(3) There is ample evidence to sustain the Court’s finding that a dispassionate jury will assess the Appellant’s punishment at death.’

“The test required for assessing the death penalty is now incorporated into Article 37.071, Code of Criminal Procedure. The three questions that are to be propounded are adequately covered by the evidence here.

“First, see the discussion under (2) above as to the intentional nature of the killing and the lack of evidence to the contrary.

“Second, the evidence shows Appellant to be an adult male in his 20’s (R. 27), that he had no motive other than personal satisfaction in what was being done, and that he willingly participated in the restraint, abduction, beating, burial, and attempt to elude detection. The nature of the offense itself is eloquent evidence of the propensity of this Appellant for violence and is ample ground to justify the Court’s finding that a jury would likely find this man a ‘probable’ candidate to repeat. Jurek v. State, supra.

“The threats made to Dorman and the obvious fear evidenced by this witness who knew both Appellant and Wilson is further proof of the likelihood that this Appellant would probably be a future danger to society and is probative evidence to support the Court’s finding (R. 46, 66).

“Third, there is no evidence in this Record to support the submission of provocation on the part of the deceased.

CONCLUSION

“There is ample evidence to support the Court’s finding that proof evident existed that the Appellant would be found guilty of capital murder in the commission of kidnapping as alleged in the indictment and would have the death penalty assessed.”

The judgments should be affirmed.

      . Sec. 7.02. Criminal Responsibility for Conduct of Another.
      (a) A person is criminally responsible for an offense committed by the conduct of another if: . . .
      (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or .
      (b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.


source: Caselaw Access Project

author: FINCH, Judge. HENLEY, Judge

license: Public Domain

text:
    STATE of Missouri ex rel. WEATHERBY ADVERTISING COMPANY, INC., Relator, v. The Honorable Frank CONLEY, Judge of Division II of the Thirteenth Judicial Circuit, Respondent.
    No. 59005.
    Supreme Court of Missouri, En Banc.
    July 21, 1975.
    Rehearing Denied Sept. 8, 1975.

      Hendren & Andrae by Alex Bartlett, Jefferson City, for relator.
    Bruce A. Ring, Thomas E. Cheatham, State Highway Com’n, Jefferson City, for respondent.
    John W. Ellinger, Jefferson City, for in-tervenor.
   FINCH, Judge.

This is an original proceeding in prohibition wherein relator seeks to prohibit respondent judge from proceeding with two multi-tract condemnation actions filed by the Missouri State Highway Commission (hereinafter referred to as Commission) seeking to condemn land for federal aid highway projects.

In Boone County Case No. 56044 (hereinafter referred to as Riddick) relator owns two existing outdoor advertising structures located on property described as parcel No. 8 in the suit. The signs were built in 1962 pursuant to a lease with the owner. In 1973, in contemplation of selling right-of-way to the Commission, the owner of parcel No. 8 gave notice to relator terminating its lease. The Commission then purchased said right-of-way from the fee owner but no offer for the signs thereon was made to relator and Commission advised that it was not going to pay relator any compensation for the two signs. Thereafter Commission filed a petition in Riddick naming only relator as a defendant as to parcel 8.

In Callaway County Case No. 31903 (hereinafter referred to as Dodge) relator owned two sign structures on parcel No. 15, the fee interest in which belonged to one Sutterfield, and one sign on parcel No. 24 in which the fee interest was owned by Be-mac, Inc. All of these structures had been placed pursuant to leases with the owners. Prior to condemnation, the Commission made an offer to Sutterfield on parcel 15, which was refused. The Commission, after suit was filed, made an offer on parcel 24 to Bemac, Inc., which was accepted. Bemac terminated its lease with relator prior to acceptance of the offer. No offer has been made to relator with reference to its signs on either tract.

After the condemnation petitions were filed, relator filed answers and counterclaims in each of the cases wherein it asserted, inter alia, the failure of the Commission to make a bona fide offer as a prerequisite to condemnation under traditional eminent domain law and the failure of the Commission to comply with the provisions of 42 U.S.C. § 4651 and 42 U.S.C. § 4652 of the Uniform Relocation Assistance and Land Acquisition Policies Act of 1970 (hereinafter referred to as Uniform Act), seeking to stop or enjoin the Commission from disturbing its properties or proceeding with the condemnation cases. The Commission then filed motions to dismiss both counterclaims. Respondent overruled these motions and subsequently entered orders of condemnation. No ruling specifically dealing with the counterclaims was entered, but the parties appear to be in agreement that the trial court indicated that it believed the orders of condemnation had disposed of the counterclaims.

After unsuccessfully seeking prohibition in the Missouri Court of Appeals, Kansas City District, the petition herein was filed. We issued a stop order and subsequently our preliminary rule in prohibition.

Twenty-four persons, all of whom are defendant property owners in Riddick and Dodge, plus two defendant property owners in another Boone County case (No. 56853) (hereinafter referred to as Moreau), have been allowed to intervene. They, too, assert non-compliance by the Commission with §§ 4651 and 4652 of the Uniform Act in the Commission’s dealing with interve-nors and they request that the Commission be compelled to comply with those statutory provisions.

Bemac, Inc. also was permitted to intervene. It asserts that relator’s lease on its property was terminated, that it had agreed with the Commission to convey its interest in parcel 24 in Dodge for the amount of a stipulated Commissioner’s award but that it is being prevented from receiving the agreed upon settlement by reason of pend-ency of this prohibition proceeding.

It is well established in Missouri that allegation and proof that the condemnor and property owners have been unable to agree on compensation to be paid for the property being taken is jurisdictional. The rule is clearly enunciated in State ex rel. State Highway Commission v. Pinkley, 474 S.W.2d 46, 48-49 (Mo.App.1971), as follows:

“The power of eminent domain is an inherent attribute of sovereignty to be exercised by such agencies, for such public purposes and in such manner as may be provided by law. State ex rel Lane v. Pankey, 359 Mo. 118, 221 S.W.2d 195; State ex rel. State Highway Commission v. James, 356 Mo. 1161, 205 S.W.2d 534; State ex rel. State Highway Commission v. Gordon, 327 Mo. 160, 36 S.W.2d 105. Section 227.120, RSMo 1969, V.A.M.S., empowers the Commission to condemn land for the purposes stated therein, and paragraph (13) of the section provides that the procedure to be followed shall be in accordance with the provisions of Chapter 523 of our statutes. Section 523.010 of that chapter ‘ * * * authorizes the filing of condemnation proceedings only in such cases where the con-demnor “and the owners cannot agree upon the proper compensation to be paid.” * * * ’ State ex rel. State Highway Commission v. Jensen, Mo., 362 S.W.2d 568, 569. Accordingly, our appellate courts have long and uniformly held that the inability of the condemnor to reach an agreement with the owner on the price to be paid for the land is a jurisdictional fact which must be both pleaded in the condemnor’s petition, and proven. State ex rel. State Highway Commission v. Jensen, Mo., supra; Caruthersville School Dist. No. 18 of Pemiscot County v. Latshaw, 360 Mo. 1211, 233 S.W.2d 6; School Dist. of Clayton v. Kelsey, 355 Mo. 478, 196 S.W.2d 860. Thus since the case of Lind v. Clemens, 44 Mo. 540, decided in 1869, it has been a firmly settled principle of law that when the authority to condemn is conditioned upon the inability of the condemnor and the owner to agree upon the amount to be paid, and no effort of the condemnor to effect an agreement is shown, the condemnation proceedings cannot be maintained. Leslie v. City of St. Louis, 47 Mo. 474; City of St. Louis v. Glasgow, 254 Mo. 262, 162 S.W. 596; State ex rel. State Highway Commission v. Cady, Mo.App., 372 S.W.2d 639, cert. den. 385 U.S. 204, 87 S.Ct. 407, 17 L.Ed.2d 300. In Cady (l.c. 642) the court said:
‘ * * * Necessity is the underlying basis for the sovereign’s exercise of the power of eminent domain. No such necessity can exist until it be shown that the parties cannot agree in private negotiation. Our landowners should not be haled into court, nor should dockets be burdened with such litigation until it is made to appear affirmatively that negotiations have been attempted and have failed.’ ”

The petitions in condemnation in these cases allege that “relator cannot agree with the defendants, owners of, or claimants of interest in the property, on the proper compensation, if any, to be paid for the tracts of land or rights herein set out.” The sufficiency of such an allegation was sustained in the case of State ex rel. State Highway Commission v. Cady, 372 S.W.2d 639 (Mo.App.1963), but its adequacy is questionable. It merely asserts the conclusion that the Commission cannot agree with defendants on compensation. It does not allege that a settlement has been attempted or that offers have been made and rejected. One might believe at the outset that no agreement is possible and make no attempt to settle. The petition should allege enough to show that bona fide negotiations have occurred but that the parties were unable to arrive at a settlement. In this case, conced-edly, the Commission has made no offer of any kind to relator with respect to any of the signs on any of the tracts which the Commission seeks to condemn. As a matter of fact, no negotiations have taken place. Instead, the Commission takes the position as to parcel 8 in Riddick and parcel 24 in Dodge, that relator has no rights since its lease has been terminated. It has advised relator that it will pay nothing for the signs on the tracts in question. With reference to parcel 15 in Dodge, where relator’s lease is still outstanding, Commission says it need not make an offer to relator because Sut-terfield, the fee owner, refused an offer of settlement.

Has the Commission sufficiently complied with applicable requirements for negotiations to settle as to vest jurisdiction in respondent? This question necessarily involves a consideration not only of the provisions of § 523.010, discussed above in Pink-ley, but also, since both Riddick and Dodge involve federal aid projects, § 226.150, which provides in pertinent part as follows:

“The commission is hereby directed to comply with the provisions of any act of congress providing for the distribution and expenditure of funds of the United States appropriated by congress for highway construction, and to comply with any of the rules or conditions made by the bureau of public roads of the department of agriculture, or other branch of the United States government, acting under the provisions of federal law in order to secure to the state of Missouri funds allotted to this state by the United States government for highway construction. * * * tf

The foregoing statutory provision, then designated as § 8106 RSMo 1929, was construed by this court in Logan v. Matthews, 330 Mo. 1213, 52 S.W.2d 989 (banc 1932). In that case citizens and taxpayers sought to enjoin the Commission from constructing a highway so as to miss the towns of Avalon and Tina. A section of a highway construction statute provided that the highway to be constructed would run through those two towns, but the federal government, which was to provide federal aid for the project, refused to contribute that aid unless a more direct route between Chillicothe and Carrollton was followed. Utilization of such route would bypass Avalon and Tina.

In holding that the Commission should build the highway according to the federal government’s requirements, thereby obtaining federal aid for the project, this court said (52 S.W.2d at 992-93):

“ * * * Section 8106, supra, directs the commission to comply with any act of congress and with any rules or conditions made by the Bureau of Public Roads of the Department of Agriculture or other branch of the United States government in order to secure to the state of Missouri funds allotted to this state by the United States government for highway construction. It appears clear from the provisions of this statute that the purpose of the Legislature was to secure all of the funds allotted to the state by the federal government for road construction, and in order to accomplish that result it directed the state highway commission to comply with any of the rules or conditions made by the federal government.
“Plaintiffs contend that this statute, when read in connection with the Federal Highway Act, directs the state highway commission to comply with the rules and conditions made by the federal government as to the manner and method of construction of the highways, but does not authorize a change of the location of the highway so as to. deviate from the towns through which the statute says the road shall run.
“We do not agree with plaintiffs’ interpretation of this statute. The comprehensive language of the statute will not admit of the limited construction contended for. If the Secretary of Agriculture is authorized by the Federal Highway Act to require a change in the location of the road as a condition to granting federal aid, of which there is no doubt, and the state highway commission would refuse to comply with the requirements made, and thus lose federal aid on the road, then the intention of the Legislature would be defeated, because by section 8106 it specifically directs the highway commission to comply with any condition made by the federal government in order to secure federal aid. A reasonable construction of the Federal Highway Act justifies our conclusion.
* * * * * ⅝
“Section 8120, R.Mo.1929, which describes the general direction of the roads and designates the towns through which they shall run, and section 8106, which directs the commission to comply with any rule or condition made by the Bureau of Public Roads of the Department of Agriculture in order to secure federal aid, when read and construed together, as they should be, direct the commission to locate and construct the roads through the towns designated in section 8120, except on federal aid roads where the Bureau of Public Roads requires a change in location as a condition to allowing federal aid, in which event the commission shall comply with such requirement in order to secure federal aid.”

Logan was followed in Davis Construction Co., Inc. v. State Highway Commission, 141 S.W.2d 214 (Mo.App.1940), the court saying, at 221-22:

“ ‘By the terms of Section 8106, as set out above, and when applied to this particular case, it was the duty of the appellant, when federal funds were made available for use on the projects involved in this case within the limits of the City of Sedalia, to comply with all rules and conditions, that is to say, requirements made by the Bureau of Public Roads, to obtain the payment to the State of Missouri of the allotment made by the federal government. * * * ’ ”

See also Brown v. McMorran, 23 A.D.2d 661, 257 N.Y.S.2d 74 (1965); Eargle v. Richland County Permanent Roads Commission, 123 S.C. 368, 116 S.E. 445 (1923).

In view of the requirement of § 226.150, as construed in Logan and Davis Construction, that the Commission comply with the provisions of any act of congress or rules and conditions by the bureau of public roads (now the Federal Highway Administration of the Department of Transportation) as a condition to securing federal funds for highway construction, we must necessarily determine what those requirements are and whether they affect what we should do herein.

42 U.S.C. § 4651 provides in part as follows:

“In order to encourage and expedite the acquisition of real property by agreements with owners, to avoid litigation and relieve congestion in the courts, to assure consistent treatment for owners in the many Federal programs, and to promote public confidence in Federal land acquisition practices, heads of Federal agencies shall, to the greatest extent practicable, be guided by the following policies:
“(1) The head of a Federal agency shall make every reasonable effort to acquire expeditiously real property by negotiation.
“(2) Real property shall be appraised before the initiation of negotiations, and the owner or his designated representative shall be given an opportunity to accompany the appraiser during his inspection of the property.
“(3) Before the initiation of negotiations for real property, the head of the Federal agency concerned shall establish an amount which he believes to be just compensation therefor and shall make a prompt offer to acquire the property for the full amount so established. In no event shall such amount be less than the agency’s approved appraisal of the fair market value of such property. Any decrease or increase in the fair market value of real property prior to the date of valuation caused by the public improvement for which such property is acquired, or by the likelihood that the property would be acquired for such improvement, other than that due to physical deterioration within the reasonable control of the owner, will be disregarded in determining the compensation for the property. The head of the Federal agency concerned shall provide the owner of real property to be acquired with a written statement of, and summary of the basis for, the amount he established as just compensation. Where appropriate the just compensation for the real property acquired and for damages to remaining real property shall be separately stated.
“(4) No owner shall be required to surrender possession of real property before the head of the Federal agency concerned pays the agreed purchase price, or deposits with the court in accordance with section 258a of Title 40, for the benefit of the owner, an amount not less than the agency’s approved appraisal of the fair market value of such property, or the amount of the award of compensation in the condemnation proceeding for such property.
U * % *

42 U.S.C. § 4652 provides:

“(a) Notwithstanding any other provision of law, if the head of a Federal agency acquires any interest in real property in any State, he shall acquire at least an equal interest in all buildings, structures, or other improvements located upon the real property so acquired and which he requires to be removed from such real property or which he determines will be adversely affected by the use to which such real property will be put.
“(b)(1) For the purpose of determining the just compensation to be paid for any building, structure, or other improvement required to be acquired by subsection (a) of this section, such building, structure, or other improvement shall be deemed to be a part of the real property to be acquired notwithstanding the right or obligation of a tenant, as against the owner of any other interest in the real property, to remove such building, structure, or improvement at the expiration of his term, and the fair market value which such building, structure, or improvement contributes to the fair market value of the real property to be acquired, or the fair market value of such building, structure, or improvement for removal from the real property, whichever is the greater, shall be paid to the tenant therefor.
“(2) Payment under this subsection shall not result in duplication of any payments otherwise authorized by law. No such payment shall be made unless the owner of the land involved disclaims all interest in the improvements of the tenant. In consideration for any such payment, the tenant shall assign, transfer, and release to the United States all his right, title, and interest in and to such improvements. Nothing in this subsection shall be construed to deprive the tenant of any rights to reject payment under this subsection and to obtain payment for such property interests in accordance with applicable law, other than this subsection.”

42 U.S.C. § 4655 provides in part as follows:

“Notwithstanding any other law, the head of a Federal agency shall not approve any program or project or any grant to, or contract or agreement with, a State agency under which Federal financial assistance will be available to pay all or part of the cost of any program or project which will result in the acquisition of real property on and after January 2,1971, unless he receives satisfactory assurances from such State agency that—
“(1) in acquiring real property it will be guided, to the greatest dxtent practicable under State law, by the land acquisition policies in section 4651 of this title and the provisions of section 4652 of this title . . .

The stipulation between the parties filed herein discloses that there was an exchange of correspondence between representatives of the Federal Highway Administration and the Director of Highways for the Commission wherein the latter wrote to the Federal Highway Administration as follows:

“Section 305. The State Highway Commission, in acquiring real property, will be guided to the greatest extent practicable under state law, by the land acquisition policies in Sections 301 and 302 as specifically set out hereinabove and as permitted by proceedings herein-above referred to, the ‘35 points,’ as they may exist and as they may be amended from time to time by agreement with the Federal Highway Administrator. Property owners will be reimbursed as specified in Section 303 and to the extent hereinabove set forth under Section 304.”

Thereafter, the Director of Highways again wrote to the Federal Highway Administration as follows:

“The first above-mentioned letter assured you that in the acquisition of real property, the State Highway Commission will be guided to the greatest extent practicable under state law by the land acquisition policies in Sections 301 and 302 of Public Law 91-646. There is no inability to comply with these sections and none has been suggested.
“You are further assured, as we believe to be fully stated in the letter of January 14,1972, that as of July 1,1972, the State Highway Commission will comply with Section 305 of said Public Law 91-646.”

In response, the Federal Highway Administration, in a letter to the Director of Highways dated May 22, 1972, wrote as follows:

“Your submission of Missouri - Uniform Assistance and Real Property Acquisition Policy Act of 1970, Section 305 Assurances, dated March 14, 1972, has been reviewed by the Office of Chief Counsel and is approved.”

In spite of the requirements imposed on it by § 226.150 and notwithstanding the positive assurances given by the Director of Highways to the Federal Highway Administration in order to secure federal aid on Missouri highway projects, it is conceded that the Commission has not acted in these cases in accordance with the procedures spelled out in §§ 4651, 4652 and 4655. This has been true with reference to the respondent’s structures in Riddick and Dodge and with reference to tracts belonging to the intervening property owners. The Commission’s explanation is that 42 U.S.C. § 4602, another section in the Uniform Act, specifically states, inter alia, that nothing in this chapter shall be construed as creating any element of value or damage in condemnation proceedings. Respondent urges that compliance with § 4651 is not a prerequisite to the right to condemn and that it merely specifies guidelines for administrative action, not judicial enforcement. The Federal Highway Administration, says respondent, could cut off federal aid for non-compliance therewith, but property owners have no enforceable rights. Various federal decisions are cited in support of this position.

The federal cases cited are not decisive of the issue we must resolve. They deal with situations wherein they look only to the federal statutes (the various sections of the Uniform Act) and determine therefrom whether those statutes create rights and obligations which the federal courts may enforce. That is not the question we must resolve. Instead, we must determine whether under § 226.150 the Commission must follow procedures even if it otherwise might not have been so obligated. More specifically, we must decide whether the General Assembly by enacting § 226.150 has directed the Commission to follow and comply with the requirements as to appraisal, negotiation and settlement offers spelled out in §§ 4651 and 4652 in those instances where federal highway aid is involved.

We conclude that it has. Section 226.150 very specifically states that the Commission shall comply with acts of congress or rules or conditions of agencies such as the Federal Highway Administration which are conditions for securing funds allocated to Missouri for highway construction. This it had a right to do and Logan and Davis Construction so recognized. This necessarily means that the bona fide effort to settle and avoid condemnation, required by virtue of § 523.010, now includes, where federal aid is involved, the obligation to do those things specified in §§ 4651, 4652 and 4655 in connection with efforts to settle and avoid litigation. These include (1) appraisal of the property before negotiation, with an opportunity for the owner to accompany the appraiser, (2) determination of the sum by which buildings, structures or other improvements which belong to tenants contribute to the fair market value of the real property to be acquired and, in the alternative, the fair market value of the structure for removal, (3) establishment of just compensation for the property to be acquired, which shall be no less than the approved appraisal, (4) furnishing the owner with a written statement of, and summary of the basis for, the amount established as just compensation, and (5) making an offer of the just compensation so established to the owner. In the case of structures owned by tenants, such as those here involved, payment of the settlement is to be made to the tenant if the owner of the fee disclaims all interest in the improvements.

Since the Commission has not made the appraisals or offers or done the other things hereinbefore enumerated which are conditions precedent under §§ 523.010 and 226.150 to jurisdiction in. respondent to proceed with the Riddick and Dodge condemnation suits, respondent lacks jurisdiction to appoint commissioners or to proceed further therein until the Commission complies therewith and amends the petitions in condemnation to so allege. In such a situation prohibition is an appropriate remedy. State ex rel. Gove v. Tate, 442 S.W.2d 541 (Mo. banc 1969). See also State ex rel. Clothier v. Yeaman, 465 S.W.2d 632, 634 (Mo. banc 1971).

In Moreau (in which two intervenors are involved), it is not clear from the record before us whether a federal aid highway project is involved. Intervenors allege that it is and that there was evidence in the record before respondent to so show, but they also allege that the Commission has refused to advise whether this case does or does not involve a federal aid project. It would serve no useful purpose for us to delay this proceeding until that question can be resolved. If, in fact, it is a federal aid project, what we have said herein should indicate the course to be followed.

Provisional rule in prohibition made absolute.

SEILER, C. J., and MORGAN and BARDGETT, JJ., concur.

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

HOLMAN and DONNELLY, JJ., dissent and concur in separate dissenting opinion of HENLEY, J.

HENLEY, Judge

(dissenting).

I am unable to agree with the holding of the majority opinion that because the con-demnor has not complied with federal statutes the state court is without jurisdiction to act in these condemnation actions.

It is one thing to say that in order to secure federal-aid funds for Missouri highways the Commission shall comply with a federal law which provides for the distribution of those funds; it is quite another, in my opinion, to say that a court of this state does not have “jurisdiction” to act in a condemnation action, such as is involved here, unless the condemnor has first complied with requirements of a federal law.

That part of § 226.150 (the first sentence) quoted in the majority opinion first appeared in the laws of this state as a part of the Centennial Road Law adopted in 1921 and it was carried forward in exactly the same language in each revision of our statutes thereafter, including the most recent revision in 1969. It was a part of the great effort being made then to “get Missouri out of the mud,” when a high percentage of the right-of-way acquired for highways was by way of gifts from those whose land adjoined the first hard-surfaced roads. It is difficult today to imagine that members of the 1917,1919 or 1921 sessions of the General Assembly intended, or even dreamed, that § 226.150 would or could in a future day be used in connection with a later act of congress to effect a change in the law of eminent domain of this state. I say that with confidence partly because this legislation was enacted back in the day when men in the state legislature, and those in the congress, were apparently of the opinion it was desirable, if not in fact required, that the states give their assent to federal aid for road construction.

If it is the intent of the General Assembly that the Commission shall have authority to institute and maintain a condemnation action only if it has first complied with these additional appraisal, negotiation and settlement offer provisions of 42 U.S.C., §§ 4651 and 4652, it should say so now. It certainly does not purport to say so in § 226.150.

If these conditions are to be a determining factor in whether a state court has jurisdiction, it would be far better that the General Assembly say so than that the court, by way of “construction” of this fifty-year-old statute, say so by changing the law of eminent domain to require that the condemnor shall have complied with these particular federal requirements as well as those of Missouri.

I respectfully dissent.

      . All references to Missouri statutes are to RSMo 1969, V.A.M.S. unless otherwise indicated.

      . Sections 301, 302 and 305 of the Uniform Act, referred to in this correspondence, are now designated as §§ 4651, 4652 and 4655 of Title 42 U.S.C.

      . A subsequent notice to all states from the Federal Highway Administration dated June 1, 1973, noted that complaints had been received in connection with the handling of compensation for advertising signs located within highway right-of-way projects and called attention to the requirements of §§ 4652(a) and (b)(1) and discussed how they should be implemented.

      .“(a) The provisions of section 4651 of this title create no rights or liabilities and shall not affect the validity of any property acquisitions by purchase or condemnation.
      “(b) Nothing in this chapter shall be construed as creating in any condemnation proceedings brought under the power of eminent domain, any element of value or of damage not in existence immediately prior to January 2, 1971.”

      . For example, in Will-Tex Plastics Mfg., Inc. v. H. U. D., 346 F.Supp. 654 (E.D.Pa.1972), aff'd, 478 F.2d 1399 (3d Cir. 1973), the court, after holding plaintiff had no rights because the property was acquired prior to the effective date of the Uniform Act, also held that plaintiff had no right to relief thereunder in the federal court because of the express provisions of § 4602(a). Other cases relied on include Barnhart v. Brinegar, 362 F.Supp. 464 (W.D.Mo.1973), and Paramount Farms, Inc. v. Morton, 384 F.Supp. 1294 (W.D.Wisc.1974). But see Bethune v. H. U. D„ 376 F.Supp. 1074 (W.D.Mo.1972), and Whitman v. State Highway Comm’n, No. 1793 (W.D.Mo., filed May 6, 1975).

      . Respondent insists the Commission had no duty to appraise the structures belonging to relator and no duty to make an offer therefor, citing particularly Western Robidoux P. & L. Co. v. Missouri State Highway Comm’n, 498 S.W.2d 745 (Mo.1973), and City of St. Louis v. Wabash R. R., 421 S.W.2d 302 (Mo. banc 1967). Neither of these cases involved federal highway aid " funds or a determination of the effect of § 226.150 and neither governs the rights of the parties in these cases.

      .Bemac has disclaimed interest in relator’s structures on parcel 24 in Dodge. This also appears to be true in the case of parcel 8 in Riddick, although the record contains no express disclaimer. The record discloses nothing in this respect as to parcel 15 in Dodge.

      . Section 16, Laws of Missouri, 1921, (first extra session) pp. 132 and 138, which had its beginning in the Hawes Road Law, Laws of Missouri, 1917, p. 485.

      . Section 1, Laws of Missouri, 1917 (part of the Hawes Road Law), reads: “That assent is hereby given to an act of the congress of the United States, entitled: ‘An act to provide that the United States shall aid the states in the construction of rural post roads and for other purposes,’ approved July 11, 1916.” (emphasis supplied). See also: § 10889, RSMo 1919.


author:
DONNELLY, Judge.
      HENLEY, Judge SEILER, Chief Justice HOLMAN, Judge

text:
    Gene McNARY, Prosecuting Attorney of St. Louis County, Missouri, Respondent, v. Bruce CARLTON and B. Dalton Company, Appellants.
    No. 58371.
    Supreme Court of Missouri, En Banc.
    Sept. 8, 1975.

      John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Irl B. Baris, Newmark & Baris, St. Louis, for appellants.
   DONNELLY, Judge.

On February 27, 1973, the Circuit Court of St. Louis County entered its decree, under § 563.285, RSMo 1969, declaring the book “The Happy Hooker” obscene and enjoining appellants from selling or distributing it in the State of Missouri.

Section 563.285, supra, reads in part as follows:

“The circuit courts have jurisdiction to enjoin the publication, sale or distribution of obscene prints, articles and matter, as hereinafter specified: The prosecuting or circuit attorney of any county, the chief executive officer of any city, town or village or the city attorney of any city, town, or village, in which a person, firm or corporation publishes, sells or distributes or is about to sell or distribute or has in his possession with intent to sell or distribute or is about to acquire possession with intent to sell or distribute any articles or matter named in section 563.-280, or any amendment thereto, may maintain an action for an injunction against such person, firm or corporation in the circuit court of that county to prevent the sale or further sale or the distribution or further distribution or the acquisition, publication or possession within the state of such article or matter.”

Section 563.280, RSMo 1969, reads as follows:

“Every person who knowingly shall manufacture, print, publish, buy, sell, offer for sale or advertise for sale, or have in his possession, with intent to sell or circulate, or who knowingly shall give away, distribute or circulate any obscene, lewd, licentious, indecent or lascivious book, pamphlet, paper, ballad, drawing lithograph, engraving, picture, photograph, model, cast, print, article or other publication of indecent, immoral or scandalous character, or shall write, print or publish, sell or circulate, any letter, handbill, card, circular, book, pamphlet, advertisement or notice of any kind giving information, directly or indirectly, when, where, how, of whom or by what means any of the things herein mentioned can be had or obtained, and whoever shall print or publish in any newspaper any vulgar, scandalous, obscene or immoral pleadings or evidence in any case or proceeding before any court or tribunal whatever, shall, on conviction thereof, be fined not more than one thousand dollars nor less than fifty dollars, or be imprisoned not more than one year in the county jail, or both; but nothing in this section shall be construed so as to affect teaching in regular medical colleges, or public standard medical books, or reports of medical societies, or the practice of regular practitioners of medicine, or druggists in their legitimate business.”

On June 21, 1973, in Miller v. California, 413 U.S. 15, 23-25, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419, the United States Supreme Court reformulated the constitutional test for determining obscenity, and said:

“This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972); United States v. Reidel, 402 U.S. [351], at 354, 91 S.Ct. [1410], at 1411-1412 [28 L.Ed.2d 813]; Roth v. United States, supra, 354 U.S. [476], at 485, 77 S.Ct. [1304], at 1309 [1 L.Ed.2d 1498]. ‘The First and Fourteenth Amendments have never been treated as absolutes [footnote omitted].’ Breard v. Alexandria, 341 U.S. [622], at 642, 71 S.Ct. [920], at 932 [95 L.Ed. 1233], and cases cited. See Times Film Corp. v. Chicago, 365 U.S. 43, 47-50, 81 S.Ct. 391, 393-395, 5 L.Ed.2d 403 (1961); Joseph Burstyn, Inc. v. Wilson, 343 U.S. [495], at 502, 72 S.Ct. [777], at 780 [96 L.Ed. 1098]. We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, 390 U.S. [676], at 682-685, 88 S.Ct. [1298], at 1302-1305 [20 L.Ed.2d 225]. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.
“The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, 408 U.S., at 230, 92 S.Ct., at 2246, quoting Roth v. United States, supra, 354 U.S., at 489, 77 S.Ct., at 1311; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the ‘utterly without redeeming social value’ test of Memoirs v. Massachusetts, 383 U.S. [413], at 419, 86 S.Ct. [975], at 977 [16 L.Ed.2d 1]; that concept has never commanded the adherence of more than three Justices at one time. See supra, [41S U.S. at 21] at 2613. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, 408 U.S., at 232, 92 S.Ct., at 2247; Memoirs v. Massachusetts, supra, 383 U.S., at 459-460, 86 S.Ct., at 998 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U.S. [184], at 204, 84 S.Ct. [1676], at 1686 [12 L.Ed.2d 793] (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U.S. 254, 284-285, 84 S.Ct. 710, 728, 11 L.Ed.2d 686 (1964); Roth v. United States, supra, 354 U.S., at 497-498, 77 S.Ct., at 1315-1316 (Harlan, J., concurring and dissenting).
“We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:
“(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
“(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.
“Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places. At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. See Kois v. Wisconsin, supra, 408 U.S., at 230-232, 92 S.Ct., at 2246-2247; Roth v. United States, supra, 354 U.S., at 487, 77 S.Ct., at 1310; Thornhill v. Alabama, 310 U.S. 88, 101-102, 60 S.Ct. 736, 743-744, 84 L.Ed. 1093 (1940). For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members.”

On June 24, 1974, the United States Supreme Court handed down decisions in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, and Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642. In Hamling and Jenkins, the Court explained and elaborated upon the Miller holding. We must, of course, recognize the impact of these decisions and, where appropriate, establish procedures in Missouri which will represent meaningful compliance with their dictates.

First, appellants in this case are entitled to any benefits afforded by the constitutional principles enunciated in Miller.

Second, we may hold that § 563.280, the primary statute proscribing the dissemination of obscene material in Missouri, is not unconstitutionally vague only if we are prepared to construe the words “obscene,” “lewd,” “licentious,” “indecent,” “lascivious,” “vulgar,” “scandalous,” and “immoral” (all of which appear in § 563.280) “as limiting regulated material to patently offensive representations or descriptions of that specific ‘hard core’ sexual conduct given as examples in Miller v. California, supra, 413 U.S., at 25, 93 S.Ct. [2607], at 2615 * * *.” United States v. 12 200-Foot Reels of Film, 413 U.S. 123, 130, 93 S.Ct. 2665, 2670, 37 L.Ed.2d 500. Accordingly, we now so construe § 563.280, and hold that the terms, supra, which appear therein, limit regulated material to “representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,” and “representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” We assume our General Assembly could amend § 563.280 and define for regulation specific “hard core” conduct other than the examples given in Miller. However, until such action is taken, finders of fact at trial, and appellate courts on review, must be limited to the Miller examples in determining the question of patent offensiveness.

Third, in considering application of the “contemporary community standards” guideline, we must note the following language from Hamling v. United States, 418 U.S. 87, at 104 and 105, 94 S.Ct. 2887, 2900, 41 L.Ed.2d 590:

“Paradoxically, however, petitioners also contend that in order to avoid serious constitutional questions the standards in federal obscenity prosecutions must be national ones, relying on Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488, 82 S.Ct. 1432, 1437, 8 L.Ed.2d 639 (1962) (opinion of Harlan, J.), and United States v. Palladino, 490 F.2d 499 (CA1 1974). Petitioners assert that our decisions in the two federal obscenity cases decided with Miller indicate that this Court has not definitively decided whether the Constitution requires the use of nationwide standards in federal obscenity prosecutions.
“We think that both of these contentions evidence a misunderstanding of our Miller holdings. Miller rejected the view that the First and Fourteenth Amendments require that the proscription of obscenity be based on uniform nationwide standards of what is obscene, describing such standards as ‘hypothetical and unas-certainable,’ 413 U.S., at 31, 93 S.Ct., at 2619. But in so doing the Court did not require as a constitutional matter the substitution of some smaller geographical area into the same sort of formula; the test was stated in terms of the understanding of ‘the average person, applying contemporary community standards.’ 413 U.S., at 24, 93 S.Ct., at 2615. When this approach is coupled with the reaffirmation in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56, 93 S.Ct. 2628, 2634, 37 L.Ed.2d 446 (1973) of the rule that the prosecution need not as a matter of constitutional law produce ‘expert’ witnesses to testify as to the obscenity of the materials, the import of the quoted language from Miller becomes clear. A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a ‘reasonable’ person in other areas of the law. Stone v. New York, Chicago & St. Louis R. Co., 344 U.S. 407, 409, 73 S.Ct. 358, 359, 97 L.Ed. 441 (1953); Schulz v. Pennsylvania R. Co., 350 U.S. 523, 525-526, 76 S.Ct. 608, 609-610, 100 L.Ed. 668 (1956). Our holding in Miller that California could constitutionally proscribe obscenity in terms of a ‘statewide’ standard did not mean that any such precise geographic area is required as a matter of constitutional law.
* * * * * *
“The result of the Miller cases, therefore, as a matter of constitutional law and federal statutory construction, is to permit a juror sitting in obscenity cases to draw on knowledge of the community or vicinage from which he comes in deciding what conclusion ‘the average person, applying contemporary community standards’ would reach in a given case.”

Of course, Hamling involved a federal prosecution. However, we consider the above language extremely significant here. The emphasis which Miller and Hamling place on the unique qualifications of jurors to apply the “contemporary community standards” guideline, raises a practical question in this suit for injunctive relief under § 563.285. Jurors are not ordinarily involved in injunction proceedings. On the other hand, trial judges do not ordinarily act as fact-finders as to the propensities of a “reasonable” person in tort law. In “obscenity” cases, we believe we should “rely on the jury system” (413 U.S., at 26, 93 S.Ct. 2607), and require that jurors be involved as triers of fact under the Miller guidelines. The imposition of such requirement by this Court means that it will be “constitutionally permissible to permit juries to rely on the understanding of the community from which they came as to contemporary community standards * *.” 418 U.S., at 157, 94 S.Ct., at 2753. In our opinion, the diverse attitudes and desires of different communities in Missouri demand such a result. We doubt that residents in St. Louis County would view a question of obscenity in the same light as residents of Dade County. We consider it important, in determining issues of obscenity, that neither be bound by the other. The residents of each should be accorded the privilege, by utilization of the jury system and within the Miller guidelines, of determining for themselves what material would be considered obscene by the average person in their communities.

Fourth, in Jenkins the Court reaffirmed that application of the Miller guidelines involves “essentially questions of fact,” properly determined by juries, but then said (418 U.S., at 160, 94 S.Ct., at 2755):

“But all of this does not lead us to agree with the Supreme Court of Georgia’s apparent conclusion that the jury’s verdict against appellant virtually precluded all further appellate review of appellant’s assertion that his exhibition of the film was protected by the First and Fourteenth Amendments. Even though questions of appeal to the ‘prurient interest’ or of patent offensiveness are ‘essentially questions of fact,’ it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is ‘patently offensive.’ Not only did we there say that ‘the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary,’ 413 U.S., at 25, 93 S.Ct, at 2615, but we made it plain that under that holding ‘no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive “hard core” sexual conduct . . . .’ 413 U.S. at 27, 93 S.Ct., at 2616.”

In our opinion, the requirements of Miller and Jenkins may be met, in a suit brought under § 563.285, by proceeding as follows:

(1) The trial court should direct the obscenity issue or issues to be made (Rule 71.03) and should order them tried with an advisory jury (Rule 73.01). After taking evidence, the trial court should instruct the advisory jury under the Miller requirements and should accept a special verdict on the question of obscenity if three-fourths of the members of the advisory jury concur in the verdict. (Mo.Const. Art. I, § 22(a)).

(2) If the verdict of the advisory jury is that the materials are not obscene, the trial court should be concluded by the verdict of the jury and should deny injunctive relief. If the verdict of the advisory jury is that the materials are obscene, the trial court must independently determine the constitutional question of whether the “materials depict or describe patently offensive ‘hard core’ sexual conduct * * 413 U.S., at 27, 93 S.Ct., at 2616.

(3) On appeal, the appellate court must also “conduct an independent review of constitutional claims when necessary.” 413 U.S., at 25, 93 S.Ct., at 2615.

We have read “The Happy Hooker,” and conclude that the book could, as a matter of constitutional law, be found to: (1) appeal to the prurient interest in sex, (2) portray sexual conduct in a patently offensive way, and (3) be without serious literary, artistic, political or scientific value. However, we reverse and remand the case so that a jury determination of the issue of obscenity may be obtained.

MORGAN, J., concurs.

HENLEY, J., concurs in separate concurring opinion filed.

FINCH, J., concurs and concurs in separate concurring opinion of HENLEY, J.

SEILER, C. J., dissents and concurs in result in separate opinion filed.

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

BARDGETT, J., dissents.

HENLEY, Judge

(concurring).

I recognize the validity of the points made in the dissenting opinion of Holman, J., but believe that the principal opinion follows, as it should, the suggestions made and the direction set in this troubled area by the Supreme Court of the United States in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590; and Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642. Hence, I concur.

SEILER, Chief Justice

(dissenting and concurring in result).

I respectfully dissent. I would reverse outright. As I attempted to point out in my dissent in Kansas City v. O’Connor, 510 S.W.2d 689, 698 (Mo. banc 1974), we have a strong freedom of speech clause in our Missouri Constitution, Art. I, Sec. 8. It provides: “That no law shall be passed impairing the freedom of speech, no matter by what means communicated; that every person shall be free to say, write or publish, or otherwise communicate whatever he will on' any subject, being responsible for all abuses of that liberty . . .”

As I said in the O’Connor case, supra, “The spirit of this clause of our constitution is that all speech is protected until the freedom is abused — that is, unless the speech infringes on the rights of others.” I fail to see where this book in any way infringes on the rights of others. Merely because the United States Supreme Court might find “The Happy Hooker” to be obscene does not mean that we have to follow suit. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). The freedom of speech clause in the Missouri constitution (which we, of course are sworn to uphold) straightforwardly tells us that we must protect the freedom of speech, the right of every person to write whatever he will on any subject. We should do so in this case and dissolve this injunction.

In the period of time I have been on the court, I do not recall any case where we have failed to hold that the material before us was obscene. We usually do this by using tests formulated by the United States Supreme Court as to what can constitutionally be forbidden under the First Amendment. We approach it as though the limits beyond which we cannot go are the limits to which we must go.

In my opinion this is not a workable approach and we do not need to inflict it upon ourselves. Our own opinions describe the course chartered by the United States Supreme Court in what Judge Henley refers to as “this troubled area” as having “created uncertainty”, S. S. & W., Inc. v. Kansas City, 515 S.W.2d 487, 490 (Mo.1974). In my judgment, the only workable solution is to abide by the provisions of our own constitution that “every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject”, leaving it to the good sense of the Missouri public whether or not to read or purchase a particular book, so long as the author or publisher does not abuse the liberty guaranteed by our constitution by attempting to impose “The Happy Hooker”, for example, on those who do not want it, or advertising it in an offensive way or offering it to children (there is no evidence of any such abuse in this case).

If we have accomplished anything constructive by the rigid way we have dealt with obscenity cases I fail to see it. Certainly we have not lessened publication and sale of the class of books of which “The Happy Hooker” is an example. If anyone doubts this, let him go to any news or bookstand in any town of size in Missouri and see for himself. And, in fact, the book before us, “The Happy Hooker” has now been made into a motion picture.

But to return to the federal criteria referred to in the principal opinion, the book under consideration is more than a series of stark sexual encounters. As stated in one of the book reviews in evidence in the trial:

“After sorting through the beds, hotels, and naked bodies, one realizes that the book is nothing more than an appeal to legalize prostitution”. This is a critical fact. The book, taken as a whole, does have some “serious literary, artistic, political or scientific value”. This brings it under the protection of the First Amendment, according to Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). “The Happy Hooker” provides a source of information about an underside of our society and it seriously makes an argument for the legalization of prostitution and abolition of victimless crimes. Social studies can make use of this kind of an account. The book, as a whole, does provide some insight into who becomes a prostitute, why, who utilizes the services of prostitutes and how the system works. Regardless of one’s views as to legalization of prostitution it must be recognized as a live question. The Section on Individual Rights and Responsibilities of the American Bar Association has adopted a resolution urging repeal of prostitution laws. Constitutional freedom of speech provisions protect contributions to legitimate discussions of the reshaping of our society. They operate to protect this book from a decree ordering it destroyed.

Finally, while I believe this case should be reversed outright, it can at least be said for the method used here — injunctive relief under Sec. 563.285 RSMo 1969 — that it operates prospectively and does not subject an individual to criminal penalties for conduct relating to material which he has no way of knowing will be considered obscene until after the members of this court have decided how it strikes them individually. If the case is not to be reversed outright, then I would concur in the result reached in the principal opinion of reversing and remanding for a new trial.

HOLMAN, Judge

(dissenting).

I respectfully dissent.

The calling of an advisory jury in an equity case is a matter within the trial court’s discretion. McCullough v. McCullough, 31 Mo. 226 (1860). And when such a jury is used, its verdict is not binding on the court. We have stated that “Equity cases are rarely tried to a jury. And in those rare instances where an issue is submitted to a jury the verdict is advisory only. The court may accept or reject the verdict and, if accepted, it is the court’s own finding on the fact issue rather than that of the jury.” Edwards v. Maples, 388 S.W.2d 850, 852 (Mo.1965). Contrary to the foregoing, the principal opinion holds that an advisory jury must be called by the trial court in this type of case and if the verdict is that the materials are not obscene the trial court is bound thereby. I do not believe that such procedure is either permissible or sound under settled equitable principles.

In accord with the well established decisions Rule 84.13(b) provides that: “No appellate court shall reverse any judgment, unless it finds that error was committed by the trial court against the appellant, materially affecting the merits of the action.” It is conceded by the principal opinion that the trial court did not err in failing to call an advisory jury in the trial of this case. We are therefore precluded by the quoted rule from reversing this judgment upon the ground that no jury was called.

I would affirm the judgment in this case.


author: SEILER, Chief Justice. BARDGETT, Judge

text:
    James D. THEODORO, Respondent, v. DEPARTMENT OF LIQUOR CONTROL, State of Missouri, Appellant.
    No. 58980.
    Supreme Court of Missouri, En Banc.
    Sept. 8, 1975.

      G. William Weier, Dearing, Richeson, Roberts & Wegmann, Hillsboro, for respondent.
    John C. Danforth, Atty. Gen., Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, for appellant.
   SEILER, Chief Justice.

This appeal presents issues concerning the governor’s power to pardon respondent from the administrative revocation of his license to sell package liquor. This court has jurisdiction by virtue of Art. V, Sec. 3, Mo.Const.1945, in that the case involves the construction of Art. IV, Sec. 7 of the constitution of this state.

In 1967, the Supervisor of Liquor Control revoked respondent’s liquor license based on findings that respondent had sold intoxicating beverages on Sunday and had permitted the sale of intoxicating beverages by a minor. That decision was affirmed in circuit court. Thereafter, in 1972, then Governor Warren E. Hearnes issued on a standard pardon form, a document purporting to “pardon, release, and discharge” respondent from the revocation. Respondent was subsequently issued a new license for the sale of liquor, but upon application for renewal of license, the supervisor advised respondent that the license would not be renewed, the basis for his decision being Sec. 311.-06(1), RSMo 1969, which provides inter alia that “. . .no person shall be granted a license or permit hereunder whose license as such dealer has been revoked . . . ” The circuit court reversed the decision of the supervisor, who now appeals. We reverse the circuit court and affirm the supervisor’s denial of renewal of license.

The pardon power of the governor derives from Art. IV, Sec. 7, Mo.Const.1945, which reads:

“The governor shall have power to grant reprieves, commutations and pardons, after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to provisions of law as to the manner of applying for pardons. . . ”

The question thus presented is whether or not the governor is constitutionally empowered to “pardon” the administrative revocation of respondent’s liquor license. It is readily apparent that the language of the above provision, “after conviction, for all offenses ”, speaks directly to criminal prosecutions, and in construing the constitution, words are to be taken in accord with their fair intendment and their natural and ordi-" nary meaning. State ex rel. Danforth v. Cason, 507 S.W.2d 405 (Mo. Banc 1973).

That differences exist between the criminal process and the administrative process is well settled. It has been held, for example, that the revocation of a liquor license is not a criminal prosecution but is in the nature of a civil proceeding, Crooms v. Ketchum, 379 S.W.2d 580 (Mo.1964), and as such, many rights ordinarily secured to criminal defendants are not available to licensees involved in revocation proceedings, State ex rel. Sansone v. Quinn, 426 S.W.2d 917 (Mo.App.1968). Additionally, the decisions of the Supervisor of Liquor Control will be upheld if supported by competent and substantial evidence, State ex rel. Favazza v. Ketchum, 367 S.W.2d 542 (Mo.1963), and such decisions do not require proof beyond a reasonable doubt, see 2 Am. Jur.2d Administrative Law, Sec. 392.

We have found only one case, Ex parte Collins, 94 Mo. 22, 6 S.W. 345, 346 (1887) which defines “after conviction” in the context of Art. IV, Sec. 7, although the definition was not necessary to the decision in that case. It was there stated that “ ‘after conviction ’ . . . means after a return of a verdict of guilty.” The Supervisor of Liquor Control is not authorized to find any person “guilty” of a violation of the liquor control laws, and in fact, may revoke a license even though the licensee has been acquitted of a criminal charge for the same violation as is made the basis for the revocation, Crooms v. Ketchum, supra, 379 S.W.2d 587.

The power to pardon has been traditionally described in the courts of this state as a power to exempt individuals from punishment which the law inflicts for crimes committed. State ex rel. Oliver v. Hunt, 247 S.W.2d 969 (Mo. banc 1952); State v. Jacobson, 348 Mo. 258, 152 S.W.2d 1061 (1941); Lime v. Blagg, 345 Mo. 1, 131 S.W.2d 583 (banc 1939). No other instances have been cited where the governor has attempted to pardon the revocation of a license, and no other constitutional provision or statute has been found which either expressly or impliedly authorizes him to do so. We note, however, that in another context, the pardon power has been strictly construed, being held to apply only to offenses against the state and not to violations of municipal ordinances. State ex rel. City of Kansas City v. Renick, 157 Mo. 292, 57 S.W. 713 (banc 1900). We find no indication in the proceedings of the constitutional convention of 1945 (Vol. 7, p. 3983) that the framers of the constitution contemplated or intended that the pardon power of the governor be extended to reach the facts of this case.

In light of the foregoing, and giving the language of the constitution its plain and ordinary meaning, we are unwilling to hold that Art. IV, Sec. 7 empowers the governor to pardon persons whose licenses have been revoked by the Supervisor of Liquor Control. To do so would pave the way for a great expansion of this power into the myriad of administrative decisions which affect thousands of persons throughout the state. Might the governor then be able, for example, to “pardon” a person from the denial of his application for welfare? A constitutional provision should never be construed to work confusion and mischief unless no other reasonable construction is possible. State ex rel. Moore v. Toberman, 363 Mo. 245, 250 S.W.2d 701 (banc 1952).

This decision does not reach instances where a licensee has been found guilty and convicted of crimes which have been pardoned by the governor, but such convictions are nonetheless made the basis for revoking or refusing to renew his license. See and compare Hughes v. State Board of Health, 348 Mo. 1236, 159 S.W.2d 277 (1942) with Damiano v. Burge, 481 S.W.2d 562 (Mo.App.1972) and Guastello v. Garrett, (Ct. App. # KCD 26948, decided June 2, 1975). See also the cases collected at 58 A.L.R.3d 1191. Inasmuch as the present case does not involve a criminal conviction but only an administrative revocation, this problem need not be further pursued here.

Respondent argues in the alternative that should the governor’s pardon not be effective as such, then the document should be treated as an “order” by the governor directing the supervisor to set aside the revocation. This argument is based on Sec. 311.610, RSMo 1969, which states that the Supervisor of Liquor Control “shall serve at the pleasure and under the supervision and direction of the governor.” We find this argument untenable. In the first place, the document signed by the governor was a standard pardon, and was not addressed to a specific person, nor did it direct that any particular action be taken. Secondly, the duties and powers of the Supervisor of Liquor Control are carefully delineated in chapters 311 and 312, RSMo 1969; these powers and duties are directed specifically and solely to the supervisor and not to the governor. It is unlikely that the legislature would erect such elaborate standards and guidelines for the regulation of intoxicating beverages in this state, all of which would then be subject to nullification by the governor.

Because the governor’s pardon was not effective to remove the revocation of respondent’s original license, the decision of the supervisor not to renew the license which was granted on the basis of that pardon was in accordance with Sec. 311.-060(1), RSMo 1969, was correct and should have been affirmed. The decision of the circuit court is therefore reversed and the cause remanded with directions to affirm the order of the supervisor revoking respondent’s license.

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

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

BARDGETT, Judge

(dissenting).

I respectfully dissent. The respondent’s liquor license was originally revoked upon a finding by the supervisor of liquor control that he committed the acts of selling liquor on Sunday and permitting a minor to sell intoxicating liquor. These are violations of law and could be the subject of a criminal prosecution. Had respondent been convicted by a court the governor would have the power to pardon those convictions. In my opinion, that pardon would remove those convictions from automatically disqualifying the person from holding a liquor license.

Damiano v. Burge, 481 S.W.2d 562 (Mo.App.1972), is a case where the President of the United States pardoned plaintiff from the conviction of an offense against the federal tax laws involving the sale and manufacture of intoxicating liquor. Subsequently he obtained a Missouri liquor employee’s permit. In 1969 the director of liquor control of Kansas City, Missouri, refused to issue or renew the permit on the ground that Damiano had been convicted of the violation of a law relating to the sale and manufacture of intoxicating liquor. On review the circuit court held that the pardon reinstated plaintiff’s eligibility to obtain an employee’s liquor permit. The court of appeals, Kansas City district, affirmed.

The reasoning is fully set forth in the court of appeals opinion and, therefore, it need not be restated or paraphrased here.

I do not believe there is any material or essential difference between a president or a governor pardoning after a criminal conviction and a president or governor pardoning violations the supervisor of liquor control found a licensee to have committed.

For the foregoing reasons and on the basis of Damiano v. Burge, supra, I would hold that the Governor of Missouri did have the power to issue the instant pardon and that it reinstated Theodoro’s eligibility to be considered for a license to sell package liquor.

Therefore, I dissent from the principal opinion in this case.

      . "STATE OF MISSOURI
      [Great Seal of the State of Missouri affixed]
      TO ALL WHO SHALL SEE THESE PRESENTS, GREETING:
      Know ye, that, by virtue of authority in me vested by law, and for good and sufficient reasons appearing, I, WARREN E. HEARNES, Governor of the State of Missouri, do hereby pardon, release, and discharge James D. Theodora, Jr. d/b/a One-Stop Package who was on September 13, A.D. Nineteen Hundred and Sixty-Seven, by judgment of the Supervisor of Liquor Control found guilty of violations of the laws and regulations of the State of Missouri and had his liquor license revoked forever for the crimes of sale of intoxicating liquor on Sunday and sale of intoxicating liquor by minor and I do hereby
      restore to him all the rights of citizenship and entitle the said James D. Theodora, Jr. to all the rights, privileges and immunities which by law attach to and result from the operation of these presents: In Testimony Whereof, I hereunto set my hand and cause to be affixed the Great Seal of the State of Missouri. Done at the City of Jefferson, this 2nd day of November A.D., Nineteen Hundred and Seventy-Two.
      BY THE GOVERNOR: s/ Warren E. Hearnes s/ James C. Kirkpatrick _
      Secretary of State
      ' Deputy Secretary of State"