author: DIXON, Judge.

text:
    In re J.D.K., (a male minor).
    No. WD35099.
    Missouri Court of Appeals, Western District.
    Dec. 11, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.
    Application to Transfer Denied April 2, 1985.
    Brad Grill, Kansas City, for appellant.
    Douglas B. Eskridge, Kansas City, for respondent.
    Robert F. Deis, Platte City, Guardian Ad Litem.
    Before DIXON, J., Presiding and SHAN-GLER and SOMERVILLE, JJ.
   DIXON, Judge.

The natural mother appeals the trial court’s order terminating her parental rights. The issue is the sufficiency of the evidence.

For comprehension of the facts necessary for evaluating the sole issue, a chronology of the living arrangements and location of the child must be understood. The child was born in March, 1980. He and his mother, Patty, lived with Mr. and Mrs. Roy Humes in Weston, Missouri, until mid-September, 1980. In September, because of arguments with the Humes and their relatives, Patty and her son left the Humes' home and moved into an apartment in Weston. The child stayed with Patty until October 24, 1980, when he was first placed in foster care where he remained until October 23, 1981. Patty stayed in Mrs. Paula Schnell’s home in Beloit, Kansas, from November 12, 1980, to January 25, 1981. Although the record is far from clear, it appears that Patty returned to the Humes’ home in January, 1981, and remained there for five months. She then moved in with Linda and Tony Allison in Leavenworth, Kansas, where she remained until mid-February, 1982, except for three or four days in January, 1982, when she again stayed with the Schnells in Beloit. The child was returned to Patty’s care in October, 1981, and stayed with her in the Allison home until he was again placed in foster care in mid-February, 1982. Since then, he has not been in Patty’s care.

Patty again stayed in Weston with the Humes from February 18, 1982, to March 15,1982. She then stayed with Pat Crooks in Weston until March 29, 1982, when she moved into an apartment in Leavenworth. On May 26, 1982, Patty married Dennis Beatty, but they separated on June 15, 1982. In June, while still in Leavenworth, Patty moved in with Wesley Sutton, the child’s father, by whom she subsequently became pregnant and had a second child in 1983. In July, 1982, Patty and Wesley moved to Weston but split up soon after and Patty then moved in with Kathy Rai-ney, a friend from Leavenworth, with whom she stayed until October, 1982. The record does not reflect Patty’s whereabouts from October, 1982, to January, 1983, and a social worker testified that, during that period, her office lost track of Patty. From February, 1983, to the time of trial, Patty again lived with the Allisons in Leavenworth.

Karoline Zerger, a counselor who evaluated Patty, stated Patty had a demonstrated inability to protect her son and to provide him with a safe and secure environment. Mrs. Humes, with whom Patty and her son stayed for his first six months, stated Patty did not take good care of him; that she did not change his diapers nor feed him on time. She also stated that Patty often spanked him on his lower back and bottom to make him stop crying. Patty admitted to Mrs. Humes that she had beaten her son to the point of bruises. After leaving the Humes’ home, on at least one occasion the child was left alone and unattended in the apartment for one hour. Mrs. Humes said Patty felt put-upon for having to raise a child. She did not believe Patty was capable of raising her son, even if she were in a stable environment.

Patty has a history of lack of credibility. While staying in the Humes’ home, she lied about where she went when she left the home, on occasion playing truant from work. While with the Schnells she lied about her father’s being ill and requiring her presence at the hospital. Patty told Mrs. Humes, Mrs. Schnell, and Tamara Hatheway, a social worker, that Linda Allison, with whom she and her son lived in late 1981 and early 1982, had beaten her up and physically abused her son by burning his face with a cigarette, hitting him, tieing his hands behind his back and then putting him in a cold shower, and possibly, breaking his arm. At trial, she said those prior statements were lies but reiterated that she was, at times, afraid of Linda Allison.

When the child was placed in foster care for the second time in 1982, the service agreement into which Patty entered provided for monthly visits with her son. During the last six months of 1982, Patty and the child had no contact. The record reflects the child’s drastic behavioral changes in and around his mother’s visits. Judith Woods, the child’s foster mother, stated that when the child was placed with her for foster care, he was terrified, did not cry aloud, but whined all through the night. When picked up, he slapped adults in the face and threw his head into theirs. When his diaper was changed, he made sexually explicit gestures, accompanied by the request, “do butt”. He also was terrified of the shower and for months refused to approach it. Mrs. Woods testified that, in time, the little boy’s behavior became more moderate but, after each visit with his mother, those behavior patterns returned and only subsided after at least one week. During the emotional and tense visits, the child one time spit at his mother and she spit back, he became frightened when playing with her, and he usually acted aloof toward her unless she had presents for him. After the visits he also soiled his pants, regressing from his ordinary toilet habits. He screamed in his sleep, vomited repeatedly although he had no fever, and attacked the Woods’ family dogs. In the six months when Patty did not contact her son, his behavior improved drastically but when she began to visit him in 1983, he again exhibited the same retrogressive behavior patterns. The background of the second foster care placement is as follows:

In December, 1981, because of an anonymous tip about the child’s condition and the treatment he received, two social workers visited the Allison home, where Patty and the child were staying. They noted a cigarette burn on the child’s face, a broken arm that allegedly had occurred when Linda Allison’s niece dropped him, and bruises on his face, legs, and other parts of his body. One of the social workers stated, "... I had some, you know, concerns.” These were Kansas social workers requested by Missouri authorities to undertake courtesy supervision for the Missouri court. Patty later called the other social worker and stated she was scared of Linda because Linda had beaten her and had mistreated her son. She also told Jean McNearney that she suspected Linda had broken her son’s arm. Because the Missouri authorities had not heard further from the Kansas workers, the Missouri social workers contacted Kansas and when it was discovered that the mother and child had “disappeared” the second time, a Missouri court order was entered to terminate the mother’s custody. The Kansas court and officers assisted the Missouri officials in regaining custody.

The child was placed in foster care with a Mrs. Woods on February 18, 1982. When he arrived at her house, his color was poor (grey), there was a burn mark above his left eye, he was skinny, bruised across his back, bruised and pinched on his face and he had smashed toenails. Dr. Jay Kimball, who examined the little boy on February 19, 1982, found multiple bruises over the child’s body, a six-month deficiency in immunizations, poor oral hygiene, a blood-caked detached toenail and a flattened growth curve, which he believed indicated long-term nutritional deprivation. Although Patty stated her son’s size was due to colds he had had in the fall, Dr. Kimball stated routine viruses and childhood illnesses would not cause the extreme flattening of the growth curve. He also found no evidence of illness that would cause such a flattening. The dramatic increase in the child’s growth curve just one month later suggested his nutritional status was greatly improved. Mrs. Woods stated that as soon as the child arrived in her home he began to eat ravenously but Dr. Kimball said it took over six months to make up ground lost due to the nutritional deprivation.

The trial court entered its decree in the form of extensive findings of fact and conclusions of law. The trial court found that there was clear and convincing evidence that the mother had failed to provide, on a continuing basis, for the mental, physical, and emotional well-being of the child; had failed to support the child; had failed to comply with an appropriate plan approved by the court, and further found that the mother had failed to rectify the conditions causing the transfer of custody, specifically, the mother’s concern that she would harm the child and her confessed inability to care for the child. In a separate finding, the court found clear and convincing evidence that the mother had knowingly permitted others to physically and mentally injure the juvenile.

The parties agree that the standard of review is that of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), and that the quantum of proof requires clear and convincing evidence.

On the issue of neglect, the mother argues factually that there was evidence she had visited with the child on several occasions. She further urges that her employment background and emotional disturbance excuse her failure to comply with the “plan” approved by the court.

As to the ground that the mother had failed, on a continuing basis, to rectify the conditions that caused the change of custody, the assertion is made that, if given more time, the mother could comply with the plan and properly care for the child.

In a similar vein, the mother attacks the trial court’s finding that she permitted abuse by others, by pointing to evidence that the first complaint of abuse was determined to be unfounded upon an investigation by the Kansas social workers assigned to the case.

In making these assertions of error, the mother, of course, relies upon the evidence most favorable to her position, as scanty as it is in this record. The real thrust of the argument is directed to the burden of proof. Because there are fragments of evidence that support one or more of the mother’s claims, she asserts that Matter of O’Brien, 600 S.W.2d 695 (Mo.App.1980), requires reversal. In citing O’Brien, she relies primarily on its citation, at page 697, of In Re Sedillo, 84 N.M. 10, 498 P.2d 1353, (1972). Sedillo stated the test of clear and convincing evidence in the following terms:

For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.

498 P.2d at 1355.

That quotation, as it appears in O’Brien, was cited in Matter of T.C.M., 651 S.W.2d 525 (Mo.App.1983), as an inner quote, without citing Sedillo. The O’Brien court held the evidence in that case satisfied neither the Sedillo test nor the test enunciated by our Supreme Court in Grissum v. Reesman, 505 S.W.2d 81, 86 (Mo.1974). The mother now argues that O’Brien requires that some unusual or extraordinary evidence instantly tilt the scales to provide clear and convincing evidence. The mother’s argument is predicated upon the language of Sedillo and particularly the word “instantly.” In effect, she argues that the Sedillo test is the standard by which Missouri courts are to judge clear and convincing evidence.

The Sedillo articulation of the standard of proof is evocative of some cataclysmic event or dramatic incident present in the evidence, which instantly persuades the trier of the fact. This is what the mother seizes upon and asserts is not present in the instant case. It is not helpful and may be positively mischievous, when the record demonstrates a gradual but progressive attrition of parental duty and an accretion of harm to the child in small but significant ways over a period of time, to require some such evidence to find the evidence to be clear and convincing.

It accomplishes little to attempt redefinitions of the burden of proof. It may be more helpful to consider the reasons for requiring that the evidence be clear and convincing, as opposed to the conventional preponderance of the evidence test. In Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the court held that due process required that the proof to sustain termination of parental rights be above the level denoted by the standard of preponderance of the evidence and meet at least the burden of proof of clear and convincing evidence. In its analysis, the court viewed the preponderance of the evidence test as one where the risk of error by the fact finder was borne equally by the parties. The beyond a reasonable doubt standard of the criminal law was said to virtually eliminate fact finding error against defendants and to make all or almost all of the risk of error fall upon the state. The court then concluded that the beyond reasonable doubt standard should be rejected and the intermediate standard of clear and convincing evidence be adopted as the threshold requirement of due process in such actions. The court concluded that such a standard “adequately conveys to the fact finder the level of subjective certainty about his factual conclusions necessary to satisfy due process.” Id. at 769, 102 S.Ct. at 1403.

Grissum v. Reesman states the test as meaning “the court should be clearly convinced of the affirmative of the proposition to be proved.” 505 S.W.2d at 86. The present case is such a situation. There is no event which instantly tilts the scales. The whole record demonstrates the mother’s continuing inability to properly care for the child. It contains evidence permitting the inference that the child was abused on a continuing basis by others. The inescapable inference from the record is that the mother is unlikely to be able to rectify the conditions and neglect that it shows.

This record satisfies the Grissum v. Reesman test of affording clear and convincing proof of the affirmative of the proposition to be proved.

The decree terminating parental rights is affirmed.

All concur.


source: Caselaw Access Project

author: SHANGLER, Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Successor to the State Highway Commission of Missouri, Appellant, v. Glenn E. McCANN, et al. Exceptions of Glenn E. McCann, et al., Respondents.
    No. WD 35,227.
    Missouri Court of Appeals, Western District.
    Dec. 11, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.
    Application to Transfer Denied April 2, 1985.

      Bruce A. Ring, Chief Counsel, Kansas City, Earl H. Schrader, Jr., Kansas City, Leland F. Dempsey, Asst. Gen. Counsel, Missouri Highway & Transp. Com’n, for appellant.
    James W. Farley, Becky Ingrum Dolph, Farley, for respondents.
    Before DIXON, P.J., and SHANGLER and SOMERVILLE, JJ.
   SHANGLER, Judge.

The Missouri Highway and Transportation Commission commenced a series of condemnation actions to take private lands for the construction of Interstate 435 in Platte County around the circumference of Kansas City to facilitate interstate traffic flow as well as access to that environ. The condemnation actions began in the circuit court of Platte County in early 1974 and continued into 1975. The commissioners duly returned reports and thereafter the Highway Commission as well as all the landowners excepted to the awards. These separate litigations [fifteen in number] remained altogether quiescent until year 1983 when the Highway Commission moved for trial settings — on March 8,1983, as to one aggregate of the cases, and on May 18, 1983, as to the other. The landowners moved to dismiss the exceptions for want of prosecution; and after hearing and rehearing, the court entered judgments of dismissal as to all fifteen cases.

The Highway Commission contends on appeal that (1) as an agent of the sovereign it is immune from a termination of its rights due to delay or passage of time, and hence from judgment of dismissal, and (2) that the delay in the prosecution of the exceptions was, in any case, excusable.

The motions to dismiss were heard separately, but adjudicated on the same evidence:

In 1970 the Congress authorized additional interstate highway construction, and 1-435 was an adjunct of that project. That route was not a part of the original interstate system design, so that it fell to the Highway Commission to establish a location for the way. The purpose of that improvement was not only to facilitate interstate traffic but to provide vehicular access to and around Kansas City. A segment of 1-435 was designated to run through Platte County and to traverse incorporated [Kansas City] and unincorporated areas of that locale. That region was then for the most part agricultural and so without the network of service and access roads usual to developed areas. At this same time, however, the area was in transformation: the recent completion of the Kansas City International Airport was a stimulus for market speculation of land located within a ten-mile perimeter. As a result, land prices within that ambit were at an average of $5200 per acre in 1974, and some choice locations yielded as much as $12,000 per acre. The expected development did not come to pass, however, so that the average price per acre plummeted to $1350 by 1983.

It was against this scene that the Highway Commission commenced design for the 1-435 installation. The witness Satterlee, district engineer for Missouri, testified that the basic information from which the commission adduced its traffic projections was the 1970 census. That source indicated “substantial growth in the vicinity of the airport.” In addition to the census information, the Highway Commission depended on its own system of traffic projection to design the location of the route, the number of lanes, interchange locations and cross-streets. The preliminary plans were submitted to a “design public hearing,” as prelude to the development of detailed plans for the entire 1-435 project. Those plans were filed with the condemnation petitions, and acquisition of the right-of-way commenced. A segment of the addition to the 1-435 system impinged on Kansas City and was designed in consultation with that municipality. The plan contemplated a reticule of access roads, cross-roads and cross-street structures as appurtenances of the highway, and an urban agreement was concluded between the State and Kansas City to that end. The construction was to be installed conformably to the master plan conceived by the municipality for that area of Platte County.

The condemnation petitions were all filed by the end of March, 1975. A glimmer of doubt as to the integrity of the plans for the highway occurred to the Highway Commission as early as 1974, even while these expropriations were still under way. Commission studies confirmed that the oil embargo of that year had reduced the number of vehicle miles of travel in the vicinity of the proposed improvements. The intimation of a continued highway disuse was confirmed in 1979 when the Commission determined another pattern of decreased vehicle miles traveled, this time due to increased fuel prices. The Commission determined to reevaluate the continued efficacy of the plans for the 1-435 project, but decided to await the 1980 Census for that purpose — data not available until 1981. The Commission commenced the redesign in earnest in 1981, and concluded the work in February of 1983. The district engineer Satterlee attributed the need to redesign as much to the failure of Kansas City to disclose its plans for the access and other appurtenant roads, as to the permanently diminished traffic use. In 1981, with the 1980 Census data in hand, the Commission began the redesign. In February of 1982, Kansas City made known its access plans, and in February of 1983, the Commission completed a revised design for the 1-435 project. To accomplish the redesign, the Commission undertook to reappraise the affected properties.

Then on March 8, 1983, the Highway Commission moved for trial dates as to six of the exceptions, and on May 18, 1983, moved for trial dates as to the other nine exceptions. The evidence already recounted was adduced, and the court dismissed the fifteen exceptions for want of prosecution. The record discloses that these separate actions were dormant for periods which ranged from six years and eight months to eight years and six months. There was no activity of any kind in any of these cases from the report of the commissioners and payment of the awards to the motions for trial dates. In that interim, however, numerous other tracts taken in those condemnation proceedings were concluded by settlement — before and after trial settings — and by jury verdicts.

The appeal contends that the state as sovereign enjoys immunity from a termination of any right or interest from mere delay — whether from laches, general limitations, prescription, adverse user,, or negligence — so that the judgments of dismissal for want of diligent prosecution were unlawful. To sustain contention, the Highway Commission advances numerous aphorisms: that laches does not apply against the public right [State ex rel. Taylor v. Blair, 357 Mo. 586, 210 S.W.2d 1 (banc 1948)], that statutes of limitation do not affect the sovereign unless made expressly applicable to the State [State ex rel. Robb v. Poelker, 515 S.W.2d 577 (Mo. banc 1974) ], and that a judgment may not rest upon the negligent lapse of the sovereign without its consent [Bartley v. Special School District of St. Louis County, 649 S.W.2d 864 (Mo. banc 1983) ].

These principles appertain to litigants inter sese, not to courts. They ensure that as between suitors, the public right not go by lapse of time or default. The judgments of dismissal for want of diligent prosecution stand on a different ground. They were not exercises by the court in favor of any party, but vindications of its own process. It is a power which inheres in the quintessential function of a court: to administer justice. The power of a court “ ‘to do all things that are reasonably necessary for the administration of justice’ — in order that it may preserve its existence and function as a court [are] powers [which] exist and inhere merely because it is a court and irrespective of legislative or constitutional grant.” State ex rel. Gentry v. Becker, 174 S.W.2d 181, 183[1] (Mo.1943). Thus, the duty of a court to preserve the integrity of its process antecedes legislative or even constitutional grant and so — contrary to contention — depends on neither. Loftus v. Lee, 308 S.W.2d 654, 660[6] (Mo.1958); 20 Am.Jur.2d Courts § 79 (1965). In cognate terms, an attempt by the legislative department to impose an undue delay or other. burden upon the administration of justice [as a peremptory entitlement to a continuance in a judicial proceeding by the fact that the party or attorney is a member of the general assembly then in session] encroaches upon the inherent function of the judicial department to administer justice, and so is unconstitutional. Kyger v. Koerper, 355 Mo. 772, 207 S.W.2d 46, 49[5,6] (banc 1947). The nondelegable duty of the court to administer justice evenly as to all parties is embodied in our state constitution [Article I, § 14]: “That the courts of justice shall be open to every person ... and that right and justice shall be administered without sale, denial or delay.” Kyger v. Koerper, supra, 207 S.W.2d l.c. 49[5, 6]; Loftus v. Lee, supra, l.c.660. The power to prescribe rules of procedure to facilitate the administration of justice also inheres in the court function. In re Sparrow, 338 Mo. 203, 90 S.W.2d 401, 403[4] (banc 1935); 20 Am.Jur.2d, Courts § 82 (1965). That power [also embodied in our constitution— Article V, § 5], when exercised to dismiss a pendent cause of action for neglect to prosecute, prevents an abuse of process, and so subserves the essential duty of a court to administer justice. State ex rel. Missouri Highway and Transportation Commission v. Kersey, 663 S.W.2d 364, 366[1] (Mo.App.1983).

The diffuse and lumbered Highway Commission arguments reduce to the contention that absent a rule of court or statute expressly applicable to the sovereign, the dismissals for failure to prosecute the exceptions were without authority of law. Our discussion already given dispatches that contention: a court has the duty to try fairly and without undue delay the causes presented for adjudication, and the commensurate power to regulate a party from an obstruction of that process. Kyger v. Koerper, supra, 207 S.W.2d l.c. 49[5, 6]; Loftus v. Lee, supra l.c. 660 [4-6]. Taken on its own terms, the argument states a tautology. The dismissals for failure to prosecute were entered under Rule 67.02 — a provision which indeed does not, in terms, run against the State. If, however, as the Highway Commission argument goes, a rule of court may indeed bind the sovereign to a dismissal of its cause of action where the rule expresses such an application, then, a rule although promulgated without such a specific reference, but interpreted by the court to that effect serves the same end. That is so because a court is the best judge of its own rules. State ex rel. State Farm Mutual Auto Ins. Co. v. Keet, 601 S.W.2d 669, 671[4] (Mo.App.1980). The courts have construed the involuntary dismissal proviso for failure to prosecute [Rule 67.02] to apply to the sovereign by reiterated decisions. State ex rel. State Highway Commission v. Manley, 549 S.W.2d 533 (Mo.App.1977); State ex rel. Missouri Highway and Transportation Commission v. Kersey, 663 S.W.2d 364 (Mo.App.1983). And, indeed, it is an interpretation of rule to which the sovereign has acceded without qualm or cavil [see State ex rel. Missouri Highway and Transportation Commission v. Kersey, supra, l.c. 366[1] — no doubt, because the power of a court to protect its essential ability to function is self-evident as well as rooted. State ex rel. Gentry v. Becker, supra, l.c. 183[1—2]].

The medley of maximus and citations the Highway Commission offers simply are beside the point. The immunity of a sovereign from suit without consent for damages for negligence [Bartley v. Special School District, 649 S.W.2d 864 (Mo. banc 1983)] or from other tort (State ex rel. Missouri Division of Family Services v. Moore, 657 S.W.2d 32 (Mo.App.1983) ], or the immunity from a court rule for costs of an action — unless by authority of statute —[Nicolai v. State, 622 S.W.2d 764 (Mo.App.1981) ], or the inapplicability of laches to prevent the sovereign from suit [State ex rel. Taylor v. Blair, supra], or the numerous other analogies the Highway Commission tenders, all rest on entirely different principles of governmental prerogative. They are not valid to supervene the power of a court to preserve itself — whether by order (State ex rel. Becker v. Gentry, supra, l.c. 183[1—2]; Loftus v. Lee, supra, l.c. 660[6] — or by rule In re Sparrow, supra, 90 S.W.2d l.c. 403[4]]. The analogy the Highway Commission draws from these 'and other decisions: that the dismissals for the negligent delay in prosecution of these exceptions amounted to judgments for tort damages against the sovereign without its consent simply does not follow. The motions of the landowners under the rule, and the judgments of the court, do not amount to separate actions against the State, nor did they seek damages. They were dévices to terminate, not to determine, litigation. Their proper adjudication rested not on consent, but on a concern for its own processes wisely exercised by the court. State ex rel. Missouri Highway & Transportation Commission v. Kersey, supra, l.c. 366[1].

The Highway Commission contends nevertheless that the delay to prosecute the exceptions was justified, and hence the dismissals were improper. It argues that the only issue for determination — the “after-taking valuation” was impossible until February of 1983, when the Commission engineers completed the revised design for the 1-435 project. That redesign, argues the Commission, was made necessary by the failure of Kansas City to perform under the 1973 urban agreement with the State to provide access roads and other appurtenances to the 1-435 construction. It was after the redesign for the first time, the argument goes, that the severance damage for the affected land was ascertainable. It was about then also that the Commission was in a position to employ appraisers for reassessment, and true determination, of the damages incurred by the severances.

The power of a court to dismiss an action for want of diligent prosecution, of course, must be exercised with a sound discretion. The decision to dismiss, however, will not be disturbed unless the discretion was abused. State ex rel. State Highway Commission v. Graeler, 495 S.W.2d 741, 743[1] (Mo.App.1973). The burden to prove that discretion was abused rests on the party who challenges the action. State ex rel. Missouri Highway and Transportation Commission v. Boise Cascade Corporation, 655 S.W.2d 68, 69[1, 2] (Mo.App.1983). Discretion is abused when the decision to dismiss is so arbitrary and unreasonable as to demonstrate a lack of careful consideration and shock the sense of justice. State ex rel. Missouri Highway and Transportation Commission v. Kersey, supra, l.c. 368[5]. To come to decision to dismiss for want of prosecution, the trial court may consider not only the length of delay, but attendant circumstances. A fair test is whether the party had reasonable opportunity to bring the exceptions to trial. State ex rel. State Highway Commission v. Milnes, 573 S.W.2d 727, 728[1, 2] (Mo.App.1978).

The argument of the Highway Commission amounts to the contention that there was no reasonable opportunity to bring the exceptions to trial before 1983: that the condemnation petitions and appraisals were premised on the 1973 master plan for 1-435 and access roads, and that the commissioners assessed damages on the basis of those plans. The failure of Kansas City to perform under the master plan — the argument continues — rendered proceedings premised on them “moot and void,” and hence the Highway Commission was put to the necessity of a redesign finally made possible by the disclosure of its access plans by Kansas City in 1981 and completed in 1983.

The argument, however valid to justify the protracted nonaction to prosecute the exceptions, does not rest on fact. The Highway Commission evidence itself, given by engineer Satterlee, acknowledges that the contract dispute with the city was not the only reason which prompted the redesign of segments of the interstate. There was reason to believe, even as the condemnations were in progress during 1974 and 1975, that the traffic patterns in the area— as the result of the oil embargo and other circumstances — were in the process of a permanently diminished use. The Highway Commission made the deliberate choice to defer further consideration for a redesign until the 1980 Census became available. Hence, as a logical concomitant, the prosecutions of these exceptions were also deferred. The Highway Commission evidence itself also contradicts the argument on appeal that the wait for the redesign was an essential precondition for the trial of the exceptions, since there was no evidence that the redesign actually affected any of the tracts involved — that is, that as to them any modes of access or other appurtenances were in any way different from the original design. Engineer Satter-lee conceded, moreover, he could not say that any of the proposed streets under the original 1973 contract had anything at all to do with the lands in suit. The record also allows reason to doubt that any appraisals, other than those for the original takings, were ever undertaken — so that the contention that the delay to prosecute the exceptions were justified by that and other necessity was found against the Highway Commission on ample reason. The record discloses also that in this interim the Highway Commission contends it was not possible to determine the question of just compensation, numerous exceptions as to other tracts involved in the project were terminated by settlement or by jury trial.

On this record, we may not say that the dismissals were an abuse of discretion. Once the awards of the commissioners were paid into the registry of the court, the only issue for the jury was assessment of damages. State ex rel. State Highway Commission v. Harris, 417 S.W.2d 29, 31[1—6] (Mo.App.1967); Rule 86.08. It was the responsibility of the Highway Commission to prosecute its exceptions with reasonable diligence. State ex rel. Highway Commission v. Milnes, supra, l.c. 728[5]. The landowners, although exceptors also, had no responsibility for any such initiative. City of Jefferson v. Capital City Oil Company, 286 S.W.2d 65, 69[4] (Mo.App.1956).

Contrary to contention, then, the joinder of issue — and hence posture for trial — did not depend upon a preliminary motion to the court. No formal pleading, other than the exception, is required of a landowner to pose the case for a trial by jury. State ex rel. State Highway Commission v. Ellis, 382 S.W.2d 225, 232[6,7] (Mo.App.1964). The duty of the condemnor to prosecute the exceptions was not qualified by any affirmative act of the landowner, other than the assertion of the exception itself. Nor were the landowners obliged to prove actual injury from the delay or that the condemnor gained a particular advantage. State ex rel. Missouri Highway & Transportation Commission v. Kersey, supra, l.c. 367[2, 3], The test is, rather, whether the exceptor [here the Highway Commission] had reasonable opportunity to bring the exceptions to trial. State ex rel. Milnes, supra, l.c. 728. The exceptions dismissed by the trial court languished, altogether in stasis, for a span of time from six years and eight months to eight years and six months. These lapses were unreasonable delays, and without justified explanation.

Our practice allows a condemnor, even after the commissioners have reported, to amend the petition to correct errors, misdescriptions, to reduce the extent of the taking, to grant additional rights to the landowner, or simply to avoid an unjust enrichment. State ex rel. State Highway Commission v. Dunard, 485 S.W.2d 657, 660[3] (Mo.App.1972); State ex rel. Morton v. Allison, 365 S.W.2d 563, 566[3, 5] (Mo. banc 1963); State ex rel. State Highway Commission v. Wright, 312 S.W.2d 70, 73[2] (Mo.1958). To deny the condemnor an amendment for such purpose can constitute an abuse of discretion. Joe D. Esther, Inc., 579 S.W.2d 155, 157[2] (Mo.App.1979); Jackson County v. Hall, 558 S.W.2d 791, 793[1] (Mo.App.1977). A condemnor may not amend after the commissioners have reported, however, to add lands, or otherwise change the issues substantially, or to prejudice the rights of the landowner. State ex rel. Morton v. Allison, supra, l.c. 565[3,4]; City of Blue Springs, Missouri v. Central Development Association, 684 S.W.2d 44 (1984).

The Highway Commission does not argue that the trial court refused a tender to amend the interstate design. No such formal request was ever presented, and none refused. The Highway Commission merely argues a hypothetical: that the failure of the city to perform under the agreed master plan rendered the original appraisals as evidence obsolete, so that necessity dictated a redesign, reappraisal, and a delay in the prosecutions commensurate with that necessity. On this hypothesis, kept tacit from the landowners and the court until after the fact, the condemnor awaited the next Census, the redesign of a portion of the project, and reappraisals — and the lapse of from some seven to eight and one-half years — before any overture to prosecute the actions. Even if this self-motivated course of action were otherwise tolerable on principle, no evidence demonstrates that any of the tracts in dispute were affected by the redesign. The record suggests, rather, that the delay was prompted not by the necessity to gamer trial evidence to meet a new issue, but to reap the windfall of a suddenly depressed land market.

The delays in the prosecution of the exceptions were unreasonable and without valid excuse. In City of Jefferson v. Capital City Oil Co., 286 S.W.2d 65 (Mo.App.1956), a lapse of five years and four months was sufficient to sustain dismissal for want of diligent prosecution. In State ex rel. State Highway Commission v. Manley, 549 S.W.2d 533 (Mo.App.1977), the failure of the condemnor to prosecute the exceptions for ten years warranted dismissal. In State ex rel. Missouri Highway and Transportation Commission v. Kersey, 663 S.W.2d 364 (Mo.App.1983), the elapse of between eleven and twelve years justified dismissal. The dismissal of landowners exceptions after eight years of non-action was sustained in State ex rel. State Highway Commission of Missouri v. Milnes, 573 S.W.2d 727 (Mo.App.1978). The neglect of the condemnor here to prosecute the exceptions for six years and eight months to eight years and six months, without excuse, constituted unreasonable delay. The judgments of dismissal were neither arbitrary nor otherwise unjust but were exercises of a proper discretion. The delay which prompted the dismissals was attributable entirely to the condemnor. The cases the condemnor cites — such as State ex rel. State Highway Commission v. Gould, 592 S.W.2d 172 (Mo.App.1979)— therefore, which find dismissal an abuse of discretion where the adversary contributed to the delay do not apply.

The judgments of dismissal are affirmed.

All concur.

      . Were we to assume, nevertheless, that the Highway Commission wears the mantle of the sovereign [and so stands to assert the claim of immunity] and that an express statute or rule only suffices to dismiss an action for delay in prosecution — such a statute and rule in very terms subject the adjudication of eminent domain exceptions to the rules of civil procedure.
      Thus, § 523.050.2, RSMo 1978 and Rule 86.06 both provide that after exceptions are filed, the action proceed as in ordinary cases of inquiry of damages. This means that the trial de novo to a jury of the exceptions are governed by procedure applicable to ordinary civil cases. State ex rel. State Highway Commission v. Vorhof-Duenke Co., 366 S.W.2d 329, 336[4] (Mo. banc 1963); State ex rel. State Highway Commission v. Green, 305 S.W.2d 688, 694[6] (Mo.1957). Section 226.270, RSMo 1978, in turn, directs that the condemnation of lands shall proceed in accordance with Chapter 523 [insofar as applicable]. There is no doubt that Chapter 523 governs the land acquisitions, and hence the exceptions, before the trial court. Thus, the exceptions were governed by the rules of procedure and practice and the inherent power of a court to dismiss such proceedings for want of prosecution as embodied in Rule 67.02.


text:
    STATE of Missouri ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Successor to State Highway Commission of Missouri, Appellant, v. Jay B. DILLINGHAM, et al. Exceptions of George A. Colom, et al., Respondent.
    No. WD 35034.
    Missouri Court of Appeals, Western District.
    Dec. 11, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.
    Application to Transfer Denied April 2, 1985.
    Bruce A. Ring, Chief Counsel, Earl H. Schrader, Jr., Kansas City, Leland F. Dempsey, Asst. Gen. Counsel, Missouri Highway & Transp. Com’n, for appellant.
    Witt, Boggs & Shaw, Don Witt, Platte City, for respondent.
    Before DIXON, P.J., and SHANGLER and SOMERVILLE, JJ.
   SHANGLER, Judge.

The appeal consolidates two separate exceptions dismissed by the trial court for failure of the condemnor to prosecute with diligence. They involve two tracts among the numerous acquired by the Missouri Highway and Transportation Commission as rights-of-way to extend Interstate 435 through Platte County and around the circumference of Kansas City. These condemnations were commenced, in series from 1974 through 1975, and were components of the greater project described in State ex rel. Missouri Highway and Transportation Commission v. McCann, 685 S.W.2d 880 (WD 35,227, adopted concurrently). The original petitions named twenty-eight defendants, but at the time the judgments of dismissal were entered, only two exceptions still pended: that of landowners Colom and that of the con-demnor Highway Commission as to the Newby tract. The exceptions of landowners Colom were filed in November of 1974, and those of the Highway Commission [as to the Newby tract], on July 6, 1976. The two exceptions remained absolutely dormant until the Highway Commission motion on March 8, 1983, to set the cases for trial. Thus, as to the one, eight years and four months elapsed without activity; and as to the other, six years and eight months. The landowners Colom and Newby moved the dismissal of the exceptions for failure of the condemnor to prosecute the actions. The motion was heard on May 19,1983, and after evidence, the court entered judgments of dismissal.

The evidence to the trial court on the motion to dismiss replicated the proof made to the McCann court. The landowners once again presented real estate appraiser Johnson to describe the precipitous drop in the land values around the contiguous Kansas City International Airport since the tracts were condemned some seven to nine years before, and the resultant difficulty after such a lapse to locate comparable tracts to establish the value of those taken. The condemnor once again presented engineer Satterlee to explain the reasons why the original highway plan was no longer valid, and so required redesign and the takings, reappraisal. The witness attributed the necessity, and hence the delay in the prosecution of the exceptions, as in McCann, to traffic projections since permanently altered, but did not as in McCann, to the neglect of Kansas City to install access roads and other appurtenances as agreed with the Highway Commission. The witness expressly acknowledged [what in McCann was only intimated] that the tracts involved — here, the Colom and New-by parcels — were not affected by the redesign.

The Highway Commission on appeal asserts, as in McCann, that (1) as the agent of the sovereign, it is immune from termination of its rights due to delay or passage of time, and hence from judgment of dismissal, and (2) that the delay in the prosecution of the exceptions was, in any case, excusable.

The points on appeal, the arguments, and the literal briefs are duplicates of the assertions to us in McCann and ruled adversely to the condemnor. As in McCann, the record shows a self-motivated course of action by the Highway Commission to accomplish a de facto amendment of the condemnation petitions by redesign of the project and reappraisal of the tracts affected, all without notice or other formality of procedure, and then tendered as the excuse for the delay in the prosecutions. As in McCann, also, the record shows landowners without part in the delay — either by motions, continuances, stipulations, or any other initiative.

Our opinion in McCann, and our reasons, apply with equal validity to adjudicate this appeal against the Highway Commission.

The judgments of dismissal are affirmed.

All concur.


author: MANFORD, Judge.

text:
    STATE of Missouri, ex rel., MISSOURI HIGHWAY & TRANSPORTATION COMMISSION, Plaintiff-Appellant, v. John I. STELZER, et al., Exceptions of: Charles G. Manley, et al., Paragraph 17.0., Defendants-Respondents.
    No. WD 35406.
    Missouri Court of Appeals, Western District.
    Dec. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.
    Application to Transfer Denied April 2, 1985.
    Earl H. Schrader, Kansas City, for plaintiff-appellant.
    Thomas F. Fisher, Kansas City, for defendants-respondents.
    Before TURNAGE, C.J., and MANFORD and KENNEDY, JJ.
   MANFORD, Judge.

This is a civil action wherein exceptions were filed to a commissioner’s award for damages for condemnation of property necessitated by the construction of a highway. The trial court entered an order dismissing the proceedings. This appeal followed. The judgment is affirmed.

On August 30, 1974, appellant (Missouri Highway and Transportation Commission, hereinafter the Commission) filed a condemnation petition to acquire lands for further development of the 1-435 project. The Commission filed exceptions to the award of the commissioners on April 17, 1975. There were a total of 18 separate litiga-tions which remained inactive until 1983, or some eight years when the Commission moved for trial settings. Fifteen of the eighteen cases were consolidated into one proceeding. State ex rel. Missouri Highway Commission v. McCann, 685 S.W.2d 880 (Mo.App.1984) and two others were appealed and then consolidated in State ex rel. Missouri Highway Commission v. Dillingham, 685 S.W.2d 888 (Mo.App.1984).

This case is identical to McCann on the question of the dismissal of the proceedings except as otherwise noted infra, and a further consideration or account of the particular factual circumstances can, by the reader, be observed in McCann, supra.

On this appeal, the Commission asserts in summary that the trial court erred in its dismissal, because (1) as agent for the State of Missouri, the Commission is sovereign and thus immune from termination of its rights by way of dismissal because of delay or passage of time, (2) the delay in prosecution of the exceptions was excusable, and (3) respondent herein waived the right to a dismissal for want of prosecution when a trial date was agreed upon.

Points (1) and (2) are identical to those presented and decided adversely to the Commission in McCann and any further discussion of those assertions is not warranted. McCann specifically controls and rules those same points within the instant proceedings against the Commission.

Turning to the Commission’s point (3), it must be concluded that said point must also be ruled against the Commission.

On June 2, 1983, the Circuit Court of Platte County set a trial date for the instant proceeding for September 26, 1983. On June 27, 1983, respondents filed motions to dismiss the proceedings for failure (by the Commission) to prosecute. The circuit court sustained respondent’s motions on September 23, 1983.

The Commission asserts that by agreeing to the September 26, 1983 trial date, respondents waived their right to a dismissal for failing to prosecute. The Commission further asserts that it relied upon the trial date and made preparations for trial. There is no significant evidence upon the record to support the Commission’s assertion of trial preparation.

Dismissals of actions are within the sound discretion of the trial court and such a dismissal for failure to prosecute will not be disturbed on appeal absent a clear showing of an abuse of that discretion. State ex rel. Missouri Highway and Transportation Commission v. Kersey, 663 S.W.2d 365, 366 (Mo.App.1983). The trial court may consider the length of delay and any other attendant circumstances.

It is clear in the instant case that the circuit court considered not only the unwarranted time delay of almost eight years, but weighed other circumstances as well. In addition was the fact that respondents had agreed to a trial setting. Even with the fact of an agreed-to trial date, it must be said that the circuit court did not abuse its discretion when all of the facts and circumstances herein are considered. The mere agreement to a trial date did not constitute any type of waiver by respondents, nor did that additional fact weigh in the balance to constitute any abuse of discretion by the trial court. Kersey, supra.

The judgment is in all respects affirmed.

All concur.


author:
MANFORD, Judge.
      TURNAGE, Chief Judge,

text:
    John PAYNE, Maxine Payne, Wilbur C. Askew, Pari-Mutuel Revenue For a Better Missouri and Karen Schafer, Respondents-Relators-Plaintiffs, v. Hon. James C. KIRKPATRICK, Secretary of State of the State of Missouri, Appellant-Respondent-Defendant, and Gary D. Collins, Appellant-Intervenor-Respondent-Defendant.
    No. WD 36365.
    Missouri Court of Appeals, Western District.
    Dec. 11, 1984.
    As Modified Jan. 29, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.
    Application to Transfer Denied April 2, 1985.

      Edward D. Robertson, Asst. Atty. Gen., Jefferson City, for James C. Kirkpatrick.
    William Duane Benton, Jefferson City, for Gary Collins.
    George Alex Bartlett, Jefferson City, for John Payne, et al.
    Before TURNAGE, C.J., and SHAN-GLER and MANFORD, JJ.
   MANFORD, Judge.

This is an action in mandamus seeking to compel the Missouri Secretary of State to place, for popular vote, a proposed constitutional amendment on the ballot for November 6, 1984, which, if approved, would permit and allow pari-mutuel wagering on horse racing. The circuit court, by its judgment in the form of an order, directed the Missouri Secretary of State to in turn direct local election authorities to place the proposal on the ballot for the November 6, 1984 general election. An appeal from that judgment was presented to this court. The judgment is affirmed.

While at the outset there was disagreement, and perhaps some confusion, as to whether this court has jurisdiction of this matter, it is quite clear from a review of Mo.Const.Art. V, § 3 (as amended, 1982) that the subject matter herein is not within the exclusive appellate jurisdiction of the Missouri Supreme Court and therefore jurisdiction is vested in this court. Yes to Stop Callaway Committee, et al. v. Kirkpatrick, 685 S.W.2d 209 (Mo.App.1984).

The facts, other than those directly related to the issues on this appeal, are quite simple and not disputed between the parties. They are, therefore, summarized. As to any other facts, they are specifically considered in the disposition of the charged errors infra.

This matter arose over the presentment of initiative petitions by respondents to the Missouri Secretary of State on July 5,1984. Following the presentment of the petitions, the Secretary, after forwarding copies of the petitions to local election authorities for the verification of signatures, announced there was an insufficient number of signatures. This announcement was made on September 13, 1984. The Secretary stated that of the 208,060 submitted signatures, 137,840 were verified by local election authorities. The Secretary also announced that the petitions qualified in only four of the seven congressional districts involved. Specifically, the Secretary declared that the Second Congressional District failed to have the requisite number of valid signatures by 3,204, the Third Congressional District failed by 213, and the Seventh Congressional District failed by 843. Later the same day (September 13, 1984), respondents caused to have served upon the Secretary an alternative writ of mandamus and a petition for a writ of mandamus. The circuit court granted the alternative writ of mandamus, which directed the Secretary to either certify the petitions showing a sufficiency as to signatures or to show cause why the petitions were insufficient. On September 25, 1984, an eviden-tiary hearing was held and appellant-inter-venor was allowed to intervene. At the completion of the hearing, the circuit court issued its order pendente lite, directing the Secretary to place the proposal on the November 6, 1984 ballot. The order pendente lite was to remain in effect until October 27, 1984. At the evidentiary hearing, evidence was submitted by stipulation. On September 25, 1984, the circuit court made an entry on its docket sheet stating, “Case Under Advisement.” On September 27, 1984 and September 28, 1984, respondents filed pleadings with the circuit court captioned “Redesignation of Petition Sheets.” More about this matter is disclosed infra. On October 2,1984, the circuit court issued its order as noted above. This appeal followed.

In total, appellants (Secretary of State and Intervenor) present ten alleged errors. Since there is some duplication and overlapping of these ten points and for the purpose of the disposition of this appeal, those points have been combined and summarized as follows.

Appellants charge that the trial court erred in (1) declaring that § 116.140, RSMo 1978 requires the Secretary of State to strike all names not counted by election authorities within 30 days of the receipt of the petitions or else all signatures must be counted as valid; (2) declaring that the petitions contained a sufficient number of valid signatures within the Seventh Congressional District, (3) allowing respondents to redesignate the county on certain petition pages because such redesignation subverts § 116.060, RSMo 1978, (4) in counting as valid certain signatures where there existed a variation in the addresses on the petitions as compared with registered voter records, (5) declaring that the initiative petition may be used to authorize pari-mutuel wagering because Article III, § 51 limits such use of initiative petitions; (6) ruling that the petitions were constitutional because they violate Mo.Const.Art. Ill, § 50, because notice is not given relative to the enactment of a new section, 39(a) and the effect is to repeal the present section 39(a) presently authorizing bingo, and (7) ruling that the proposed amendment is constitutional because it contains more than one subject matter, and proposed amendments to more than one article of the constitution are in violation of Mo.Const.Art. Ill, § 50 and Art. XII, § 2(b).

It is to be noted from the outset that the decision of this court in affirming the judgment rests upon point (2) above. The remainder of the charged errors are considered solely due to their being presented and do not, as observed infra, weigh in the final disposition of this appeal.

Before addressing the specifically charged errors, some prefatory remarks are in order. Mo.Const.Art. Ill, § 50 (1945) provides that initiative petitions shall be submitted to the Secretary of State “not less than four months before the election ...” In the instant case, the petitions were filed exactly four months prior to the general election. Perhaps some thought might be in order to such filing some six months prior to the election. The reason for this thought is the extremely limited time placed upon the courts if and when a proposal is challenged by opponents of the measure. A longer prescribed time would enable our courts to give greater in-depth consideration of all the views of all parties interested in the measure. As it now stands, our courts are placed under such a time constraint and that, coupled with the immediacy of the situation, requires a resetting of dockets along with a number of other procedural and administrative problems that a longer time-period would avoid; not only a more orderly consideration of any such proposal, but more time for our courts to consider all attending ramifications of any such proposal. In addition, the Missouri General Assembly, because of the same problems as noted just previously, should explore changes within Chapter 116, RSMo 1978 which would directly define a time-period for certification by the Secretary of State, plus a statutory time limitation within which any challenge to such a proposal must be made. This change would further enhance the court’s opportunity to judicially review the various viewpoints free of the rushed and frenzied consideration of basic constitutional and legal questions which now attend any judicial review of such proposals. It would also permit review by the Supreme Court.

In addition, it should be made quite clear that the decision herein rests solely upon the factual and legal disputes raised by this case. This court must and has considered this matter completely detached from any attitude in support of or any attitude in opposition to the measure proposed herein. This court, in order to maintain its proper position within our system, must always and continues to render its decisions in such a detached atmosphere. It remains for the people through their vote and the proponents and opponents through their chosen media of expression to decide and discuss the economic, social and moral implications of such a proposal and its effect upon our state as a whole.

Under point (1), appellants charge that the trial court erred in declaring that § 116.140 requires the Secretary of State to strike names not counted by election authorities within 30 days of the receipt of the petitions or else all signatures must be counted.

This court concludes that appellants are correct in their assertion that the trial court erred in its interpretation of § 116.-140. The reason that the trial court erred is that § 116.140 has no application to the instant case. In considering this charged error, consideration must be given to § 116.130, RSMo 1978, as well as to § 116.-140. Section 116.130 reads:

116.130. Verification of petitions, procedure — rules and regulations
1.The secretary of state may send copies of petition pages to election authorities to verify that the persons whose names are listed as signers to the petition are registered voters. Each election authority shall check the signatures against voter registration records in his jurisdiction, but the election authority shall count as valid only the signatures of persons registered as voters in the county names in the circulator’s affidavit.
2. If the election authority or the secretary of state determines that the congressional district number written after the signature of any voter is not the congressional district of which he is a resident, the election authority or the secretary of state shall correct the congressional district number on the petition page. Failure of a voter to give his correct congressional district number shall not by itself be grounds for not counting his signature.
3. The election authority shall return the copies of the petition pages to the secretary of state with annotations regarding any invalid or questionable signatures. He shall verify the number of pages received for that county, and also certify the total number of valid signatures of voters from each congressional district.
4. The secretary of state is authorized to adopt rules to insure uniform, complete, and accurate checking of petition signatures. Any rule or portion of a rule promulgated may be suspended by the joint committee on administrative rules if after hearing thereon the committee finds that such rule or portion of the rule is beyond or contrary to the statutory authority of the agency which promulgated the rule, or is inconsistent with the legislative intent of the authorizing statute. The general assembly may reinstate such rule by concurrent resolution signed by the governor.
5. After a period of three years from the time of submission of the petitions to the secretary of state, the secretary of state, if he determines that retention of such petitions is no longer necessary, may destroy such petitions or return them to the person submitting them upon written request from such person. Returned petitions shall be stamped by the secretary of state to indicate that such petitions are no longer valid.

As can be observed, § 116.130.1 states that the Secretary of State may send copies of petition pages to election authorities for the purpose of verifying that those persons who are listed as signers on the petitions are properly registered voters. Further, as can be observed, under § 116.-130.3 the election authorities shall return the petition pages to the Secretary with annotations relative to the validity of any signature. The Secretary then is required to verify the pages of the petition returned for each county and further, he is to certify the total number of valid signatures from each of the congressional districts.

All that § 116.130 provides is an alternative method for the verification of signatures. It is an optional method left to the decision of the Secretary of State. The very use of the term may within that section describes the legislative intent that the Secretary is given such option.

In addition, within § 116.140, the Secretary is provided another option to the procedure permitted within § 116.130. Section 116.140 reads:

116.140. Secretary of state may strike signatures he determines to be invalid — secretary may be compelled to show cause.
Notwithstanding certifications from election authorities under section 116.-130, the secretary of state shall have authority not to count signatures on initiative or referendum petitions which are, in his opinion, forged or fraudulent signatures. In determining the validity of signatures, the secretary may consult public records, including voter registration records, for signature comparisons, and he may also rely on any certifications from election authorities on the matter. Names stricken from the petition lists for the reason of forgery or fraud shall be stricken within thirty days of receipt of the petition lists by the secretary of state, and shall be so noted on the petition and within three days of determining which signatures should not be counted, the secretary of state shall send by certified mail a list of those not counted because of apparent forgery or fraud or failure to comply with section 116.060 to the person whose name and address are designated under section 116.100, informing him that those signatures will not be counted. Within ten days after receiving such a notice from the secretary of state, the person submitting the petition may bring an action in the circuit court of Cole County to compel the secretary of state to show cause why the names were stricken. If the secretary of state does not give notice as required by this section, his action in striking those signatures from the petition shall be void.

As can readily be observed under the foregoing statutory section, the Secretary is authorized not to count certain signatures. Unlike § 116.130, § 116.140 sets forth certain requirements which must be met if the Secretary opts to strike names from the petition lists. If he takes such action, he has thirty days within which this must be done. In addition, he must send by mail a list of those names stricken to the person or persons to whom notice is to be given pursuant to §116.100, RSMo 1978. The requirements prescribed by § 116.140 clearly apply only to acts committed by the Secretary. When § 116.130 and § 116.140 are read together, as they must be, it becomes obvious that two separate and different procedures relative to signature verification are provided. Words and terms within a statute must be accorded their plain and ordinary meaning. State v. Burnau, 642 S.W.2d 621 (Mo. banc 1982).

As it concerns the instant case, it is clear from the record that the Secretary took no action to strike signatures, and it must therefore follow that the 30-day time limitation and notice are not applicable herein. Correspondingly, § 116.130 places no such time constraint or notice requirement upon local election authorities.

This court is at a loss to determine why the circuit court herein even undertook to rule the way it did regarding § 116.130 and § 116.140. Perhaps the harried fashion and time constraint created in these proceedings triggered the circuit court’s action in this regard. Alternatively, perhaps the circuit court was uncertain as to the tabulation of valid signatures. It will perhaps never be known, but nonetheless it is of little significance as it regards the disposition of this appeal. The circuit court’s ruling on the statute, as will be observed infra, has no controlling influence in this case, but since the precise issue was presented to this court, it becomes the duty of this court to discuss and rule the precise issue. The conclusion which must be' reached is that the circuit court, under the particular facts and circumstances of the instant proceedings, erroneously interpreted and applied § 116.130 and § 116.140.

These two statutory sections perhaps need further consideration by the General Assembly and this court suggests a revision of both sections aimed toward a direct and clear definition of any time requirements upon either the local election authorities or the Secretary, along with what requirements, if any, are to be provided persons under § 116.110. Such a revision, it is hoped, would then advise the local election authorities and/or the Secretary of exactly what each can/may do and in addition, prescribe a definite time frame for those requirements to be met. Such a revision would prevent the post-action review, as in the instant case, to determine if the statute were even applicable. In this way, those involved in the initiative process, the local election authorities, the Secretary, and the courts would know precisely what each can and must do within a clearly outlined time network.

Turning to appellant’s point (2), attention is focused upon the real dispositive issue in this case. Appellants charge that the trial court erred in declaring the petitions contained a sufficient number of signatures within the Seventh Congressional District.

Before giving attention to the factual (i.e., mathematical factor) aspects of this issue, consideration must be given to certain basic constitutional provisions applicable to the issue.

The challenge made by the appellants includes reference to Article III, § 50, Article III, § 53, and as observed infra, of necessity, the issue also involves Article IV, § 18. These various sections read as follows:

§ 50. Initiative petitions — signatures required — form and procedure
Section 50. Initiative petitions proposing amendments to the constitution shall be signed by eight per cent of the legal voters in each of two-thirds of the congressional districts in the state, and petitions proposing laws shall be signed by five per cent of such voters. Every such petition shall be filed with the secretary of state not less than four months before the election and shall contain an enacting clause and the full text of the measure. Petitions for constitutional amendments shall not contain more than one amended and revised article of this constitution, or one new article which shall not contain more than one subject and matters properly connected therewith, and the enacting clause thereof shall be ‘Be it resolved by the people of the state of Missouri that the Constitution be amended:’. Petitions for laws shall contain not more than one subject which shall be expressed clearly in the title, and the enacting clause thereof shall be ‘Be it enacted by the people of the state of Missouri:’.
§ 53. Basis for computation of signatures required
Section 53. The total vote for governor at the general election last preceding the filing of any initiative or referendum petition shall be used to determine the number of legal voters necessary to sign the petition. In submitting the same to the people the secretary of state and all other officers shall be governed by general laws.
§ 18. Election returns — board of state canvassers — time of meeting and duties — requirement for election — tie votes
Section 18. The returns of every election for governor, lieutenant governor, secretary of state, state auditor, state treasurer and attorney general shall be sealed and transmitted by the returning officers to the secretary of state, who shall appoint two disinterested judges of a court of record of the state, and the three shall constitute a board of state canvassers. The board shall meet at the state capítol on, or at the call of the secretary of state before, the second Tuesday of December next after the election and- forthwith open and canvass the returns of the votes cast and from the face thereof ascertain and proclaim the result of the election. The persons having the highest number of votes for the respective offices shall be declared elected, and if two or more persons have an equal and the highest number of votes for the same office, at its next regular session the general assembly, by joint vote and without delay, shall choose one of such persons for the office.

As regards Art. Ill, § 50, it is referenced merely to illustrate that in those instances involving a proposed constitutional amendment and a proposal of a law by initiative petition, the requisite percentage of signatures is 8% and 5% in each of two-thirds of Missouri’s congressional districts. Those requisites are not in dispute. The parties also do not dispute that since Missouri currently has only nine congressional districts, the requisite two-thirds is 8% or 5% within each of six of the congressional districts.

As regards Art. Ill, § 53, there is a strong dispute between the parties. Appellants contend that the term “total vote” contained within that section means and equates with the term actual votes cast for the governor in the last preceding election. Respondent, on the other hand, contends that the term “total vote” means the number of votes cast and as proclaimed by the Board of State Canvassers and authorized within Art. IV, § 19.

An explanation of the facts herein is required and which in turn will illustrate the difference in the parties’ positions on this issue. When respondents commenced the circulation of their petitions, they requested and received from the Secretary of State a certification of the votes cast within the Seventh Congressional District. They were advised that the total number was 233,079. Thus, when 8% is applied to that total number, the resulting number is 18,-646. When this was subsequently contested, it was determined that through an administrative oversight, and thus a mathematical miscalculation, an error of 4,808 votes was discovered. Stated another way, by actual vote, the total votes cast should read 237,887. It can readily be observed then that 8% of this new total would amount to 19,032.

Thus, this court must determine what “total vote” means within Article III, § 53. There are no Missouri cases which have addressed or decided this question.

While appellants argue that “total vote” means “actual vote”, respondents assert not only were they entitled to rely upon the vote proclaimed by the Board of Canvassers, but for purposes herein, that proclaimed vote is the “total vote” within the meaning of Article III, § 53. Referring to a general source on this subject, the following is found in 29 C.J.S. Elections § 237(4) (1965):

Generally a declaration of the results of an election must be made by designated officers, usually the canvassing board, in the manner provided by law, and such declaration is binding on everyone as long as it stands unreversed by a proper judgment or decree.

Article IV, § 18 follows the above announced general principle.

It has been determined that the declaration of election results is administrative and not judicial. McGary v. Barrows, 156 Me. 250, 163 A.2d 747 (1960); Fairfield-Suisan Sewer District v. Hutcheon, 139 Cal.App.2d 502, 294 P.2d 102 (1956). It has also been determined that the validity of the declared (i.e., proclaimed vote within Article IV, § 18) vote is not subject to collateral attack. State ex rel. Donnell v. Osburn, 347 Mo. 469, 147 S.W.2d 1065 (1941). Osburn further declares at 147 S.W.2d 1068:

We are convinced that the result as determined from the face of the returns was to be at least prima facie evidence of election. It follows then that the duties imposed by Section 3 are ministerial, [i.e., count of vote required by the Speaker of the House of Representatives] The winner as shown thereon was to be declared elected. If the election was to be contested such contest would be thereafter instituted and conducted as provided by law. We held official returns to be prima facie evidence of election and good until proven otherwise by contest in State ex rel. Attorney General v. Vail, 53 Mo. 97.

As a curious note, the circuit court herein, in its order and memorandum, relied upon Vail and declared that Vail held that the Governor “cannot look behind such an official canvass.” While Vail does pertain to this issue, its application is more correctly noted in the above quote from Osbum. This distinction is made obvious from the following quote from Vail at 111:

The question in this case is not, whether the Governor may go behind the certificate of the Secretary of State and look into the returns filed in that office to see if the certificate is warranted by these returns, or is false, but whether he can disregard both the certificates and the returns on file in the Secretary’s office, and give the commission to the candidate

As to the review of a vote canvass, additional reference to 29 C.J.S. Elections § 237(5) (1965) reveals there to be no inherent jurisdiction for review of such canvass by the courts. That is, absent either constitutional or statutory authorizations courts do not have the authority to sua sponte review the vote canvass. No such constitutional or statutory scheme is to be found under Missouri law.

Thus, in consideration of the term “total vote” as used and intended within Article III, § 53, and at the same time ruling against appellants on this point, the following conclusions must be reached.

“Total vote”, as that term is intended within Article III, § 53, means that vote proclaimed by the Board of Canvassers after and as a result of the performance of the requirements prescribed in Article IV, § 18. Further, the vote as “proclaimed” by the Board of Canvassers shall be prima facie evidence thereof and the proclaimed results shall not be subject to any collateral attack, but rather, any attack on such vote shall be made in a separate proceeding directly contesting the validity thereof. Under the particular facts and circumstances herein, it is concluded that appellants’ challenge to the “proclaimed vote” is collateral in nature. This attack arose over two years following the general election from which the proclamation was made, and the error was discovered only upon the present contest being initiated. In that interval, reliance was made upon the proclaimed vote by respondents, and it is safe to presume such reliance was often made by others concerned with the finality of the vote.

Thus, “total vote” is construed to mean that vote proclaimed by the Board of Canvassers in the absence of a prompt and successful challenge to the proclaimed vote. Obviously, the matter is rendered moot if, on the other hand, there is a prompt and successful challenge to the proclaimed vote as that successful process would then, by a correction to the proclaimed vote, render the “total vote” the same as the “actual vote.” Thus, respondents’ challenge to the incorrect numerical proclamation of vote by the Board of Canvassers must fail.

Turning now to the evidentiary aspect of the issue after having shown the requisite number of names to be 18,646, this court would like to point out that while this matter was before this court, a careful and meticulous “recount” and analysis of the names within the Seventh Congressional District took place. There were submitted by the petition 27,201 names. Of that number, only 18,188 were verified. With that verification, it is obvious that there existed a shortage of 458 names below the required 18,646.

By way of an exhibit (Exhibit AH), respondents claimed that 857 names should have been counted and they were not counted by the Secretary. In addition, respondents introduced an exhibit (Exhibit AI) which listed some 790 names which in turn, respondents claim, should have been counted but were not counted by the Secretary.

This court has analyzed these exhibits. As to exhibit AH first, the circuit court found that 207 names were valid signatures of legal voters with each of them registered within the county designated on the particular sheet which the individual signed. After reviewing the exhibit, this court must agree with the circuit court’s inclusion of these 207 names. Still, as regards Exhibit AH, the circuit court included “two hundred or more” names which reflected an identical name and address between the petitions and the voter registration records. Of this “two hundred or more”, there were some names which had “inconsequential variations.” These “inconsequential variations” were such things as the absence of a middle initial or the use of a “nickname” in lieu of a formal given name. The trial court concluded that these names should have been included, particularly when aided by the presumption of validity. After a careful review of Exhibit AH, this court cannot conclude that either the process or the result reached by the circuit court was in error. Thus, from AH, a total of 409 names should have been added. By calculation, then the petitions still fell short by 49 names.

When Exhibit AI was reviewed by this court, the conclusion reached by the circuit court in including an additional 52 names must be upheld. These 52 names were identical on the voter registration records and the petitions. Thus, the total of valid names after review by this court came to a total of 18,649. Stated another way, this court’s review reveals that from Exhibits AH and AI, a total of 461 names should have been included. When this 461 number is added to the uncontested 18,188 figure, a total of valid signatures of 18,649 is derived.

In addition, there were 64 signatures which were “harmonized” by the Greene County Clerk as being the same or where the address contained only minimal variations. Thus, it is also correct to have included these 64 signatures or names, thus producing a final total of 18,713.

This tabulation excludes signatures or names accompanied by a wrong address, duplications, a signature entered by a spouse and where the name was printed instead of given in cursive. All names within these categories are deemed invalid and could not and were not counted.

In addition, the above calculation did not include 245 names which were included by the circuit court in its “redesignation of the' petition.” That issue is discussed infra under point (8).

So, in conclusion, as it concerns appellants’ point (2), said point must be ruled against appellants because of the following reasons.

“Total vote”, as that term is used and intended within Article III, § 53 means, in the absence of a prompt, direct and successful challenge to the “proclaimed vote” of the Board of Canvassers as prescribed by Article IV, § 18, the vote “proclaimed” by the Board of Canvassers. Thus, the “total vote” in the instant case required to satisfy the 8% requirement under Article III, § 49 is 18,646. Further, the evidence as regards the signatures, as outlined above, establishes at least 18,649 valid signatures to which could have been added an additional 64, bringing the actual name total to 18,713. Appellants’ point (2) must be held to be without merit and is ruled against them.

Under their point (3), appellants charge that the trial court erred in permitting respondents to redesignate their petition sheets. Again, as noted, this issue is not dispositive of this appeal, but is addressed because of the importance of the issue.

It should first be pointed out that this court does not agree that the approximate 60 names “added” by “redesignation” were necessary to reach the total requisite signatures to place the proposal on the ballot. By this court’s counting process, the names “redesignated” were not counted by this court. Thus, what remains is the determination of whether the circuit court had authority to “redesignate” petitions.

What occurred was that a pleading was filed by respondents, asking permission to alter, amend, or redesignate certain petitions in order that the names thereon would coincide with the county of residence of the signers (some 60 total). The court allowed such designation upon respondent’s claim of a scrivener’s error.

The circuit court was without authority to “redesignate” the petitions. The petitions are evidentiary in nature and are not in the form of pleadings to which a trial court might act regarding alteration or amendment.

This court concludes that the assertion of appellants that the “redesignation” of petitioners subverts § 116.060, RSMo 1978 is correct. Section 116.060 reads:

116.060. Initiative and referendum petitions, who may sign — residents of one county only on a page
Any registered voter of the state of Missouri may sign initiative and referendum petitions. However, each page of an initiative or referendum petition shall contain signatures of voters from only one county. Signatures of voters from counties other than the one designated by the circulator on a given page shall not be counted as valid.

As noted above, the ruling on this point does not constitute grounds for reversal because the names affected by the “redes-ignation” were not included by the court within the “total vote” or total name calculation.

Nonetheless, the trial court did err in “redesignating” the petitions pursuant to respondents’ request for same. Said act by the circuit court was in no manner authorized and in fact such action, since it violates § 116.060, is prohibited.

Under their point (4), appellants charge that the trial court erred in counting as valid certain signatures where there existed a variation in the addresses as compared with registered voters’ records.

Appellants are correct that there existed some variations between the addresses on the petitions as compared with registered voters’ records. This court, in its review, discarded such names and while such variations did appear, they were insignificant in relation to the final count and did not affect the final outcome.

This precise issue was answered in this court’s opinion in Yes To Stop Calloway Committee v. Kirkpatrick, et al., 685 S.W.2d 209 (Mo.App.1984). Thus, signatures and addresses upon any initiative petition which, when compared with registered voters’ records reflect a different address, are invalid and are not to be counted.

Under their point (5), appellants charge that the trial court erred in declaring that an initiative petition may be used to authorize pari-mutuel wagering because Article III, § 51 limits such use of initiative petitions. Section 51 of Article III reads:

§ 51. Appropriations by initiative — effective date of initiated laws-conflicting laws concurrently adopted
Section 51. The initiative shall not be used for the appropriation of money other than of new revenues created and provided for thereby, or for any other purpose prohibited by this constitution. Except as provided in this constitution, any measure proposed shall take effect when approved by a majority of the votes cast thereon. When conflicting measures are approved at the same election the one receiving the largest affirmative vote shall prevail.

This court cannot agree with appellants’ contention. The wording of § 51, in the first portion thereof, is limited to appropriation by the initiative petition. It is not that portion that appellants seek to have this court interpret, however. Appellants seized upon the language “or for any other purpose prohibited by this constitution.”

After a well presented review of the development of language within our constitution, appellants ground their argument upon Article III, § 89(9), which standing alone reads:

§ 39(9)
(9) To authorize lotteries or gift enterprises for any purpose, and shall enact laws to prohibit the sale of lottery or gift enterprise tickets, or tickets in any scheme in the nature of a lottery; except that, nothing in this section shall be so construed as to prevent or prohibit citizens of this state from participating in games or contests of skill or chance where no consideration is required to be given for the privilege or opportunity of participating or for receiving the award or prize and the term ‘lottery or gift enterprise’ shall mean only those games or contests whereby money or something of value is exchanged directly for the ticket or chance to participate in the game or contest. The general assembly may, by law, provide standards and conditions to regulate or guarantee the awarding of prizes provided for in such games or contests under the provision of this subdivision.

However, § 39(9) is preceded by § 39(1), which reads:

§ 39(1).
Section 39. The general assembly shall not have power:
(1) To give or lend or to authorize the giving or lending of the credit of the state in aid or to any person, association, municipal or other corporation;

Thus, by any fair interpretation or understanding, § 39(9) is within and subject to § 39 as a whole, which contains the limiting language that such prohibition is only applicable to the power of the Missouri General Assembly. It does not follow that such prohibitions, as found within § 39, applies to initiative petitions, particularly in light of the language contained within § 49 of Article III, which reads:

§ 49. Reservation of power to enact and reject laws
Section 49. The people reserve power to propose and enact or reject laws and amendments to the constitution by the initiative, independent of the general assembly, and also reserve power to approve or reject by referendum any act of the general assembly, except as hereinafter provided.

Section 49 specifically distinguishes the reserved power of the people by initiative independent of the power of the Missouri General Assembly. When § 39 and § 49 are read together and harmonized, as they must be by this court, it must be concluded that reference with § 51, declaring “or for any other purpose prohibited by this constitution” does not apply or limit the reserved power of the people within § 49. It is noted that there is no other specific limitation within the constitution on wagering, except that set forth within § 39(9), and it must follow that § 51 finds application only to prohibitions set forth within § 39.

If the people of this state wish to limit the use of the initiative, then attention must be directed to § 49 and such limitations must be enumerated therein or alternatively, the people should propose additional amendments to the constitution specifically declaring limitations upon the use and application of initiative petitions. As it currently is worded, the prohibition claimed by appellants is by the specific wording of § 39 limited to actions of the General Assembly and not to powers reserved to the people by virtue of § 49.

Under their point (6), appellants charge that the trial court erred in ruling that the petitions were constitutional, because they violate Article III, § 50 of the Missouri Constitution because notice was not given relative to the enactment of a new § 39(a) and the effect is to repeal the present § 39(a) authorizing bingo.

This court does not reach appellant’s assertion as to whether former § 39(a), commonly referred to as the “bingo section” was by the enactment of pari-mutuel horse racing repealed. On the surface, it appears that bingo has, in effect, been repealed and is no longer authorized under Missouri law. This result appears possible because of the precise wording of the proposed amendment on pari-mutuel horse racing. The proposal makes no provision for the continuation or reenactment of bingo.

This court does not decide that issue because the question before this court is whether the proposed amendment adequately gave signers, and thus the voters, adequate notice of what it proposed for purposes of the proposal being placed upon the November 6, 1984 ballot.

A fair reading and interpretation of the proposed amendment does advise the people that Article III, § 39 is repealed and further that two new sections are enacted in lieu thereof. That suffices for purposes of the measure being placed upon the ballot for popular vote. It is noted that the bingo provision is repealed and not re-enacted, but a ruling on the precise question of whether bingo is repealed must await further action, if any, as the answer to that question is not necessary or before this court in the current proceedings.

Under their final point (7), appellants charge that the trial court erred in ruling that the proposed amendment is constitutional, because it contains more than one subject matter and proposes amendments to more than one Article of the Constitution, in violation of Article III, § 50 and Article XII, § 2(b) of the Missouri Constitution:

§ 50. Initiative petitions—signatures required—form and procedure
Section 50. Initiative petitions proposing amendments to the constitution shall be signed by eight per cent of the legal voters in each of two-thirds of the congressional districts in the state, and petitions proposing laws shall be signed by five per cent of such voters. Every such petition shall be filed with the secretary of state not less than four months before the election and shall contain an enacting clause and the full text of the measure. Petitions for constitutional amendments shall not contain more than one amended and revised article of this constitution, or one new article which shall not contain more than one subject and matters properly connected therewith, and the enacting clause thereof shall be ‘Be it resolved by the people of the state of Missouri that the Constitution be amended;’. Petitions for laws shall contain not more than one subject which shall be expressed clearly in the title, and the enacting clause thereof shall be ‘Be it enacted by the people of the state of Missouri:’.
§ 2(b). Submission of amendments proposed by general assembly or by the initiative
Section 2(b). All amendments proposed by the general assembly or by the initiative shall be submitted to the electors for their approval or rejection by official ballot title as may be provided by law, on a separate ballot without party designation, at the next general election, or at a special election called by the governor prior thereto, at which he may submit any of the amendments. No such proposed amendment shall contain more than one amended and revised article of this constitution, or one new article which shall not contain more than one subject and matters properly connected therewith. If possible, each proposed amendment shall be published once a week for two consecutive weeks in two newspapers of different political faith in each county, the last publication to be not more than thirty nor less than fifteen days next preceding the election. If there be but one newspaper in any county, publication for four consecutive weeks shall be made. If a majority of the votes cast thereon is in favor of any amendment, the same shall take effect at the end of thirty days after the election. More than one amendment at the same election shall be so submitted as to enable the electors to vote on each amendment separately.

This court cannot agree with appellants’ assertion that the proposed amendment contains more than one subject matter, nor that the measure proposes amendments to more than one article of the constitution. From and upon a fair reading and interpretation of the proposal, it must be concluded that it is directed to the voters, and if approved by them, authorizes pari-mutuel horse racing. First, it can be said there is no merit to appellants’ contention that the proposal “by implication” repeals §§ 17,18, and 19 of Article X of the Missouri Constitution (as amended 1980).

The proposal, after prescribing its terms and setting forth details of a racing commission, continues to thus define the appropriation of funds derived from pari-mutuel operations. Such provisions are within the language found in both Article III, § 50 and Article XII, § 2(b), both of which read, “... and matters properly connected therewith.”

The proposal does not violate either Article III, § 50, nor Article XII, § 2(b).

Nothing has been presented to this court which persuades this court to conclude that the proposed amendment to the Missouri Constitution to authorize pari-mutuel horse racing must be denied placement upon the November 6, 1984 general election ballot. As to any and all other substantive matters, the answer lies in other properly instituted proceedings and this court neither reaches nor decides those issues.

Judgment affirmed.

SHANGLER, J., concurs.

TURNAGE, C.J., dissents in separate dissenting opinion.

TURNAGE, Chief Judge,

dissenting.

I dissent because I do not believe the circuit court acquired jurisdiction to order the initiative in this case to be placed on the ballot. Although no party has raised the issue of jurisdiction, it is our duty to examine the jurisdiction of the circuit court sua sponte. Justus v. Webb, 634 S.W.2d 567, 568[2] (Mo.App.1982).

The initiative petition in this case was delivered to the Secretary of State on July 5, 1984. The Secretary sent copies of each petition page to local election authorities for them to check the petition signatures against voter registration records. Sometime prior to September 13,1984, the Secretary received back all of the pages from the local election authorities and totaled the number of valid signatures. On September 13, the Secretary released a statement to the press that the petition did not have the required number of valid signatures to place the initiative on the ballot.

The same day, the officers of the committee supporting the initiative filed a petition in mandamus in the Circuit Court of Cole County. Also that day, an alternative writ of mandamus was served on the Secretary of State which directed the Secretary to either certify the petition as having a sufficient number of signatures to place the initiative on the ballot or to show cause why the petition did not contain a sufficient number of signatures. After a hearing, the court ordered the Secretary to place the initiative on the ballot.

Section 116.200, RSMo Supp.1984 provides that after the Secretary of State certifies a petition as sufficient or insufficient, any citizen may apply to the Circuit Court of Cole County to compel him to reverse his decision. The predecessor to § 116.200 was § 126.071, RSMo 1978, which stated that if the Secretary refused to file or certify any initiative petition, any citizen could apply to the circuit court for a writ of mandamus to compel him to do so. Section 126.071 was repealed by Laws of Mo.1980, p. 284, effective January 1, 1981, which is the date § 116.200 took effect.

I believe there are two reasons the circuit court did not have jurisdiction to order the Secretary to place the initiative on the ballot. First, § 116.150, RSMo Supp.1984 requires the Secretary to certify that the petition is sufficient or insufficient. In thife case, the Secretary has yet to certify the petition as sufficient or insufficient, and in fact he had no opportunity to do so because of the filing of the writ of mandamus petition. While it may be argued that the Secretary’s press release announcing that the petition was insufficient will suffice as a certification, the fact remains that he did not actually certify the petition as insufficient. Absent such a certification from the Secretary, there was no decision for the court to reverse under § 116.200. The court had nothing before it capable of adjudication and thus did not acquire subject matter jurisdiction.

There is a second reason the circuit court did not have jurisdiction. Section 116.200 permits any citizen to file a petition with the Circuit Court of Cole County to compel the Secretary to reverse his certification decision. The legislature repealed the use of a writ of mandamus for this purpose in 1980, and since that time no authority exists for the use of mandamus to compel the Secretary of State to certify an initiative petition as sufficient or insufficient. Absent a statute authorizing the use of mandamus in this case, it is clear that mandamus will not lie. Here, the writ was used to adjudicate the validity of the number of petition signatures. In State ex rel. Summers v. Pletz, 614 S.W.2d 559, 562[5] (Mo.App.1981), this court stated: “The function of mandamus is to enforce, not to establish, a claim or right; the office of the writ is to execute, not to adjudicate.”

In this case, the writ clearly was used to adjudicate the question of the number of valid signatures, and thus to establish the right to have the initiative placed on the ballot. These are the very objectives which the writ of mandamus will not reach. Since January 1, 1981, the legislature has prescribed a method for testing the Secretary’s certification concerning whether or not the petition is sufficient or insufficient. That method provides simply for the filing of a petition to compel the Secretary to reverse his decision.

In Gothard v. Spradling, 586 S.W.2d 443, 445[1, 2] (Mo.App.1979) the court stated:

Where the legislature is authorized to, and provides a method for review, failure to follow that procedure is jurisdictional. Randles v. Schaffner, 485 S.W.2d 1, 3 (Mo.1972). The General Assembly may very properly provide for specific review procedures in particular cases. Blydenburg v. David, 413 S.W.2d 284, 291 (Mo. banc 1967). The right of review is constitutional, but where the statute provides the remedy and the procedure to be followed, it must be complied with. State ex rel. State Tax Commission v. Luten, 459 S.W.2d 375 (Mo. banc 1970); State v. Stanton, 311 S.W.2d 137, 140 (Mo.App.1958). When a statute provides a special type of review it is exclusive so as to preclude the use of any other or nonstatutory method. American Hog Company v. County of Clinton, 495 S.W.2d 123, 127 (Mo.App.1973).

In my view the procedure followed in this case was wholly unauthorized by statute and in fact contrary to the limitations placed on the writ of mandamus. The statute provides a plain and simple method of review, but that procedure was not followed. The petition for mandamus was filed before the Secretary could certify the petition as sufficient or insufficient. That, plus the use of a proceeding wholly unauthorized by statute, leads me to conclude that the circuit court had no jurisdiction to order the Secretary of State to place the initiative on the ballot. I would reverse the judgment of the circuit court on the ground that the court had no jurisdiction in this case.

      . It is noted that initially there was a dispute over valid signatures within three congressional districts. The parties, by stipulation, resolved the dispute concerning two districts thus limiting the issue only to the Seventh Congressional District.

      . The actual calculation would be 19,031.96 and is thus rounded off to the next highest full number.

      . It is noted the trial court ruled this issue against appellants by declaring the issue not ripe for determination.

      . It must be noted that § 39(9) was amended by the addition of § 39(a), authorizing bingo by voter approval on November 4, 1980.