author: PER CURIAM.

text:
    STATE of Missouri ex rel. Robert STANLEY, Relator, v. The Honorable Lawrence 0. DAVIS, Judge, 20th Judicial Circuit, Respondent.
    No. 39710.
    Missouri Court of Appeals, St. Louis District, Division Four.
    May 9, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Shaw, Howlett & Schwartz, Robert W. Meyers, Clayton, for relator.
    Joseph Aubuchon, Pros. Atty., Union, for respondent.
   PER CURIAM.

I.

This is an original proceeding in prohibition against respondent, Judge, seeking to prohibit him from proceeding further in a criminal cause wherein relator, Stanley, is charged with the offense of assaulting a police officer, § 557.215, RSMo., and in effect ordering respondent to dismiss an information pending against relator charging that offense. We have jurisdiction. Article V, Section 4, Mo.Const. For reasons hereinafter stated, we conclude that our preliminary writ heretofore issued was improvidently granted and it is therefore quashed.

This case is one of first impression in this state. It deals with the construction of the “Agreement on Detainers” enacted by the General Assembly effective June 21, 1971. § 222.160 et seq. RSMo. 1975. The facts are rather simple but the resolution of the legal issue presented is difficult.

II.

On May 24, 1976, the relator, Robert Eugene Stanley, was sentenced to three years imprisonment and a three-year parole term by the United States District Court for the Eastern District of Missouri. He was incarcerated at the United States Medical Center for Federal Prisoners in Springfield, Missouri. However, on May 28, 1976, relator was charged in the circuit court of Franklin County, Missouri, with the offense of assaulting a police officer in the performance of his duty, which offense was apparently committed prior to May 24, 1976. On June 1, 1976, arraignment for the state offense was postponed at the request of Stanley’s counsel. On July 2, 1976, the cause was called in Franklin County and the prosecuting attorney and counsel for the defendant-relator appeared. “By agreement of counsel,” arraignment was postponed pending “appearance by Defendant under writ as the Defendant is now in custody of Federal authorities at an unknown institution.” A fair inference from the pleadings in this proceeding indicates that sometime thereafter a detainer was entered against the relator for the state offense of striking a police officer. On at least two occasions prior to May 1977, relator wrote to the prosecuting attorney requesting a speedy trial on the state charge. Finally, on May 5, 1977, relator filed a motion in the circuit court of Franklin County requesting a “speedy trial.” In that motion relator alleged that he was charged with the offense of striking a police officer and that he had not yet been tried for that offense. He alleged that he was presently incarcerated in the Medical Center and was due to be released “sometime the latter part of 1978 and thus, I request an immediate trial upon said charge in order that aforementioned state charge will not continue to have an adverse effect upon the conditions of my confinement.” Machinery was put in motion to transfer the relator from Springfield to Franklin County and the necessary papers were completed. The assistant prosecutor completed the necessary forms under the “Agreement on Detainers” including “Prosecutor’s Acceptance Of Temporary Custody Offered In Connection With A Prisoner’s Request For Disposition Of A Detainer.” The prosecutor accepted temporary custody and “propose[d] to bring this person to trial on the . . . information . . . within the time specified in Article 111(a) of the Agreement on Detain-ers.” He agreed to return the prisoner immediately after the trial is completed in Missouri.

On June 1, 1977, the respondent judge issued an order directing the sheriff to accept temporary custody of the defendant from the federal authorities and to take custody and transport relator to the circuit court and to produce him before the court on June 21, 1977. On June 21,1977, relator and his counsel appeared before the court; relator was arraigned and entered a plea of not guilty. The cause was set for trial on July 21, 1977. After arraignment, the respondent judge ordered the sheriff to return the relator to the custody of the U.S. Bureau of Prisons at the U.S. Medical Center to “await trial and again produce him before this Court on July 19, 1977 to be available for conference with his counsel and for trial on July 21,1977.” Relator was returned to the U.S. Medical Center on June 21,1977. On July 19,1977, the sheriff of Franklin County was ordered to transport the relator from Springfield back to Franklin County.

On July 21, 1977, relator and counsel appeared before the court. Both sides announced ready for trial, but, because of other cases, the court could not try the relator. The case was therefore passed to September 6, 1977 for resetting “unless an earlier date becomes available in which event this case will receive a preferred setting. Sheriff ordered to retain custody of the Defendant under the Agreement on De-tainers and hold Defendant on his Federal sentence.” Relator has been incarcerated in Franklin County jail since July 19, 1977.

On July 27, 1977, relator, through counsel, filed a motion to dismiss the case pending against him. The thrust of his motion was that on several occasions prior to May 5, 1977 he wrote to the prosecutor requesting a speedy trial on the state charge, and he contended that more than 180 days have elapsed since his initial request for a speedy trial (December 29,1976) so that, under the Agreement on Detainers, the charge should be dismissed. In paragraph 12 of the motion relator alleged that

“ . . . the Defendant was returned to the Federal institution in Springfield, Missouri on June 21, 1977 without a trial having been held in the matter for which he is detained herein and for which the Defendant is to be placed on trial.”

Relator prayed that the information should no longer be of any further force and should be dismissed with prejudice. The prosecutor filed his motion to overrule relator’s motion to dismiss and contended that a prisoner’s request must be made to the court. Such request was not made until he filed his motion for speedy trial on May 5, 1977, and a trial could well be had within 180 days from May 1977.

The motion to dismiss was argued in August 1977 and overruled on 'September 6, 1977. Although the docket entries do not reflect it, the cause was then set for trial in Franklin County on October 17, 1977.

But, on September 28, 1977, relator filed his petition for writ of prohibition alleging the above facts and requesting that this court prohibit the respondent from proceeding with the cause and attempting to exercise jurisdiction over the cause, except to order its dismissal.

We issued our preliminary writ on October 12, 1977, and a return was filed on behalf of the respondent and denied that the respondent had no jurisdiction to proceed with the cause.

III.

In this proceeding relator contends that the respondent erred in overruling his motion to dismiss the information because the relator’s rights have been violated under the Interstate Agreement on Detainers and because the language of the Agreement directs that the information is to be dismissed with prejudice. The whole thrust of relator’s contention is that, because the relator was transferred from the Medical Center at Springfield, Missouri, to Franklin County, Missouri for arraignment and then returned to the Medical Center at Springfield before being tried for the state offense, the mandate of the Agreement on Detainers is that the information must be dismissed with prejudice. He contends that, although the Federal Medical Center is located in Missouri and he was brought to Franklin County and returned prior to trial, this still requires that the information be dismissed because the Agreement defines the term “state” to mean the “United States of America.” Relator relies in his brief on two federal district court decisions. United States v. Mauro, 414 F.Supp. 358 (E.D.N.Y.1976) and United States v. Sorrell, 413 F.Supp. 138 (E.D.Pa.1976).

The issue with which we are confronted is: Does the Interstate Agreement on De-tainers to which Missouri is a party require that an information or indictment be dismissed when a prisoner confined in a federal institution located in Missouri upon a federal charge requests that he be tried on a state charge on which a detainer has been issued and in compliance with that request he is transferred by Missouri authorities to the state court located in Missouri for arraignment and is then returned to the federal facility in Missouri without having been tried on the state charge? Or, to put the issue differently, when a federal prisoner located in Missouri upon whom there is a detainer requests that he be tried on a state charge and is then transferred in accordance with that request to another county within the same state for arraignment but then returned to the federal facility before being tried on the state charge, must the information on the state charge be dismissed with prejudice because of the Interstate Agreement on Detainers?

IV.

The Agreement on Detainers was adopted in Missouri by an emergency measure effective June 21, 1971. §§ 222.160-222.-220, RSMo.1975. Much has been written on the law of detainers and about the “baleful effect of detainers.” McQueen v. Wyrick, 543 S.W.2d 778, 783 (Mo. banc 1976) (Seiler, J., concurring). The basic statutory framework of the Agreement on Detainers has been summarized in United States ex rel. Esola v. Groomes, 520 F.2d 830, 833-834 (3rd Cir. 1975). The Agreement is a comprehensive statute which is designed to handle two major problems facing a prisoner against whom a detainer representing open criminal charges in another jurisdiction has been lodged.

Article I of the Agreement states that the party states find that charges outstanding against a prisoner “produce uncertainties which obstruct programs of prisoner treatment and rehabilitation.” To implement the right to a speedy trial and to minimize the interference with a prisoner’s treatment and rehabilitation, the Agreement creates several rights previously nonexistent. See discussion in Groomes, 520 F.2d at 833-834.

Article III of the Agreement gives the prisoner the right to request disposition of any untried indictment or information which is the subject of a detainer lodged by a party state. In such case trial must be held within 180 days if no continuance is granted “after he shall have caused to be delivered to the prosecuting officer and the appropriate court” written notice of his request. If trial is not so held, criminal charges are to be dismissed. Article III, therefore, gives to the prisoner a mechanism to be given a speedy trial on the charges. Article III, subsection 4, also provides that

“ . . . If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”

Article IV, on the other hand, is the mechanism by which the appropriate officers of the demanding state may proceed against the prisoner confined in another jurisdiction. It provides a simplified procedure for allowing the demanding state to gain the presence of the defendant for trial. Article IV(1) provides that, absent intervention by the “governor” of the sending state and after a thirty-day waiting period, a request for temporary custody by the prosecutor which is approved, recorded and transmitted by the court having jurisdiction over the pending charge shall be honored by the sending state. Article IV(3) requires that trial be had within 120 days of the arrival of the prisoner in the “receiving” state absent a reasonable continuance. Language similar to Article 111(4) is found in Article IY(5):

“5. If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to paragraph 5 of article V of this agreement, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”

The Agreement on Detainers has been adopted by most states of the United States and the United States.

Article 11(1) defines state to mean “a state of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the commonwealth of Puerto Rico.” § 222.160, RSMo.

V.

The history of the reform of the detainer process was set in motion in 1948 when the Council of State Governments appointed a committee representing various organizations to consider possible solutions to the problems caused by the placing of detain-ers. That committee adopted certain guiding principles but failed to recommend specific legislation. But during 1955 and 1956 the committee was reconstituted under the auspices of the Council of State Governments and new associations were added. This new committee recommended certain legislation including the “Interstate Agreement on Detainers.” Council of State Governments, Suggested State Legislation, Program for 1957 at 78 (1956). In all this movement for reform, state problems dominated the drafting process and during the decade or more after its approval the agreement was adopted by several states. In all that time, the evidence clearly suggests that the effect of the Interstate Agreement on Detainers was never contemplated to have effect on the federal government, except in a receiving capacity. The report which accompanied the Agreement when it was first proposed by the Council of State Governments stated that it provides a method whereby prosecuting authorities may secure prisoners incarcerated in other jurisdictions for trial before the expiration of their sentences. Council of State Governments, Suggested State Legislation, Program for 1957 at 78 (1956), quoted in Thompson, 562 F.2d at 243. Such a statement was true only as to state governments, since the federal government had no difficulty in obtaining state prisoners by means of the traditional writ of habeas corpus. The evidence seems to be clear that over the long history the reform movement regarding detainers was designed to govern state-to-state transfers of prisoners and was not primarily designed to apply to the federal government.

The impetus to enact federal legislation probably arose because of Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607, in 1969. The Smith court, invoking Sixth Amendment speedy-trial principles, held that “[u]pon the petitioner’s demand, [the demanding state] had a constitutional duty to make a diligent, good-faith effort to bring him before the [appropriate court] for trial.” 89 S.Ct. at 579. Smith opened the door and in 1970 Congress adopted the Agreement. The legislative history of that federal enactment is sparse. No opposition occurred. Two brief speeches were made. The Agreement was enacted. When the federal government enacted the measure enormous problems were raised. All courts since then seem to agree that the measure as applied to the federal government is “poorly drafted legislation” and some corrective measures should be taken.

The language of the Agreement on De-tainers, when viewed as a whole, raises serious doubts that it was meant to apply to federal-state intrastate transfers. So long as the Agreement included only the states and not the federal government, geographical and sovereignty concepts posed no particular problems. But when federal legislation adopted the text of the state compact and simply included the “United States of America” as meaning a “state” under Article II, serious problems of interpretation arose.

For example, there are several inconsistencies. Under Article V(8), § 222.160, RSMo. [Federal equivalent Article V(h)] it is stated:

“8. From the time that a party state receives custody of a prisoner pursuant to this agreement until such prisoner is returned to the territory and custody of the sending state, the state in which the one or more untried . . . informations . are pending . shall be responsible for the prisoner . . . .” (emphasis added).

When a prisoner is transferred from a federal institution in the same state, he has never left the United States. Does United States “territory” mean the confines of the federal institution? If a state prisoner is taken to a federal court in the same state when does he return to the “territory” of the sending state?

Under Article IV(1), § 222.160, RSMo. [Federal equivalent Article IV(a)], the prosecutor of the requesting state may institute proceedings against the prisoner after thirty days if the “governor” of the sending state does not disapprove the request for temporary custody. Such a provision makes sense with respect to state-to-state transfers but not federal-state intrastate transfers, nor for that matter federal-state interstate transfers. Who is the “governor” in the federal system?

Under Article IV(3), it is provided that trial is to be commenced within one hundred twenty days of the arrival of the prisoner in the “receiving state.” Such language is clear and understandable in interstate transfers but confusion arises if a prisoner is being transferred from a state institution to a federal court in the same state or from a federal institution to a state court within the same state. In such instances “receiving state” must mean a transfer of sovereign custody.

These are but a few of the difficulties created when the federal government adopted the Interstate Agreement on De-tainers. The original agreement was not designed to deal with federal-state intrastate transfers.

VI.

Since 1970, the federal courts, trial and appellate, have struggled with the problem of inter-governmental, as distinguished from interstate, detainers. The issue in the federal cases has largely been whether a writ of habeas corpus ad prosequendum, under 28 U.S.C.A. § 2241(c)(5), is a “detain-er” within the meaning of the Detainer Agreement, and the effect of the failure of the federal court to try the state prisoner in the federal system prior to returning him to the state institution. Article IV(e) [Article IV(5), § 222.160, RSMo.]. The two most cited authorities holding that a federal writ of habeas corpus is a “detainer” within the meaning of the Agreement and holding that a federal indictment against a state prisoner who is brought to the federal system under a writ is to be dismissed if not tried before return to the state institution are Sorrell and Mauro.

In Sorrell, the federal grand jury in the Eastern District of Pennsylvania returned an indictment for unlawful possession of a firearm. Sorrell was at the time in custody in a Pennsylvania state institution. The district court issued a writ of habeas corpus directing that the prisoner be produced at the U. S. Courthouse in Philadelphia for arraignment. He was arraigned and then returned to the state institution by the marshal. He was brought back two more times and finally Sorrell filed a motion to dismiss the indictment pursuant to Article IV(e) [Article IV(5) in Missouri] of the Interstate Agreement on Detainers. The district court granted the motion. The Government appealed. The Third Circuit held that a writ of habeas corpus under 28 U.S.C.A. § 2241(cX5) is a “detainer” within the meaning of the Agreement, relying on legislative history that a detainer means any notification filed with the institution in which the prisoner is serving a sentence. “ . . . [B]y adopting the Detainer Agreement in 1970, Congress intended its provisions to apply whenever a detainer had been lodged with a state jurisdiction by the Federal Government.” 562 F.2d at 232. The court also noted that by returning the prisoner to the state institution his ability to consult with counsel was impeded.

In Mauro, Mauro and Fusco were indicted by a New York grand jury on federal charges of criminal contempt. Both had refused to testify before a federal grand jury. At the time both were inmates of state penal institutions in New York. Separate writs of habeas corpus were issued by the district court in New York directing the wardens to produce them before the federal court. They were arraigned and trial was set. Because of crowded conditions in the federal facility, they were ordered returned to state custody for several months awaiting trial. They moved for dismissal under Article IV(e). The district court granted the dismissal. The Second Circuit in a 2 to 1 decision affirmed. The Government, as in Sorrell, contended that the writ was not a “detainer” within the meaning of the Agreement. The Court held otherwise:

“ . . .In view of the clear language of Article IV(e), we believe the Agreement was plainly designed to avoid the shuttling of prisoners back and forth between the penal institutions of the two jurisdictions. The disruptive effect upon the prisoners’ morale is the same irrespective of the caption on the paper which produces him in the jurisdiction seeking him for trial. The participating parties to the Agreement have moreover solemnly promised that his trial will be expeditious and will take place before he is returned on penalty of a dismissal of the indictment with prejudice.” Mauro, 544 F.2d at 593.

Other federal circuits do not take the same view as Sorrell and Mauro and the District Court of the Western District of Missouri states that it is “noteworthy” that Mauro has been limited by later decisions.

In Huff, petitioner, by virtue of a federal writ of habeas corpus, was transferred from the Training Center for Men at Moberly, Missouri to federal custody in Kansas City. After arraignment and pleading not guilty he was returned to Moberly — the state institution. He was transferred back and forth later on more than one occasion pursuant to writs. He then brought, after sentence, a 2255 motion challenging his four-year sentence. He relied on Article IV(e) and Mauro. In Huff, 437 F.Supp. at 567, the Western District held that under the “more soundly reasoned” cases, “ . . . it is not reasonable to equate action taken under the authority of the Interstate Agreement with action taken pursuant to a federal writ of habeas corpus ad prosequendum issued by a federal court pursuant to 28 U.S.C. § 2241(c)(5).”

“ ‘The differences between a detainer and a writ of habeas corpus ad prose-quendum, in purpose, legal basis, and historical context, are so fundamental as to constitute each a separate, distinct avenue for obtaining custody of prisoners for federal prosecution.’ ” 437 F.Supp. at 567, quoting from Kenaan, 557 F.2d at 915.

The district court agreed with the “more soundly reasoned cases” and with the dissent in Mauro that Article IV of the Agreement on Detainers does not apply to a writ of habeas corpus when the state prisoner is taken into federal custody for brief periods of arraignment, plea and omnibus hearings and dismissed the motion to vacate sentence.

A conflict therefore exists among the federal circuits concerning the applicability of Article IV(e) of the federal agreement when a writ of habeas corpus has been issued by the federal courts. The Supreme Court of the United States has granted certiorari in Mauro and Ford in an apparent attempt to resolve the conflicts.

State courts interpreting a state’s equivalent to Article IV(e) have held that even in interstate transfers that an indictment or information is not to be dismissed under certain circumstances. In Neville v. Friedman, 67 I11.2d 488, 10 Ill.Dec. 575, 367 N.E.2d 1341 (1977), the Supreme Court of Illinois held that prohibition did not lie when a federal prisoner serving a sentence in Indiana was transferred to Sangamon County for the purpose of trial when he was returned to the federal institution prior to trial when counsel requested a continuance.

The Supreme Court of Illinois held that the language of Article IV(e) [If trial is not had on an information prior to the prisoner’s being returned to the original place of imprisonment, the information is to be dismissed] is not to be taken literally.

“ . . . A cardinal rule of statutory construction is, however, that the intent and meaning of a statute are to be determined by looking to the entire statute. Each provision should be construed in connection with every other provision and in light of the statute’s general purposes.” Neville, 10 Ill.Dec. at 577, 367 N.E.2d at 1343.

VII.

The relator seizes upon two portions of the Agreement to substantiate his claim that the information against him filed in the circuit court of Franklin County should be dismissed: further force or effect, and the court shall enter an order dismissing the same with prejudice”; and

(1) Section 222.160, Article III, subsection 4: “ . . . If trial is not had on any information . . . prior to the return of the prisoner to the original place of imprisonment, such ... information . . . shall not be of any

(2) Section 222.160, Article II, subsection 1, that a “state” means “the United States of America.”

We believe that, based on (1) the analysis of the total context of the Agreement as shown above, (2) the history of the Agreement, (3) the “more soundly reasoned” federal decisions and (4) the rehabilitative and beneficent purposes of the Agreement, the above relied upon subsections are not dis-positive of the issues here. We conclude that, based upon the history of the Agreement, the total context of the Act and the purposes embodied therein, Article 111(4), § 222.160, RSMo. is not applicable to the situation where a federal prisoner in Missouri is transferred to a Missouri court for the limited purposes of arraignment, appearances or hearings and then returned to the federal facility in Missouri. In short, that section is not applicable to federal-state intrastate transfers for limited purposes. The intent and meaning of the statute must be determined by examining the entire Agreement and not isolated specific sections. The Agreement was meant to be a shield against unconstitutional deprivation of a speedy trial and not as a sword. To adopt the relator’s position in this proceeding would be detrimental to him and to society which is interested in the rehabilitation of its offenders and would thwart the beneficent purposes of the rehabilitative ideal embodied in the Detainer Agreement.

The trial court here, after honoring the relator’s request under Article III of the Agreement and transferring him from the federal Springfield Medical Center for arraignment, acted reasonably and in the relator’s best interests by ordering retransfer to the federal medical center. The county jail is not designed or intended for rehabilitative purposes. There was no deprivation of counsel under the circumstances here. No objection was made by the relator or his retained counsel to the retransfer to the Medical Center after arraignment in Franklin County. It was not until July 27, 1977 that the motion to dismiss the information was made.

We hold, therefore, that when a federal prisoner confined in Missouri requests that he be tried upon a state detainer under Article III of the Agreement on Detainers and is transferred intrastate to a state court in Missouri for purposes of arraignment, the state trial court does not lose jurisdiction after arraignment to retransfer the prisoner to the federal institution located in Missouri and does not violate the provision of Article III(4).

VIII.

In view of the foregoing, we hold that our preliminary writ heretofore issued was improvidently granted. Prohibition lies only to prevent a lower court from acting without or in excess of its jurisdiction. State ex rel. Vogel v. Campbell, 505 S.W.2d 54, 58 (Mo. banc 1974). The court here acted within its jurisdiction.

The preliminary writ is quashed.

All the Judges concur.

      . We have not been favored by a brief from the prosecuting attorney representing the respondent judge. The suggestions in opposition to the preliminary writ say that to dismiss the information would be “unjust” and that such was not the intent of the framers of the Agreement. In such an important matter we believe that it is incumbent on counsel to file a brief and give us his thoughts and analysis. We have not received them.

      . Although relator does not so inform us, Mauro was affirmed in 544 F.2d 588 (2nd Cir. 1976) and cert, granted by the Supreme Court of the United States — 434 U.S. 816, 98 S.Ct. 53, 54 L.Ed.2d 71 (1977). The cause was set for oral argument in the Supreme Court of the United States in tandem with United States v. Ford, 550 F.2d 732 (2nd Cir. 1977) — 434 U.S. 816, 98 S.Ct. 53, 54 L.Ed.2d 72 (1977). The case was argued February 27, 1978 — 46 LW 3555.

      .Affirmed, 562 F.2d 227 (3rd Cir. en banc 1977). Four judges dissented.

      . The prisoner with a detainer filed against him may suffer several disabilities ranging from mandatory maximum-security classification to exclusion from vocational rehabilitation programs. See Wexler and Hershey, Criminal De-tainers in a Nutshell, 7 Crim.L.Bull. 753 (1971). McQueen, 543 S.W.2d at 783 quotes from Smith v. Hooey, 393 U.S. 374, 379, 89 S.Ct. 575, 578, 21 L.Ed.2d 607 (1969), quoting the director of the Federal Bureau of Prisons:
      “ ‘[I]t is in their effect upon the prisoner and our attempts to rehabilitate him that detain-ers are most corrosive. The strain of having to serve a sentence with the uncertain prospect of being taken into the custody of another state at the conclusion interferes with the prisoner’s ability to take maximum advantage of his institutional opportunities. His anxiety and depression may leave him with little inclination toward self-improvement.’ ”
      Bennett, The Last Full Ounce, 23 Fed.Prob. 20, 21 (1959); see also Dauber, Reforming the De-tainer System: A Case Study, 7 Crim.L.Bull. 669, 671 (1971).

      . See list in 12A V.A.M.S., 1977 Supp., following § 222.160, p. 179. The Agreement was adopted by Congress and became effective as to the United States on December 9, 1970, Pub.Law 91-538, 18 U.S.C.A. Appendix, (1977 Supp. in volume 18, § 3531 to End), p. 230. The Congress adopted the Agreement after many states had done so.

      . The history is excellently set forth in United States v. Thompson, 562 F.2d 232, 243 (3rd Cir. en banc 1977), Garth, J., dissenting. The resume here is largely drawn therefrom.

      .See the many references in Thompson, 562 F.2d at 244, Garth, J., dissenting. When the House and Senate Judiciary Committees issued reports in 1968 and 1970, “those reports discussed the need for federal participation solely in terms of the effect which the Agreement would have on federal prisoners with outstanding state detainers.” 562 F.2d at 244.

      . In a companion case, Thompson, 562 F.2d 232, the district court denied a motion to dismiss the federal indictment. The Court reversed holding that the defendant was not as available to his counsel during the period in which he was returned to the state institution as he would have been had he been retained by the federal authorities. The court could not say that the failure to comply with the “Agreement’s purpose” was so insubstantial that the working of Article IV(e) should not be applied. There were four vigorous dissents. See also Ford, 550 F.2d 732, cert, granted 98 S.Ct. 53.

      . Hunter, J., in Huff v. United States, 437 F.Supp. 564, 567 (W.D.Mo.1977), citing United States v. Chico, 558 F.2d 1047 (2nd Cir. 1977). In Chico, the Second Circuit held that the indictment was not to be dismissed under Article IV where the prisoner is removed from a state facility for a few hours for purposes of arraignment without interruption of rehabilitation.

      . United States v. Kenaan, 557 F.2d 912 (1st Cir. 1977); Ridgeway v. United States, 558 F.2d 357 (6th Cir. 1977); United States v. Scallion, 548 F.2d 1168 (5th Cir. 1977).

      . The Court also said: “. . [W]e believe the literal reading of article IV(e) urged upon us by petitioner is inimical to the fundamental purpose of the Act. County jails are designed and intended for short-term incarceration of prisoners, and are neither equipped nor staffed for the type of rehabilitative and training programs found in prisons. It seems entirely clear to us that petitioner’s continued detention in the Sangamon County jail . . . would substantially interfere with the Federal prisoner-treatment and rehabilitation programs which were employed at Terre Haute. Such interference is not in the best interests of petitioner, . . nor of society interested in the rehabilitation of its offending members.” 10 Ill.Dec. at 577-578, 367 N.E.2d at 1343-1344. See also People v. Dye, 45 Ill.App.3d 465, 4 Ill.Dec. 235, 359 N.E.2d 1187 (4th Dist. 1977).

      . “ . . .If trial is not had on any . . . information . prior to the return of the prisoner to the original place of imprisonment, such . . . information . shall not be of any further force or effect . . . We express no opinion on whether the provision is applicable to interstate transfers of federal-state prisoners. That issue is not before us. See the resolution proposed in Sorrell, Garth, J., dissenting.


source: Caselaw Access Project

author: WEIER, Judge.

license: Public Domain

text:
    Clarence M. HOUSTON and Florence L. Houston, his wife, Plaintiffs-Appellants, v. COLUMBIA FEDERAL SAVINGS AND LOAN ASSOCIATION, d/b/a Farm and Home Savings Association, Defendant-Respondent.
    No. 38443.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 16, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Application to Transfer Denied Sept. 12,1978.

      John E. Keath, Campbell & Campbell, David L. Campbell, Clayton, for plaintiffs-appellants.
    Braekman, Copeland, Oetting, Copeland, Walther & Schmidt, Robert W. Copeland, Stefan J. Glynias, Clayton, for defendant-respondent.
   WEIER, Judge.

Plaintiffs obtained a jury verdict for $10,-000 in actual and $25,000 in punitive damages for defendant’s alleged conversion of plaintiffs’ personal property removed from a building owned by defendant. The trial court set aside the verdict and entered judgment for defendant in accordance with its motion for directed verdict and in .the alternative, sustained defendant’s motion for a new trial. We affirm the judgment of the trial court granting defendant’s motion for a judgment notwithstanding the verdict because plaintiffs failed to make a submissible case.

On August 21, 1970, Columbia Federal Savings and Loan Association and Jacqueline E. Finch entered into a “commercial lease” agreement for use of the premises owned by defendant located at 3746 Gran-del Square in St. Louis. The premises were to be used and occupied by Renaissance Catering of which Ms. Finch was president and the registered agent. The lease agreement specifically prohibited the assignment of the lease and the subletting of the premises. The lease limited occupancy of the property to “Tenants own use.”

On December 20,1970, plaintiffs Florence and Clarence Houston, the parents of Jacqueline Finch, moved into the building with all their furniture and personal belongings, some of which was placed on the second floor with the remainder stored in the basement. Renaissance Catering Company occupied the first floor of the three-story building. Jacqueline Finch apparently lived there when her parents moved in the building. No one informed defendant of plaintiffs’ move and defendant had no knowledge they lived at the premises.

Jacqueline Finch fell behind in rental payments. Between January and March of 1971 defendant sent her several letters demanding rent and finally on March 30,1971, defendant notified her that in ten days it would exercise its option to declare the lease forfeited for nonpayment of rent. On May 21, 1971, defendant obtained a judgment in the magistrate court against Jacqueline Finch (who had been personally served with a summons) for $1400, possession of the premises and costs.

In mid-August, 1971, Mr. and Mrs. Houston left the building, moved in with a daughter on Elmbank Avenue, and subsequently returned to a building owned by them at 4134 Margaretta. They did not, however, remove their furniture and belongings from defendant’s premises because they “didn’t have any place to put it” and “didn’t know where to take it, or what to do with the stuff.”

Defendant contacted Grass Moving and Storage to assist in the removal of property from the premises. The defendant did not investigate as to whether other persons had been living on the premises. However, upon entry the premises were found without electricity, with food rotting in the refrigerators, and with no one living therein. For three days, commencing on September 15,1971, all property was removed from the building, in the presence of the sheriff and a bank officer. The sheriff ordered the movers to store the property rather than leave it on the public sidewalk.

On one occasion during the three-day evacuation Kenneth Houston, the son of plaintiffs, arrived at the premises to obtain insurance papers for his father and observed the building’s contents being removed. He informed the sheriff about the nature of his business at the building. Although he did not apprise anyone that his parents had been living there he did state to the sheriff that his parents’ possessions were in the building. Kenneth testified that his purpose in coming to the premises was not to preserve his parents’ furnishings, but in any event, the sheriff and an employee of defendant told him that he could not remove them.

Clarence and Kenneth Houston subsequently asked the sheriff and Grass Moving about plaintiffs’ property. In December, 1971, Mr. and Mrs. Houston, Kenneth Houston and Jacqueline Finch met at Columbia Federal Savings with the bank’s president and requested the return of plaintiffs’ property. The bank maintained that the Hous-tons would have to go to the warehouse and identify their property, separate it from the other furnishings removed from the building, and pay the cost of moving it to their present residence. The Houstons, however, refused to pay any costs. They also “wouldn’t go to the storage company and separate their belongings from their daughter’s . . . ” apparently because they did not want to pay to have their belongings moved.

In a declaratory judgment action brought by defendant, the circuit court on February 27, 1976, determined which pieces of the property removed from defendant’s premises belonged to plaintiffs and which belonged to Jacqueline Finch. On March 12, 1976, the court amended that order by compelling plaintiffs to identify the miscellaneous boxes and their contents claimed by plaintiffs. On March 25, 1976, defendant’s attorney sent a letter to plaintiffs’ attorney requesting that plaintiffs pick up their property at the warehouse. On April 12 plaintiffs’ attorney wrote back saying plaintiffs “have no intention of coming to the warehouse to pick up the property” and that they “will accept return of the property only upon delivery by you at a place to be designated by our clients . . . ” Defendant’s attorney responded in a letter dated April 14 that defendant “may be willing to pay the delivery charges for your clients, however at this time your clients have still to identify which boxes they claim as theirs per the Court’s Order.” This letter went on to say that after the property is identified defendant can then “have an estimate made as to what the expense would be in delivering the property to your clients, and thereafter make a determination as to whether or not [defendant] is willing to pay that delivery cost.” Defendant’s attorney sent another letter to plaintiffs’ attorney on May 12,1976, offering to deliver the property to plaintiffs at defendant’s expense but plaintiffs’ attorney testified he never received it. Mr. Houston acknowledged that his lawyer advised him that defendant wanted to give the property back to him and his wife. He said they did not get the property back because “I don’t have any place to put it” and “I haven’t had the facility to pick it up.” Plaintiffs never identified the contents of the boxes referred to in the amended court order in the declaratory judgment suit prior to the trial which began on May 26, 1976, because Mrs. Houston was not physically capable of going to the warehouse and Mr. Houston was not “able to.”

On appeal plaintiffs raise several points and numerous subpoints alleging trial court error in entering judgment for defendant notwithstanding the verdict for plaintiffs or alternatively sustaining defendant’s motion . for new trial. On review we first consider whether plaintiffs made a submissible case of conversion by reviewing the evidence and all permissible inferences therefrom in the light most favorable to plaintiffs. Smith v. Allied Supermarkets, Inc., 524 S.W.2d 848, 852[3] (Mo.banc 1975); Ogle v. Terminal R.R. Ass’n. of St. Louis, 534 S.W.2d 809, 811[2] (Mo.App.1976).

Conversion is the unauthorized assumption of the right of ownership over the personal property of another to the exclusion of the owner’s right. Wirth v. Heavey, 508 S.W.2d 263, 267[3] (Mo.App.1974). Proof of conversion can be shown either by: (1) a tortious taking, or (2) by any use or appropriation to the use of the person in possession, indicating a claim of right in opposition to the rights of the owner, or (3) by a refusal to give up possession to the owner on demand. Arnold v. Prange, 541 S.W.2d 27, 30[3] (Mo.App.1976).

We examine those required elements of proof in the order stated. Plaintiffs contend that a submissible case of “tortious taking” was made because defendant unlawfully came into possession of their property in that notice of eviction was given only to Jacqueline Finch and § 535.020 RSMo. 1969 required notice be given to them as well. If this statute requires that the landlord serve not only the person whose name appears on the lease but also every other person occupying the rented premises before the landlord can obtain a valid judgment to recover possession, the landlord would be required to serve all friends, acquaintances and relatives (young and old) of the lessee who were residing on the premises even if these people never had any relationship or contact with the landlord and the landlord never knew they were there. We do not believe the legislature intended such an unreasonable requirement.

Chapter 535, RSMo.1969, is entitled “Landlord-Tenant Actions in Magistrate Court.” The chapter contains provisions for a summary procedure available to landlords to obtain a judgment for delinquent rent and for possession of the rented premises. The first section of the chapter, § 535.010, establishes that “it shall be lawful for the landlord to dispossess the tenant and all subtenants ... in the manner herein provided.” Note that this section does not mention “all persons occupying the premises” as is true of §§ 535.020 and 535.-040. For recovery to be had in a suit for rent and possession under § 535.020 a landlord and tenant relationship must be shown. Davis v. Bradford, 308 S.W.2d 363, 366[4] (Mo.App.1957). In the chapter are also sections (535.070, 535.080 and 535.090) which are applicable to a situation where a purchaser of land to whom no attornment has been made by a delinquent tenant and the purchaser seeks to obtain possession only. This is a separate action from the one described in § 535.020, requiring different averments in the petition and proof. Barclay v. Wyatt, 223 Mo.App. 1022, 14 S.W.2d 44 (Mo.App.1929). But the relationship of the parties in such a case is one arising out of the prior relationship of landlord and tenant. Because Chapter 535, RSMo. 1969 treats only of landlord-tenant relationships and § 535.020 sets out a statutory proceeding for recovery of delinquent rent and possession from tenants or subtenants, we hold that requirements of notice to “tenant or lessee and to all persons occupying the premises ” (emphasis added) therein means only those persons who bear a relationship of tenant or subtenant to the landlord and not to others who might be there as invitees, business or social, of the tenant or subtenant.

Because defendant recovered possession of the building pursuant to a valid judgment, the removal and storage of plaintiffs’ property was not a “tortious taking” but a lawful one. Storing the property rather than leaving it on the street was permissible and reasonable. This alone does not demonstrate a tortious taking and also fails to prove conversion. “The bare removing of one’s chattel from one spot to another, without denying his ownership, but on the contrary acknowledging it, cannot be a conversion.” Sparks v. Purdy, 11 Mo. 142, 145 (1847).

Plaintiffs do not allege, and the evidence failed to show, the second method of proof of a conversion: use which indicated a claim of right contrary to the owner’s rights. Defendant reasonably put into storage all the items found on its premises, and gave access to plaintiffs to identify and separate their articles from those in storage. There was no evidence that defendant detained plaintiffs’ personal belongings for its own use or disclaimed plaintiffs’ ownership. The evidence disclosed that defendant made no use of plaintiffs’ property.

Having failed to find either one of the first two means of proving conversion, we turn to the third: a demand by the owner and refusal. “[I]f possession was not acquired by a tortious taking or the possessor does not appropriate or use the property in a fashion to indicate a claim thereto adverse to the owner, then no evidence of a conversion exists until there is proof, first, that a proper demand for possession was made by one who is entitled thereto and, second, that the possessor wrongfully refused delivery.” Glass v. Allied Van Lines, Inc., 450 S.W.2d 217, 221[7] (Mo.App.1970). Plaintiffs’ “demand” in the instant case did not apprise defendant of the specific articles claimed by them. Defendant’s request of plaintiffs to separate and identify their belongings went unheeded. A court judgment was necessary to delineate which articles of the group in storage belonged to plaintiffs. Further, plaintiffs’ own testimony revealed that the reason they were not in possession of their property was that they had no facility to retrieve it or any place to put it. It has been stated that “[a] demand is insufficient which would require for compliance therewith that the person on whom it is made transport or carry the chattel to the owner.” 89 C.J.S. Trover and Conversion § 58, pp. 561-562. The evidence proved that plaintiffs’ own conduct caused their property to remain with defendant. No proper demand for the return of specific identifiable property was made by plaintiffs, and, therefore, no refusal for such was demonstrated by defendant’s actions. Again, plaintiffs’ evidence failed to prove a conversion by defendant.

The judgment of the trial court sustaining defendant’s motion for judgment notwithstanding the verdict is affirmed.

GUNN, P. J., and KELLY, J., concur.

      . Columbia Federal Savings was subsequently merged into Farm and Home Savings Association, with the latter institution acquiring the assets and assuming the obligations of the former. For simplicity in the disposition of this appeal, we shall continue to refer to defendant as Columbia Federal Savings.

      . At the close of their evidence plaintiffs dismissed Count II of their petition naming Grass Moving Company as a defendant.

      . Section 535.020 RSMo. 1969 provides:
      “Whenever any rent has become due and payable, and payment has been demanded by the landlord or his agent from the lessee or person occupying the premises, and payment thereof has not been made, the landlord or his agent may file a statement, verified by affidavit, with any magistrate in the county in which the property is situated, setting forth the terms on which said property was rented, and the amount of rent actually due to such landlord; that the same has been demanded from the tenant, lessee or person occupying the premises, and that payment has not been made, and substantially describing the property rented or leased; and thereupon such magistrate shall issue a summons directed to such tenant or lessee and to all persons occupying the premises by name requiring them to appear before him upon a day to be therein named, and show cause why possession of the property should not be restored to the plaintiff.” (Emphasis added.)

      . The judgment in favor of defendant in the rent and possession case was not appealed.


text:
    Martin SCHWEIG, Jr., James J. Dwyer and George H. Schlapp, Plaintiffs-Appellants, v. CITY OF ST. LOUIS and Maryland Plaza Redevelopment Corporation, Defendants-Respondents.
    No. 38564.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 16, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Application to Transfer Denied Sept. 12,1978.

      Kohn, Shands, Elbert, Gianoulakis & Gil-jum, John Gianoulakis, John A. Klobasa, St. Louis, for plaintiffs-appellants.
    Bernard J. Mellman, Cordell Siegel, St. Louis, for Maryland Plaza.
    Jack L. Koehr, City Counselor, Timothy G. Noble, Associate City Counselor, St. Louis, for City of St. Louis.
   WEIER, Judge.

Plaintiffs filed suit for declaratory judgment to contest the validity and enjoin the enforcement of two ordinances of the City of St. Louis. One ordinance declared a certain area of the city “blighted” and the other approved a redevelopment plan for the area. These ordinances were passed pursuant to the “Urban Redevelopment Corporations Law,” Chapter 353 RSMo. 1969. The trial court dismissed plaintiffs’ second amended petition on the grounds that plaintiffs had no standing to challenge the ordinances and that the petition failed to state a claim upon which relief could be granted. Plaintiffs appeal from that decision.

“On a motion to dismiss for failure to state a claim for relief, we accept as true the facts properly pleaded, giving the aver-ments a liberal construction, and making those reasonable inferences fairly deducible from the facts stated.” Concerned Parents v. Caruthersville School District 18, 548 S.W.2d 554, 558[6] (Mo.banc 1977). “If the facts pleaded and reasonable inferences to be drawn therefrom, looked at most favorably from the plaintiff’s standpoint, show any ground upon which relief can be granted, the plaintiff has a right to proceed.” Euge v. Golden, 551 S.W.2d 928, 931[4] (Mo. App.1977). Guided by these principles, we consider whether the petition states a cause of action and whether the allegations show that plaintiffs have standing to raise the issues contained in their petition.

Plaintiffs’ second amended petition alleges that on November 20, 1970, the Plan Commission of the City of St. Louis “made recommendations to the St. Louis Board of Aldermen for the redevelopment of certain areas within the City of St. Louis” including an 18.1 acre tract of land in the area around Maryland Plaza and Euclid Avenue in the City of St. Louis. A bill was introduced in the board of aldermen designating the entire area recommended by the plan commission for redevelopment as “blighted.” Thereafter there was introduced a substitute bill which declared this area, except for seven improved properties located at 21-65 Maryland Plaza, “blighted” and in need of redevelopment. This substitute bill was passed by the board of aldermen on April 6, 1971, and became Ordinance 55901. Plaintiffs do not challenge the validity of this ordinance.

On June 24, 1974, the board of aldermen passed Ordinance 56791. This ordinance declared “blighted” much of the area declared “blighted” in Ordinance 55901. It also included the previously excluded parcels at 21-65 Maryland Plaza. Plaintiffs’ petition alleges that Ordinance 56791 is “void, invalid, arbitrary, unreasonable, capricious and unconstitutional” because: (1) the bill which became Ordinance 56791 was not accompanied by a determination from the plan commission that the area was blighted as required by Chapter 29 of the Revised Code of the City of St. Louis; (2) the seven improved properties which were declared blighted are not in fact blighted but “are well maintained properties in excellent condition with outstanding architectural and esthetic features” and the declaration of blight results in a deprivation of plaintiffs’ properties without due process of law in violation of Article I, Section 10 of the Constitution of Missouri and the Fourteenth Amendment of the United States Constitution because plaintiffs’ homes, which are nearby, “are substantially similar to those at 21-65 Maryland Plaza”; (3) the designation of the seven improved properties as blighted “substantially interferes with and has substantially reduced the val-ué of said [plaintiffs’] properties because of the proximity of plaintiffs’ properties to those at 21-65 Maryland Plaza and because of the similarity of the character, condition, and style of plaintiffs’ properties to those declared blighted and thereby constitutes a taking of plaintiffs’ properties without due process of law in violation of plaintiffs’ rights as guaranteed by Article I, Section 10, Missouri Constitution of 1945, and the Fourteenth Amendment of the United States Constitution”; (4) the designation of the seven improved properties as blighted deprives plaintiffs of their properties without due process of law because “various proposed redevelopment plans would require substantial, changes in parking and traffic patterns”; (5) the designation of the seven improved properties as blighted “is arbitrary and capricious in that its purpose is not to redevelop an area in fact blighted but is rather to give tax and other improper advantages to a private real estate developer or developers, which purpose is inconsistent with Chapter 29 of the Revised Code of the City of St. Louis and Chapter 353, Revised Statutes of Missouri, 1969, thereby damaging plaintiffs and others similarly situated by virtue of decreased tax revenues from the area declared blighted”; (6) the designation of the seven improved properties as blighted is arbitrary and capricious and constitutes “a taking of plaintiffs’ properties without due process of law . in that the purported blighting would substantially change and destroy the existing residential character of the surrounding neighborhood by substantially changing traffic patterns and flow, by increasing noise, by increasing lighting and by destroying the distinctive character of the residences at 21-65 Maryland Plaza . . .”; (7) this designation is arbitrary and capricious and constitutes a “taking of plaintiffs’ properties without due process of law . in that the homes at 21-65 Maryland Plaza are residential in nature by both zoning and use and there is presently an inadequate supply of such residential structures in the area declared blighted and the area surrounding the allegedly blighted area, whereas,” there is a surplus of commercial property in this area and changing the use of the buildings at 21-65 Maryland Plaza from residential to commercial would be inconsistent with “A Housing Program For The City of St. Louis — 1970—1980,” developed by the plan commission; (8) Ordinance 56791 is invalid and void because “a primary purpose is to accomplish a rezoning” of the seven improved properties “without complying with the legal requirements for rezoning and in spite of the fact that six past efforts to rezone said Maryland Plaza area have failed and been defeated”; (9) Ordinance 56791 is invalid and void because it is inconsistent with a “Historic District Enabling Ordinance” and another ordinance creating the “Central West End Historic District”; and (10) the properties declared blighted are not in fact blighted in that it is not “ ‘impossible and uneconomical for individual owners to independently undertake to remedy such conditions’ as required by Section 29.010, Revised Code of St. Louis, if such properties are in fact blighted, but, on the contrary, the individual owners of the purportedly blighted properties are persons or corporations of substantial means.”

Plaintiffs’ second amended petition further alleges that on March 18, 1975, the board of aldermen passed Ordinance 56983 which approved a redevelopment plan for the area declared blighted by Ordinance 56791. The redevelopment plan had been submitted by defendant Maryland Plaza Redevelopment Corporation, a corporation organized under Chapter 353 RSMo.1969. The petition alleges that this corporation is “proceeding with the implementation of said redevelopment plan and will continue to implement said plan resulting in irreparable harm to plaintiffs unless enjoined” by the circuit court. Plaintiffs’ petition alleges that Ordinance 56933 is “void, invalid, arbitrary, unreasonable and capricious” because: (1) the plan fails to state which existing buildings are not to be demolished immediately as required by § 29.080(5) of the Revised Code of the City of St. Louis; (2) the plan fails to state the approximate number of families residing in the existing dwellings together with a schedule of rentals paid by them, and a schedule of vacancies in these buildings, together with rentals demanded for such vacancies as required by § 29.080(12) of the revised city code; (3) the plan fails to state a proposed plan for the relocation of families who will be displaced by the development project as required by § 29.080(13) of the revised city code; (4) the plan fails to state the character, type and quality of construction, approximate rentals and dates of availability of proposed dwelling accommodations to be offered during each stage of construction and upon completion of the project as required by § 29.080(14) of the revised city code; and (5) the plan fails to state any proposed method of financing the redevelopment as required by § 29.080(15) of the revised city code.

The petition also alleges that plaintiff Martin Schweig, Jr., owns real property at 4648 Maryland Plaza and that plaintiff George H. Schlapp owns property at 4639 Maryland Plaza and that “the west property lines of said plaintiffs’ Schweig and Schlapp properties [are] immediately adjacent to the east line” of the tract declared “blighted” in Ordinance 56791. These properties are described to be in the “immediate neighborhood” of the seven improved properties at 21-65 Maryland Plaza. The petition also relates that plaintiff James J. Dwyer “owns property at 16 Lenox Place immediately north and east” of the area declared blighted in Ordinance 56791.

Both parties agree that the standing question presented here is one of first impression. In general, for a person to have standing to sue he must have “some actual and justiciable interest susceptible of protection in the suit.” In the Interest of D.M.H., 516 S.W.2d 785, 787[7] (Mo.App. 1974). Whether a person has a legally pro-tectable interest so as to confer standing is a matter for ad hoc determination by the courts under the given circumstances. Allen v. Coffel, 488 S.W.2d 671, 675[5] (Mo. App.1972), 69 A.L.R.3d 794, citing Stickelber v. Board of Zoning Adjustment, 442 S.W.2d 134, 136[1] (Mo.App.1969). In zoning cases it is generally held that to have standing a person must show that he has a vested property interest that is or will be adversely affected by the existence or enforcement of a zoning restriction. One factor often considered in making this determination in these cases is the proximity of the plaintiff’s property to the site in question. Allen v. Coffel, supra at 675; Stickelber v. Board of Zoning Adjustment, supra at 137[3]. “And it is now well established that an adjoining, confronting or nearby property owner has standing, without further proof of special damage, to assert the invalidity of an ordinance or the right for review of an administrative decision affecting the property in question. [Citations omitted.]” Allen v. Coffel, supra at 675[5]. See generally, 3 Anderson, American Law of Zoning § 21.10, pp. 566-69. In Allen v. Coffel, supra, the court held that plaintiffs, who were not residents of the City of Peculiar, had standing to contest the validity of two Peculiar ordinances rezoning a tract of land in that city where plaintiffs’ property was contiguous to the rezoned property.

Plaintiffs in the case at bar rely on Allen v. Coffel, supra, as well as Kellog v. Joint Council of Women’s Auxiliaries Welfare Ass’n, 265 S.W.2d 374 (Mo.1954); Dahman v. City of Ballwin, 483 S.W.2d 605 (Mo.App.1972); and State ex rel. Housing Authority of St. Louis County v. Wind, 337 S.W.2d 554 (Mo.App.1960) in support of their contention that they have standing to contest the validity of these urban renewal ordinances. In each of these cases the court held that plaintiffs had standing. In Kellog, supra at 375, plaintiffs owned and resided in property in the same block “contiguous to, or on the same side of, or across the street from the property of defendant, or in the adjoining block.” In response to defendant’s argument that plaintiffs lacked standing because they failed to prove their property would be less desirable or less valuable as a result of defendant’s property being used for a home for convalescent and aged women in violation of a city zoning ordinance, the court at 376[1, 2] stated as follows:

“But we think it should not be held that a showing of depreciation of value or of any special pecuniary damage is essential to the maintenance of this action by plaintiffs or that depreciation of value of their property is the only special damage which the plaintiffs herein may suffer. It was shown in evidence that plaintiffs are owners and residents of property in a district zoned for use as ‘single-family’ dwellings. Plaintiffs have an interest in the continuation and observance of the single-family dwelling classification of the zoned district in which they reside and own property, and it would seem they should be entitled to resort to this equitable remedy to enjoin the violation of the zoning legislation and the regulations enacted and promulgated by the zoning authority in invoking the police power with whatever resultant benefit to them or their properties. In our opinion, they are proper party-plaintiffs and may maintain this action to prevent by injunction the violation of the zoning ordinance, by which violation their interest and benefit in some measure may be destroyed.”

In Dahman v. City of Ballwin, supra at 609, the court in dicta stated that “the existence of a corporate boundary line should not deny an adjacent landowner outside the city standing to challenge the validity of a proposed zoning classification, a right granted to residents of the corporate entity.” In Wind, supra, one of two intervenors-appellants owned property across the street and less than 100 feet from defendant’s property for which allegedly illegal building permits had been issued. See also, Howe v. City of St. Louis, 512 S.W.2d 127, 130[1] (Mo.banc 1974) (no standing for plaintiffs challenging antiblockbusting ordinances where plaintiffs merely alleged that they owned real property in the city but did not allege that they owned property in the areas where the restrictions applied or that they would be adversely affected by the ordinances); State ex rel. Algonquin Golf Club v. Lewis, 395 S.W.2d 522, 523-25[2] (Mo.App.1965) (owners of property next door to and across the street from proposed parking lot had right to intervene in suit challenging board of adjustment’s denial of permit to build parking lot).

Defendants argue that these zoning cases are inapplicable as precedent for standing in this case. In Gibson & Perin Co. v. City of Cincinnati, 480 F.2d 936, 941-45[1] (6th Cir.), cert, denied, 414 U.S. 1068, 94 S.Ct. 577, 38 L.Ed.2d 473 (1973), relied on by defendants, plaintiffs, owners of property across a street from an urban renewal project, brought suit challenging the location and design of a completed parking garage. The court held that plaintiffs lacked standing because the federal urban renewal statute did not provide for review of actions of agencies and private developers of urban renewal projects and because plaintiffs had no personal interest or stake in the project, the court noting, at 942, that “under no stretch of the imagination can it be claimed that plaintiffs, who were located outside the Urban Renewal area, were within the zone of interests protected by the statute.” This case was relied on in Rodeway Inns of America, Inc. v. Frank, 541 F.2d 759, 766-67[9, 10] (8th Cir. 1976). This last case was a suit by hotel owners challenging the conversion of the south tower of the Mansion House Center in downtown St. Louis from an apartment building to a hotel. One of plaintiffs’ claims rested on state law that the conversion violated the city ordinance which had approved the redevelopment plan upon which the building had been constructed. The contention was considered by the district court under pendent jurisdiction. There it was held that plaintiffs lacked standing under Missouri law. The Eighth Circuit Court of Appeals, noting that the opinion of the district court on matters of state law is entitled to great weight, found “no clear error in the court’s conclusion and therefore decline[d] to disturb it on appeal.” The court at 766-67 stated: “Appellants cite no cases from Missouri or any other jurisdiction holding that an urban renewal ordinance should be deemed equivalent to zoning ordinances for purposes of determining standing to sue. Gibson & Perm Co. v. City of Cincinnati, 480 F.2d 936 (6th Cir.), cert, denied, 414 U.S. 1068, 94 S.Ct. 577, 38 L.Ed.2d 473 (1973), supports the trial court’s decision that the ordinance in question does not provide for zoning of property and therefore does not confer standing upon adjoining property owners.”

Relying on these two federal cases, defendants here assert that we should not extend the reasoning of the aforementioned Missouri cases, involving challenges to zoning ordinances, to this case involving a challenge to two ordinances dealing with urban redevelopment because of what defendants claim are numerous important differences between the two situations. The only distinction worth discussing is that the zoning statutes specifically provide for public hearings as well as administrative and judicial review for persons “aggrieved” by zoning decisions, §§ 89.050, 89.070, 89.100, and 89.-110 RSMo.1969, while no similar rights of protest and review are contained in Chapter 353 RSMo.1969. According to defendants it is logical to protect the right of public review in zoning cases, because zoning usually requires little capital expenditure, but it is not logical to allow protest and review of actions under Chapter 353 “because the act of redeveloping blighted areas under Chapter 353 anticipates huge outlays of money, investment, time and capital by a private redevelopment corporation, rather than the municipality.”

While it is true that in Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954) the United States Supreme Court held that persons owning property inside a District of Columbia urban renewal project could not challenge the taking of their property on the grounds that their particular property was not run down or blighted, at least three Missouri cases have considered challenges to ordinances enacted pursuant to Chapter 353 RSMo.1969, indicating that specific statutory authority is not a prerequisite to sue to enjoin activities undertaken pursuant to Chapter 353 RSMo. 1969. None of these three cases discuss standing and none are authority for conferring standing on plaintiffs here. But it seems clear, and defendants concede, that persons owning property inside a Chapter 353 redevelopment area have standing to challenge the ordinances declaring the area blighted and approving redevelopment plans for the area. Neither the lack of specific statutory authority for protest and review in Chapter 353, nor the fact that “the act of redeveloping blighted areas under Chapter 353 anticipates huge outlays of money, investment, time and capital by a private redevelopment corporation, rather than the municipality,” convince us that persons owning property nearby but outside a redevelopment area should not have standing to challenge ordinances such as these as long as the normal requirements for standing are met. In view of the fact that persons owning property inside the redevelopment area would have standing to bring such a suit and the fact that nearby property owners would have standing if this were a zoning case, we reject any per se rule that these plaintiffs lack standing. The criteria for standing to be applied in the case at bar, a suit for declaratory and injunctive relief, is whether plaintiffs have a legally protectable interest at stake. Regal-Tinneys Grove Special Road District of Ray County v. Fields, 552 S.W.2d 719, 722[2, 4] (Mo.banc 1977) (declaratory judgment action under Rule 87.02(a) and § 527.020 RSMo.1969); Kellog v. Joint Council of Women’s Auxiliaries Welfare Ass’n, supra, 265 S.W.2d 374, 376-77 (Mo.1954) (suit for injunction); Moseley v. City of Mountain Grove, 524 S.W.2d 444, 446-47[3, 4, 6] (Mo. App.1975) (suit for injunction); Allen v. Coffel, supra, 488 S.W.2d 671, 674[3, 4] (Mo.App.1972) (suit for declaratory judgment and injunctive relief).

Taking plaintiffs’ properly pleaded facts as true, giving the allegations a liberal construction and making reasonable inferences fairly deductible from the facts stated, as we are required to do in this situation, Concerned Parents v. Caruthers-ville School District 18, supra, 548 S.W.2d 554, 558[6] (Mo.banc 1977), we hold that plaintiffs, under the allegations of their petition, do have a legally protectable interest at stake. If the work on the redevelopment project were to stop in the middle of the project due to inadequate financing, the area very close to plaintiffs’ properties could be partially or completely destroyed and could be left in a state of disarray. From plaintiffs’ petition it appears that this would have a sufficiently adverse effect on plaintiffs’ property interests to give plaintiffs standing to challenge the ordinance approving the redevelopment plan. See, Eyerman v. Mercantile Trust Co., 524 S.W.2d 210, 212[1] (Mo.App.1975). Plaintiffs would also have standing to challenge the ordinance declaring the area blighted because such a declaration is one of the prerequisites to the commencement of redevelopment work. The trial court erred in dismissing plaintiffs’ petition on the grounds that the petition failed to allege facts that gave plaintiffs standing. This does not eliminate, however, the necessity of producing evidence at time of trial to support plaintiffs’ position on this issue.

We turn to the issue of whether the petition states a cause of action. Both parties recognize that the scope of judicial review in this case “is limited to whether the legislative determination was arbitrary or was induced by fraud, collusion or bad faith, or whether the City exceeded its powers.” Parking Systems, Inc. v. Kansas City Downtown Redevelopment Corporation, supra, 518 S.W.2d 11, 15[1] (Mo.1974). See also, Allright Missouri, Inc. v. Civic Plaza Redevelopment Corporation, supra, 538 S.W.2d 320, 324[1] (Mo.banc 1976). “The issue of whether a legislative determination of blight is arbitrary turns upon the facts of each case. And, the burden of proving that it is arbitrary is upon the party so charging.” Allright, supra at 324[2, 3]. As stated in Parking Systems, supra at 16, in determining whether this burden has been met “it must be kept in mind that the courts cannot interfere with a discretionary exercise of judgment in determining a condition of blight in a given area any more than they can interfere with a discretionary exercise of judgment in zoning property, and as it has repeatedly been said in zoning eases, ‘Unless it should appear that the conclusion of the City’s legislative body in the respect in issue * * * is clearly arbitrary and unreasonable, we cannot substitute our opinion for that of the City’s * *. If the City’s action * * * is reasonably doubtful or even fairly debatable’ we cannot substitute our opinion for that of the City Council.” See also, Allright, supra at 324. ' See generally, What Constitutes “Blighted Area” Within Urban Renewal and Redevelopment Statutes, 45 A.L.R.3d 1096.

Defendants’ position, with which the trial court agreed, is that plaintiffs’ petition fails to allege any facts which would show that the city’s determination was arbitrary or in excess of its powers and that plaintiffs are simply asking the court to substitute its judgment for that of the board of aider-men. Plaintiffs, on the other hand, contend that their petition does state facts showing that the enactment of the two ordinances in question was arbitrary or in excess of the city’s powers. After examining the petition in detail we have concluded that some parts of the petition do state a claim upon which relief can be granted but other parts are spurious and cannot afford plaintiffs a basis for relief. For purposes of discussion, we divide the subparagraphs of plaintiffs’ petition into two categories. In the first category are the subparagraphs alleging the ordinances are invalid on the grounds that they are inconsistent with sections of the revised city code or that procedural steps required by the revised city code were not followed when the ordinances were enacted. In the second category are all other subpar-agraphs. We first discuss those subpara-graphs which fall into the first category.

Paragraph 8 of the petition sets out the grounds on which plaintiffs claim Ordinance 56791 (which declared the area blighted) is “void, invalid, arbitrary, unreasonable, capricious and unconstitutional.” In subparagraph 8(a) plaintiffs allege that the area declared blighted was never considered by the plan commission subsequent to the introduction of Ordinance 56791 and prior to its passing nor was the bill as introduced accompanied by a determination from the plan commission that blighting and redevelopment of the area was necessary and in the public interest, “as required by Chapter 29 of the Revised Code, City of St. Louis.” Subparagraph 8(i) states that Ordinance 56791 is invalid because it is inconsistent with a “Historic District Enabling Ordinance” and with an ordinance creating the “Central West End Historic District.” Subparagraph 8(j) states: “The properties purportedly declared blighted are not in fact blighted in that it is not ‘. . . impossible and uneconomical for individual owners to independently undertake to remedy such conditions . . . .’ as required by Section 29.010, Revised Code of St. Louis, if such properties are in fact blighted, but, on the contrary, the individual owners of the purportedly blighted properties are persons or corporations of substantial means.”

Paragraph 10 of the petition sets out the grounds on which plaintiffs claim Ordinance 56933 (which approved the redevelopment plan) is “void, invalid, arbitrary, unreasonable and capricious.” Each subpara-graph of paragraph 10 relies on some alleged violation of a section of the revised city code. Subparagraph 10(a) states that the redevelopment plan failed to state which existing buildings are not to be demolished immediately. Subparagraphs 10(b) and 10(c) and 10(d) state that the plan fails to list information regarding residential units and plans for relocation of families who will be displaced by the redevelopment, etc. Subparagraph 10(e) states that the plan fails to state any proposed method of financing.

Plaintiffs cite several cases for the proposition that a municipal ordinance is invalid for failure to follow the procedural prerequisites to its enactment but in all of these cases the procedural prerequisites were set forth in a state statute or city charter. None of the cases deal with the situation presented here, where the procedural or substantive requirements are set forth in a city code, a codification and compilation of city ordinances. The issue then becomes: Under such allegations does the city have the power to enact ordinances in disregard of procedural or substantive requirements set out in earlier ordinances?

A city council is both an administrative and a legislative body. As an administrative body it acts in much the same way as and performs the same function of a board of directors. Arkansas-Missouri Power Corporation v. City oí Kennett, 348 Mo. 1108, 156 S.W.2d 913, 919[12] (banc 1941). In that capacity it may fix the terms and pass upon city contracts. City of Kennett, supra. When acting as a legislative body it may act upon legislation and pass ordinances of a general and permanent character, as opposed to those of a temporary and special nature. If the purpose is to make new law it is generally held to be legislative. But if the proposition is to execute law previously established it is administrative. State ex rel. Whittington v. Strahm, 374 S.W.2d 127,130 (Mo.banc 1964) citing and quoting McQuillan, Municipal Corporations, 3d ed., § 16.55, pp. 254-256; Anderson v. Smith, 377 S.W.2d 554, 557[2] (Mo.App.1964).

The procedural requirements referred to in plaintiffs’ second amended petition are alleged to be required by Chapter 29 of the Revised Code of the City of St. Louis. Some of these, such as the requirement that the plan of redevelopment contain a financing statement, are alleged not to have been complied with. Introduction into the evidence of the pertinent ordinances referred to in the petition as embodied in Chapter 29 of the Revised Code would disclose whether such ordinances are of a general and permanent nature setting out the procedural and substantive requirements contended by plaintiffs and alleged to have been violated by the board of aider-men in passing the second set of ordinances declaring the area blighted and approving the redevelopment plans. Such later ordinances appear to be of an administrative nature, temporary and special in their application. They declare an area blighted and approve a redevelopment plan both of which constitute application of principles and procedures set out and described in general ordinances alleged to be set out in Chapter 29 of the Revised Code. They are the acts of the city board in its capacity of administering the general ordinances on the subject. They may not be construed as repealing, revoking or in any way changing the general ordinances establishing substantive rights and procedures because the board, like the state legislature, is prohibited by Article III, Section 40, (30) of the Constitution of Missouri, from passing any special law for such purposes where a general law is applicable. Mathison v. Public Water Supply District No. 2 of Jackson County, 401 S.W.2d 424, 432[10] (Mo.1966).

If the city passes an ordinance which violates rules or standards laid down by earlier ordinances without specifically repealing the earlier ordinances, the city may also be guilty of acting unreasonably and arbitrarily so that the new ordinance could be declared void. See, Parking Systems, Inc. v. Kansas City Downtown Redevelopment Corporation, supra, 518 S.W.2d 11, 18-19 (Mo.1974) (the court discussed whether a city had complied with an earlier ordinance when it approved a redevelopment plan); Annbar Associates v. West Side Redevelopment Corporation, supra, 397 S.W.2d 635, 654-55[19] (Mo.banc 1965), cert, denied, 385 U.S. 5, 87 S.Ct. 41,17 L.Ed.2d 4 (1966). In Annbar the court refused to interfere with a determination by the city council that a financing statement which was included in a redevelopment plan as required by a city ordinance was in sufficient detail. But unlike Annbar, in paragraph 10 of this petition, plaintiffs here allege that the redevelopment plan approved by the board of aldermen contained no statement of financing contrary to a provision of the city code. Here plaintiffs also plead in paragraph 10 that other items required by the code to be included in proposed redevelopment plans were also absent from this plan when it was approved by the city. Each subparagraph of paragraph 10 states a cause of action on the grounds that the city’s action in approving this redevelopment plan was arbitrary and unreasonable.

Subparagraph 8(j) is somewhat similar in that it alleges that the city declared the area blighted when the area was not in fact blighted as defined by the city code. (Plaintiffs do not allege that the area was not blighted under the definition contained in § 353.020(2) RSMo. 1969.) This may be a ground to declare the ordinance declaring the area blighted void if at trial plaintiffs can meet their heavy burden of showing that the legislative determination that it was “impossible and uneconomical for individual owners to independently undertake to remedy such condition” (alleged to be a requirement of § 29.010, Revised Code of City of St. Louis) was clearly erroneous, arbitrary and unreasonable. Parking Systems, supra at 19[11].

Subparagraph 8(a) alleges the blighting ordinance is invalid because the plan commission did not make a recommendation to the board of aldermen “as required by Chapter 29 of the Revised Code.” (Although the city need not follow the plan commission’s recommendation, Allright, supra at 324[5].) With a complete absence of any financing plan, as compared to an allegedly defective one, if the city code actually requires a recommendation from the plan commission in this situation, the absence of any such recommendation could be proof that a declaration of blight without following this step was arbitrary and unreasonable. Relying on Prudential Building & Loan Association v. Urban Renewal and Community Development Agency of Louisville, 464 S.W.2d 629 (Ky.App.1971), plaintiffs argue that a second finding or recommendation of blight was required with respect to the seven improved properties because these properties were not included in the 1971 ordinance declaring the area blighted. In the Prudential case no such finding was ever made with respect to the newly added property whereas here the plan commission did once recommend that the seven improved properties be included in the blighted area. The only theory upon which the lack of a second recommendation here could be considered arbitrary would have to be based upon requirements of the city code.

The other subparagraph in this category, 8(i), fails to state wherein there is a direct conflict with earlier ordinances alleged to be “inconsistent” with the blighting ordinance. From the petition it appears that these earlier ordinances (Historic District Enabling Ordinance and Development Plan for Central West End Historic District) are merely general declarations of intent or policy with respect to the area in question. The city is free to change its mind concerning this area and to act inconsistently with previous policy declarations. Inconsistency with such ordinances is not equivalent to a case such as where a governmental body permits a change in the zoning of property contrary to a previously adopted comprehensive plan, see, Plaas v. Lehr, 538 S.W.2d 919, 921[1] (Mo.App.1976) (one difference being that there is a statutory mandate to act “in accordance with a comprehensive plan.” § 64.090(1), Laws 1974). This subparagraph does not substantiate the charge that the city’s action was arbitrary and unreasonable and it does not state a cause of action.

In the second category of sub-paragraphs are all the other subparagraphs of paragraph 8. None of these subpara-graphs state a cause of action. Subpara-graph 8(b) alleges that the improved properties were not in fact blighted, not because they were not blighted under the statutory definition, § 353.020(2) RSMo.1969, but because these properties “are well maintained properties in excellent condition with outstanding architectural and esthetic features.” But “an area may properly be determined to be blighted even though it may contain some vacant land or structures which are not themselves offensive.” Parking Systems, supra at 15[3], And an area may be found to be blighted even if it includes buildings or improvements which are not in themselves blighted if their inclusion “is deemed necessary for the effective clearance, replanning, reconstruction or rehabilitation of the area of which such buildings, improvements or real property form a part.” § 353.020(1) RSMo.1969.

Subparagraph 8(c) alleges that declaring the improved properties blighted “substantially interferes with and has substantially reduced the value of said [plaintiffs’] properties because of the proximity of plaintiffs’ properties to those at 21-65 Maryland Plaza and because of the similarity of the character, condition and style of plaintiffs’ properties to those .declared blighted and thereby constitutes a taking of plaintiffs’ properties without due process of law in violation of plaintiffs’ right, as guaranteed by Article I, Section 10, Missouri Constitution.” Subparagraph 8(d) alleges a deprivation of property without due process of law because “various proposed redevelopment plans would require substantial changes in parking and traffic patterns.” Subparagraph 8(f) alleges a “taking of plaintiffs’ properties without due process of law” because “the purported blighting would substantially change and destroy the existing residential character of the surrounding neighborhood by substantially changing traffic patterns and flow, by increasing noise, by increasing lighting and by destroying the distinctive character of the residences at 21-65 Maryland Plaza . ” None of these allegations show a deprivation of any essential attribute of private property without due process. See, State ex rel. Jackson County v. Public Service Commission, 532 S.W.2d 20, 31-32[9] (Mo.banc 1975). Furthermore, even if plaintiffs were being deprived of some property right, the petition fails to allege which aspect of due process was violated when the city deprived them of their property. Normally due process only requires notice and hearing but the petition does not claim any defect in this regard. These sub-paragraphs still fail to show any taking or damaging of plaintiffs’ property which would entitle them to compensation under Article I, Section 26 of the Missouri Constitution. See, State ex rel. State Highway Commission v. Galeener, 402 S.W.2d 336, 340[5] (Mo.1966); Behlman v. City of Florissant, 548 S.W.2d 619 (Mo.App.1977).

Subparagraphs 8(g and h) allege that the designation of the seven improved properties as blighted is arbitrary and capricious because these properties are residential and “there is presently an inadequate supply of such residential structures in the area declared blighted and the area surrounding the allegedly blighted area, whereas, on the other hand, there is a surplus of commercial property as evidenced by several vacant commercial sites immediately across the street from 21-65 Maryland Plaza”; further, that any change from residential to commercial would be inconsistent with two plans, at least one of which was developed by the plan commission; and that “a primary purpose is to accomplish a rezoning.” The allegations, although not entirely clear, would seem to infer that the blighting ordinance was being used to change the zoning of the seven properties from residential to commercial. If this be a correct interpretation of the allegations, the ordinance, if it was so framed, would obviously be void as an attempt to rezone the area without the following the procedures set out in Chapter 89 RSMo.1969 and the general ordinances of the city passed under authority of the zoning and planning statutes. If it is meant that the ordinance conflicts with the plan of the plan commission, the action of the board of aldermen is a discretionary legislative judgment reached after a consideration of all factors including the plan. Allright, supra at 324[3, 4]. The board of aldermen is free to act inconsistently with plans developed by the plan commission, just as it is free to act inconsistently with the plan commission’s recommendation as to whether an area is blighted. Allright, supra at 324[5].

In subparagraph 8(e) plaintiffs allege that the designation of the seven improved properties as blighted “is arbitrary and capricious in that its purpose is not to redevelop an area in fact blighted but is rather to give tax and other improper advantages to a private real estate developer or developers . . . ” But motives of a legislative body will generally not be inquired into by the courts. State ex rel. Strait v. Brooks, 220 Mo.App. 708, 293 S.W. 471, 475[8] (1927). The granting of tax incentives to developers, furthermore, is authorized by § 353.110 RSMo.1969.

Since plaintiffs’ petition in part does state a cause of action, the trial court’s order dismissing the petition cannot be sustained on this ground.

The judgment is reversed and the case remanded.

GUNN, P. J., and KELLY, J., concur.

      . Article I, Section 10 of the Missouri Constitution states: “That no person shall be deprived of life, liberty or property without due process of law.” Article I, Section 26, not mentioned in the petition, states: “That private property shall not be taken or damaged for public use without just compensation.”

      . The statute referred to is 42 U.S.C. § 1450, et seq.

      . The decision does not hold that these persons lacked standing.

      . Allright Missouri, Inc. v. Civic Plaza Redevelopment Corporation, 538 S.W.2d 320 (Mo.banc 1976); Annbar Associates v. West Side Redevelopment Corporation, 397 S.W.2d 635 (Mo. banc 1965), cert, denied, 385 U.S. 5, 87 S.Ct. 41, 17 L.Ed.2d 4 (1966); Parking Systems, Inc. v. Kansas City Downtown Redevelopment Corporation, 518 S.W.2d 11 (Mo.1974).

      . E. g., American Tobacco Co. v. Missouri Pac. Ry. Co., 247 Mo. 374, 157 S.W. 502 (banc 1912); Baum v. City of St. Louis, 343 Mo. 738, 123 S.W.2d 48 (1938); State ex rel. Freeze v.

        City of Cape Girardeau, 523 S.W.2d 123 (Mo. App.1975); Hatfield v. Meers, 402 S.W.2d 35 (Mo.App.1966).

      . Courts generally do not take judicial notice of ordinances. Their existence and content must be proven in evidence like any other fact. Ra-macciotti v. Zinn, 550 S.W.2d 217, 223 [2] (Mo. App.1977); Purdy v. Foreman, 547 S.W.2d 889, 891 [3] (Mo.App.1977); State ex rei. Freeze v. City of Cape Girardeau, supra, 523 S.W.2d 123, 127[4] (Mo.App.1975).

      . See footnote 1.