author: BLACKMAR, Judge. BILLINGS, Judge,

text:
    STATE ex rel. UNION ELECTRIC COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Public Counsel for the State of Missouri, and Missouri Public Interest Research Group, Respondents.
    No. 66014.
    Supreme Court of Missouri, En Banc.
    Feb. 26, 1985.
    Rehearing Denied April 2, 1985.

      Paul A. Agathen, Debra H. Janoski, St. Louis, for appellant.
    William C. Harrelson, Kent M. Ragsdale, Public Service Com’n, Jefferson City, Tom W. Ryan, Jr., Missouri Public Interest Research Group, St. Louis, Douglas Brooks, Richard W. French, Daniel L. Maher, Jefferson City, for respondents.
   BLACKMAR, Judge.

Union Electric Company is an investor owned electric utility serving the St. Louis metropolitan area, other parts of Missouri, and parts of three other states. In 1975 it sought and received a certificate of convenience and necessity from the Missouri Public Service Commission to commence construction of two nuclear reactor power plants in Callaway County, Missouri. See State ex rel. Util. Consumers Council v. Pub. Serv. Com., 562 S.W.2d 688 (Mo.App.1978). The two projects are commonly known as Callaway I and Callaway II.

While the plants were in the process of construction, and before either had come on line for the generation of electric power, the voters of the state adopted at the 1976 general election, through the initiative process, “Proposition One,” now codified as §§ 393.135 and 393.136, RSMo 1978. Proposition One was enacted as a statute and not as a constitutional amendment. It reads as follows:

393.135 — Any charge made or demanded by an electrical corporation for service, or in connection therewith, which is based on the costs of construction in progress upon any existing or new facility of the electrical corporation, or any other cost associated with owning, operating, maintaining, or financing any property before it is fully operational and used for service, is unjust and unreasonable, and is prohibited.
393.136 — Notwithstanding the foregoing, any such charge which is being made or demanded on November 2, 1976, shall not be deemed unjust or unreasonable by reason of section 1 [§ 393.135] of this law, and shall not be prohibited thereby, for a period of ninety days after the effective date of this law.

Construction at both Callaway I and Call-away II continued following the enactment of Proposition One. No issue is presented in this case as to Callaway I. In 1981, however, Union Electric decided to abandon Callaway II, assigning as reasons the slackening of consumer demand and the high cost of borrowed funds. It then applied to the Commission for authority to amortize the portion of the costs expended on Callaway II attributable to Missouri over a five-year period. It sought to charge these costs as expense and not to include them in its rate base from which return on investment is computed. The Commission held that, by the terms of Proposition One, it was precluded from allowing the recovery of any amount from the ratepayers on account of the abandoned construction. Union Electric appealed to the Circuit Court of Cole County, which affirmed. Union Electric now appeals to this Court.

Jurisdiction

The question of our jurisdiction was raised in oral argument. We sense a degree of confusion in this case and others as to the scope of our initial appellate jurisdiction under Art. V, § 3, following the 1976 amendment. The pertinent language is as follows:

The supreme court shall have exclusive appellate jurisdiction in all cases involving the validity ... of a statute or provision of the constitution of this state, ...

Earlier constitutional language about “construction of the Constitution of the United States or this state” has been completely eliminated, and the numerous decisions about the difference between “construction” and “application” of constitutional provisions are no longer of concern. The sole question is whether the validity of the statute is involved. Appellant’s Point II distinctly draws the validity of Proposition One into question. The appellant argues as follows:

If Proposition 1 is interpreted as a prohibition against recovery of prudent cancelled plant costs, denial of such recovery would deprive Appellant of its property without due process of law in violation of U.S. Const.Amend. XIV, Sec. 1, and Mo. Const. Art. 1, Sec. 10.

Appellant’s Point III likewise argues that Proposition One, if interpreted as the Commission has interpreted it, violates the equal protection clause of the Fourteenth Amendment and also Art. I, Sec. 2 of the Missouri Constitution. Appellant argues as follows:

If the Circuit Court’s interpretation of Proposition 1 is correct, Appellant contends that it is a violation of the equal protection clause of the United States Constitution Amend. XIV, Sec. 1, and the Missouri Constitution Art. 1, Sec. 2, to single out electric utilities for treatment different from that accorded telephone, gas, sewer or water companies in this state.

Both of these points clearly allege that Proposition One is constitutionally invalid if construed so as to prohibit the recovery of the cost of abandoned construction.

It makes no difference that the appellant first argues that the Commission and the circuit court erred in the construction of Proposition One, so that this Court could decide the case in its favor without reaching the constitutional questions. A statute is to be construed so as to render it constitutional, if this is possible. A court will avoid the decision of a constitutional question if the case can be fully determined without reaching it. If our appellate jurisdiction properly attaches jurisdiction is not lost if the ease is decided without reaching the constitutional issues, because our jurisdiction extends to all issues in the case. Appeals are not bifurcated under our practice.

The dissent to the contrary notwithstanding, we perceive no “stratagem” on appellant’s part to confer a jurisdiction on this Court which does not exist. Nor do we recognize, tacitly or otherwise, “the lack of our jurisdiction.” The appellant made a decision about points to be preserved for appeal. It had no way of knowing which point or points the decision might turn on. The Court of Appeals was without power to decide some of the points properly preserved. We know of no precedent by which a case could be taken to the Court of Appeals for resolution of some issues and then transferred to this Court for a decision or other issues. The historic and sound rule is that the appeal is properly lodged in the court having jurisdiction over all issues in the case.

The Merits

The respondents argue that Proposition One states clearly that no construction costs may be charged to the ratepayers until the facility is on line and ready to produce electric power. They go on to argue that, by the terms of the statute, construction work which is never incorporated into an operational facility can never be charged for. This latter proposition is by no means so clear as respondents would have it.

It is helpful to review briefly the theory of utility regulation. Utilities, and particularly electric utilities, enjoy natural monopoly in the distribution of services which, under modern conditions, are absolutely necessary for the public. Pace v. City of Hannibal, 680 S.W.2d 944 (Mo. banc 1984). The legislature has shown concern that utilities which return a profit to shareholders, if left unregulated, would be able to exact unconscionable charges from the public, with no competitive pressure to inhibit rate increases. Rates charged by investor-owned utilities, in contrast to charges for other products and services, have long been subject to regulation by the Missouri Public Service Commission.

A helpful discussion of the theory of utility regulation and of the methods of treating costs of construction in progress is found in the opinion of the Supreme Court of New Hampshire in Appeal of Public Service Co. of New Hampshire, 480 A.2d 20 (N.H.1984). The general regulatory pattern discussed in that opinion is essentially the same as ours.

There is a limit to the regulatory power. Rates established by the Commission must not be confiscatory. The utility must be able to recover its proper expenses and also a reasonable return on its prudent investment. The Commission has the corollary authority to scrutinize the expenditures of public utilities to determine whether they are appropriate in the rendition of utility services.

The construction of Callaway I and II was expressly authorized by the Commission. It was undertaken by Union Electric because of its projections of the needs of its customers, present and future. The law commends to the utility decisions as to what facilities are necessary in the service of its customers, subject to the commission’s supervisory authority as exercised in certification and in the rate making process.

As soon as the Callaway project was authorized Union Electric sought to include an allowance for construction work in progress on Callaway I and II in its rate structure and was allowed by the Commission to do so. Proposition One changed all this.

The manifest purpose of Proposition One was to make the utility wait until completion of new construction before including the cost in its rate base, or otherwise recovering its expenditures. Charges for construction work in progress had been expressly authorized by the Commission just a few months earlier. The language contains no express reference to cancellation. There are substantial indications that Proposition One was primarily concerned with timing, and that the possibility of abandonment was not present in the thoughts of the sponsors or of the voters. There was then much discussion in reports of regulatory commission decisions about the treatment of construction work in progress but little case law, judicial or administrative, about allowances for abandoned projects.

Reasons for requiring deferral can be easily perceived. (1) If construction charges are assessed in advance persons who will never have the benefit of the completed facilities such as those who die or move before the facility goes on line, will have to bear a part of the cost. (2) It has been demonstrated that the costs of both Callaway projects were substantially underestimated. If reimbursement is deferred until the facility is on line the Commission may have more effective continuing control. (3) If the utility must wait until construction is completed to obtain reimbursement or return, it may be impelled to complete necessary construction more expeditiously. This enumeration may be far from complete, but it serves to highlight some of the arguments which might be made in favor of legislation such as Proposition One.

The reasons just discussed have no application when proposed construction is abandoned. What we must decide, then, is whether the voters, in enacting Proposition One, intended to decree a forfeiture for any abandoned construction. If the law is read so as to require this result substantial problems ensue. Electric utilities will be reluctant to embark on new construction projects, or with long-range plans, if the prospect of forfeiture looms. Investors will hesitate to stake their money in venture with a controlled return and substantial risk of loss. A utility might be impelled to complete an uneconomic project if it otherwise faced total loss of a substantial investment. Then, finally, constitutional questions are presented if a utility is totally unable to recover a prudent expenditure made in good faith and, in the utility’s view, for the benefit of the ratepayers.

We do not suggest for a moment that the wisdom of Proposition One is any concern of ours. We must apply the statute enacted by the voters unless persuaded that it is unconstitutional. But, in construing the statute, it is not inappropriate to look at the possible effects of alternative constructions, and to read the statute in the context of the established pattern of utility regulation. We should hesitate to mandate a result not explicitly required by the language if invidious consequences may result.

The respondents commend to our attention Appeal of Public Service Co. of New Hampshire, supra, and suggest that the statute there involved is essentially the same as ours. That case involved the al-lowability of costs of abandoned nuclear power plants. The Court held that the cancellation charges could not be allowed. The statute in question (N.H. RSA 378:30-a) (Supp.1981), has some language very similar to the two clauses of § 393.135, but contains additional, and very clear, language as follows:

At no time shall any rates or charges be based upon any costs associated with construction work if said construction work is not completed....

The New Hampshire case supports the appellant’s argument at least as well as it does respondents’. The statute before that court stated in express terms something that our statute does not state. The court was aware of the decision of the Missouri Public Service Commission in this case and pointed to the contrasting position of the Public Utilities Commission of Pennsylvania, in construing a statute which it considered similar to Missouri’s. It considered its own statute clearer than Missouri’s or Pennsylvania’s and said that it had found no other comparable statute. The court also suggested the possibility that the Commission might allow an increase in the utility’s rate of return if of the opinion that the forfeiture provisions might discourage investors.

We are also cited to the case of Office of Consumers’ Counsel v. Public Utilities Commission, 67 Ohio St.2d 153, 423 N.E.2d 820 (1981), in which the Supreme Court of Ohio held that the Public Utilities Commission exceeded its statutory authority in allowing amortization of the utility’s investment in four terminated nuclear power plants. The decision was not based on a statute similar to ours, but rather on the court’s interpretation of the basic regulatory statutes of Ohio. It concluded that cancellation costs were not within the term “cost to the utility of rendering the public utility service for the test period.” The court recognized (l.c. 826) that its holding was contrary to the overwhelming weight of the decisions of utility regulating commissions of other jurisdictions. This opinion is of little help in construing Proposition One. A contrasting case, under a statute which is likewise quite different from ours is In re Abrams v. New York P.S.C., 104 A.D.2d 135, 483 N.Y.S.2d 785 (3d Dept., 1984).

It is argued that the second clause of § 393.135 dispels any confusion or uncertainty about recovering the cost of abandoned construction, by prohibiting charges for services based on “owning, operating, maintaining, or financing any property before it is fully operational.” This clause should be read in the context of the first clause. So read, we believe that it is designed to. cover adhesions to the costs of construction, such as interest on borrowed funds, and not to relate to abandoned construction. Respondents point to the word “before,” but this word logically connotes costs incidental to construction of facilities which are expected to become operational. It is interesting that the New Hampshire statute contains substantially identical language to that just quoted, in addition to the very clear language, absent from our statute, on which that court placed its principal reliance. The legislature of that state apparently considered the added language significant.

We conclude that Proposition One did not have the purpose, and does not have the effect, of divesting the Commission of the authority to make any allowance at all on account of construction which is definitely abandoned. We base our conclusion on the established practice of allowing such charges, absent a statutory command to the contrary, and on the absence from Proposition One of explicit language dealing with abandoned construction.

Our conclusion by no means dictates the allowance of Union Electric’s claims, or even of any part of them. The Commission has taken the position that it utterly lacks power to make any allowance on account of the abandoned Callaway II. We instruct that Proposition One does not disable it. The Commission is now entitled to consider the prudence of the expenditures for Calla-way II, the prudence of its abandonment, the accuracy of cost estimates, and the possibility of salvage value or retrieval, along with the other factors which are appropriate in a rate case. We express no opinion as to how it should exercise its authority.

Our conclusion makes it unnecessary to consider Point II, which alleges unconstitutionality of the statutory construction advocated by the respondents. Point III appears to charge that Proposition One is unconstitutional in all events, but we have determined that Proposition One is not an obstacle to the relief Union Electric seeks, and so pretermit a decision on Point III also.

The judgment of the circuit court is reversed and the case is remanded to the Public Service Commission for further proceedings not inconsistent with the views here expressed.

RENDLEN, C.J., and WELLIVER, HIGGINS and GUNN, JJ., concur.

DONNELLY, J., dissents.

BILLINGS, J., dissents in separate opinion.

BILLINGS, Judge,

dissenting.

By the stratagem of alleging hypothetical constitutional challenges to the validity of statutes, appellant seeks to bypass appellate review by the court of appeals and confer jurisdiction on this Court in what is nothing more and nothing less than a cost-rate dispute.

The principal opinion tacitly recognizes the lack of our jurisdiction but declines to initially shear the alleged constitutional invalidity of the statutes from the cost-rate issue in order for this Court to retain jurisdiction.

The court of appeals has original jurisdiction to review the judgment of the trial court and we should not encourage litigants to circumvent the appellate process by pseudo constitutional attacks on the validity of a statute or constitutional provision.

I dissent and would transfer the case to the court of appeals.

      . This point might be thought to be lacking in merit in the light of Blue Cross Hospital Service, Inc. of Missouri, v. Frappier, 681 S.W.2d 925 (Mo. banc 1984), handed down after the present appeal was filed, but lack of merit in an argument is not a jurisdictional matter unless the argument may be deemed frivolous.

      . The "Points to be Argued” are not artistically framed so as to highlight the constitutional questions, but the argument portions of the brief shows clearly what is contended. The argument is sufficient to found our jurisdiction.

      . Westin Crown Plaza Hotel Co. v. King, 664 S.W.2d 2, 5 (Mo. banc 1984); State Tax Com 'n v. Administrative Hearing Com'n, 641 S.W.2d 69, 73 (Mo. banc 1982).

      . Authority for this proposition stems from Justice Brandéis’ concurring opinion in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 346-48, 56 S.Ct. 466, 480, 482-83, 80 L.Ed. 688 (1936).

      .The Supreme Court of New Hampshire, In re Appeal of Public Service Co. of New Hampshire, 480 A.2d 20 (N.H.1984), recognized that its decision, contrasting somewhat to ours, left substantial questions of constitutional validity unresolved.

      . In Re Union Electric Company, 20 Mo.P.S.C. (N.S.) 592 (1976).

      . The Supreme Court of New Hampshire, in handing down a decision that its statutes precluded recovery of the costs of abandoned construction, specifically held that it would not consider constitutional questions in the proceeding then before it, but would not preclude later consideration. Appeal of Public Service Co. of New Hampshire, supra.

      . In Re Union Electric Co., 25 Mo.P.S.C. (N.S.) 194 (1982).

      . Pennsylvania Public Utility Comm. v. Duquense Light Co., 52 PUR 4th 644 (1983).


source: Caselaw Access Project

author: BLACKMAR, Judge.

license: Public Domain

text:
    BANK BUILDING AND EQUIPMENT CORPORATION OF AMERICA, Appellant, v. DIRECTOR OF REVENUE, Respondent.
    No. 66120.
    Supreme Court of Missouri, En Banc.
    Feb. 26, 1985.
    As Modified April 2, 1985.
    Rehearing Denied April 2, 1985.

      Byron E. Francis, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for respondent.
   BLACKMAR, Judge.

This is another case involving the construction of the Missouri state income tax laws as they relate to transactions having interstate elements.

The taxpayer-appellant is a Delaware corporation with its corporate headquarters in St. Louis. It is a construction company specializing in the design and construction of buildings for financial institutions and health care facilities. The taxpayer has eight divisions, serving different parts of the country. The case before us involves only the central division, based in St. Louis and operating in Missouri and nearby states.

The taxpayer, in computing its Missouri income tax for 1975, 1976 and 1977, elected to use the “single factor” formula authorized by § 143.451, RSMo 1978, reading as follows:

(2) The taxpayer may elect to compute the portion of income from all sources in this state in the following manner:
(a) The income from all sources shall be determined as provided, excluding therefrom the figures for the operation of any bridge connecting this state with another state.
(b) The amount of sales which are transactions wholly in this state shall be added to one half of the amount of sales which are transactions partly within this state and partly without this state, and the amount thus obtained shall be divided by the total sales or in cases where sales do not express the volume of business, the amount of business transacted wholly in this state shall be added to one-half of the amount of business transacted partly in this state and partly outside this state and the amount thus obtained shall be divided by the total amount of business transacted, and the net income shall be multiplied by the fraction thus obtained, to determine the proportion of income to be used to arrive at the amount of Missouri taxable income. The investment or reinvestment of its own funds, or sale of any such investment or reinvestment, shall not be considered as sales or other business transacted for the determination of said fraction.

The taxpayer divided its' revenues into three categories: Consulting, design, and construction. For buildings outside Missouri, it returns consulting and design revenues as income from sales or transactions partly within and partly without the state. It maintains that the portion of its income allocable to construction arises from sources wholly outside the state, and allocates none of this to Missouri. The Director of Revenue challenged its returns filed on this basis, asserting that the income from a particular project should be treated as a unity and could not be broken down among several operations as the taxpayer had done. The taxpayer sought review by the Administrative Hearing Commission, which sustained the Director’s position, concluding that the income from construction was “related to the overall effort asserted by the Central Division located within Missouri.” The taxpayer appeals to this Court.

I.

The taxpayer shows that an issue was made as to the proper allocation of its income for 1974 before the State Tax Commission when that body had jurisdiction to review assessments made by the Director of Revenue. The Commission found that construction income was derived from “transactions wholly outside Missouri.” It asserts that it fully described its operations in the hearing before the Tax Commission, and that there has been no substantial change in its method of doing business between that time and this. We assume for purposes of this opinion that these statements are correct.

The then Director of Revenue did not seek judicial review of the decision of the State Tax Commission as to the 1974 taxes. The taxpayer argues that the Director should be collaterally estopped as to the 1975, 1976 and 1977 taxes by reason of the final decision of the Commission.

We find no authority precisely on point. In Bartlett & Co. Grain v. Director of Revenue, 649 S.W.2d 220, 224-5 (Mo.1983), we held that an administrative determination by one Director of Revenue does not preclude a future director from taking a different position. The Director’s action, however, was not an adjudication.

Both sides cited A.P. Green Refractories v. State Tax Com’n, 621 S.W.2d 340 (Mo.App.1981). There the court took note of the fluid state of tax law and declined to apply the doctrine of collateral estoppel to a case decided on an agreed statement of facts, when a supervening decision of this Court indicated a different view of the law. Cf.

The taxpayer cites Kansas City v. Graybar Electric Co., Inc., 485 S.W.2d 38 (Mo. banc 1972) for the proposition that the doctrine of collateral estoppel applies to tax cases. The Court held there that the judgment did not demonstrate which of the three grounds assigned was determinative, and therefore could not operate as an es-toppel on any of these grounds. The opinion did not reach the issue for which it is cited. Cf. 1 Rest, of Judgments 2d, Sec. 27, Illustration 9.

The Director suggests that collateral es-toppel should not be applied to the decision of an administrative agency, because of that agency’s freedom to modify its policies. See City of Columbia v. Mo. State Bd. of Mediation, 605 S.W.2d 192 (Mo.App.1980), 79 A.L.R.2d 1135.

Suffice it to say for present purposes that an unappealed decision of the State Tax Commission should not operate as an estoppel for future years’ taxes, even though the same facts and legal questions are placed in issue. The Tax Commission plays an important part in the revenue system of the state, but its members are not required to be legally trained. Its review function over deficiencies has now been assigned to the Administrative Hearing Commission, which provides a hearing before a commissioner who must be a member of the bar. It is appropriate to consider the nature of a tribunal in determining the estoppel effect of its rulings. 2 Rest, of Judgment 2d, Comment b, Sec. 83. We can understand a taxpayer’s annoyance at the re-litigation of a point which might appear to be settled, but we do not believe that either the taxpayer or the Director should have a vested interest in a decision of the State Tax Commission for a previous tax year.

II.

We are obliged to sustain the decision of the Administrative Hearing Commission if it is “supported by substantial evidence on the record as a whole.” We conclude that it is so supported.

Counsel for the Director, at the hearing, read a statement from the taxpayer’s annual report for 1974, as follows:

Rather than merely designing an attractive building and then adapting it to the client’s operation, Bank Building works “from the inside out” to plan and create a new or remodeled facility-beginning with an in-depth analysis of client operations and needs. The objective of Bank Building’s service is to provide a completed facility which can achieve optimum business earnings or patient care, having been planned to meet the client’s current and future needs in the most cost-effective manner.

The taxpayer’s principal witness, a executive officer, said that the statement was consistent with his testimony. The statement supports the Commission’s findings.

The taxpayer points out that many, if not most, of its projects were initially solicited by its local salesmen, that the final design is approved by a locally licensed architect, that each project is under the direction of a superintendent who assumes local residence, that decisions about subcontracting are locally made, and that vouchers are locally certified. Balanced against this is the evidence that the consulting and design services are performed by architects based at the division office, that the taxpayer seldom undertakes a construction project in which it does not supply the design, and that the superintendent of the site is subject to directive from the division headquarters. One gets the distinct impression that the “brains” of this specialized operation are located in St. Louis, at least insofar as the Central Division is concerned.

There is no showing of a conflict between the Missouri taxing authorities and those of any other state.

Many cases have dealt with the problem of allocation of income. The closest is International Travel Advisors v. State Tax Com’n, 567 S.W.2d 650 (Mo. banc 1978). (“Intrav”) The taxpayer had a headquarters in Missouri and planned group chartered tours to foreign countries. We held that income from tours which departed from and returned to points outside Missouri nevertheless arose from transactions partly within and partly without the state of Missouri, because the planning and arranging was done from the St. Louis office. This case also involves a persuasive element of central planning and design. “In-trav” supports our conclusion, and it is not necessary to discuss earlier cases.

The Commission properly found that the income was produced by “overall effort” centered in Missouri. It did not have to accept the taxpayer’s segmentation of its operation.

The decision of the Administrative Hearing Commission is affirmed.

All concur.


author: PER CURIAM.

text:
    MISSOURI HEALTH FACILITIES REVIEW COMMITTEE, Plaintiff-Appellant, Excepticon Midwest, Inc., Intervenor- Appellant, v. ADMINISTRATIVE HEARING COMMISSION OF MISSOURI and Charter Medical Corporation, Respondents.
    No. 66347.
    Supreme Court of Missouri, En Banc.
    Feb. 26, 1985.
    As Modified April 2, 1985.
    Rehearing Denied April 2, 1985.
    John Ashcroft, Atty. Gen., Louren Wood, Asst. Atty. Gen., Jefferson City, for plaintiff-appellant.
    Dennis E. Egan, Joseph W. Medved, Kansas City, for intervenor-appellant.
    Jerry W. Venters, Roger K. Toppins, Richard S. Brownlee, III, Jefferson City, for respondents.
    Truman K. Eldridge, Jr., Charles F. Myers, Kansas City, for amicus curiae North Kansas City Memorial Hosp.
    John C. Hannegan, Tracy Mathis, St. Charles, for St. Anthony’s Medical Center.
   ORDER

PER CURIAM.

The Court, being of the opinion that the issue herein is now moot, orders the judgment of the circuit court and the ruling of the Administrative Hearing Commission vacated.

RENDLEN, C.J., WELLIVER, HIGGINS, GUNN, BILLINGS and BLACK-MAR, JJ., and HOUSER, Sr. J., concur.

DONNELLY, J., not sitting.


author: GUNN, Judge. DONNELLY, Judge,

text:
    STATE ex rel. Wanda ESTILL, Relator, v. Honorable Robert A. IANNONE, Judge, Sixteenth Judicial Circuit, Associate Division, Respondent.
    No. 66198.
    Supreme Court of Missouri, En Banc.
    April 2, 1985.

      Steve Hobson, Michael Thompson, Legal Aid of Western Mo., Kansas City, for relator.
    Michael E. Dailey, Richard Ward, George Sharp, Kansas City, for respondent.
   ORIGINAL PROCEEDING IN PROHIBITION

GUNN, Judge.

This is an original proceeding for extraordinary writ. The question presented is whether the relator, convicted in municipal court of violating a city ordinance, is entitled to a trial by jury upon her appeal to the circuit court. We hold that relator is entitled to a jury trial and grant relief by means of peremptory writ of prohibition.

The facts are not in dispute. Relator was arrested on three separate occasions and charged with violating § 26.30.1 of the Code of General Ordinances of Kansas City for trespassing on property owned by the University of Missouri at Kansas City. She subsequently was convicted of all three counts in a consolidated non-jury trial in the Kansas City Municipal Division of the Sixteenth Judicial Circuit.

Following her conviction, relator sought a trial de novo in the circuit court, pursuant to Rule 37.78 and § 479.200, RSMo 1978. The cases were assigned to respondent, an associate circuit judge. After several continuances, the cause was set for trial, and on the trial date the relator’s attorney submitted a written request for a jury trial. That request was denied, and the cause again was continued to permit the relator to seek relief by way of extraordinary writ.

At the outset, it is necessary to distinguish State ex rel. Cole v. Nigro, 471 S.W.2d 933 (Mo.banc 1971), appeal dismissed, 404 U.S. 804, 92 S.Ct. 122, 30 L.Ed.2d 36 (1971), reh’g denied, 404 U.S. 960, 92 S.Ct. 309, 30 L.Ed.2d 278 (1971), which holds that there is no constitutional right to a jury trial in a municipal ordinance violation proceeding. The present case concerns the relator’s right to a jury trial upon appeal, rather than in an initial proceeding. And here no constitutional provisions are addressed. Instead, this Court is satisfied that under the pertinent statute, the rules of procedure and prior decisions, the relator is entitled to a jury trial, and her request for that procedure must be granted.

Our analysis begins with reference to the hoard of appellate decisions which state that upon the docketing of an appeal in the circuit court, the case is governed by the rules of criminal procedure. See e.g., St. Louis County v. Roth, 647 S.W.2d 922, 923 (Mo.App.1983); City of Richmond Heights v. Buehler, 644 S.W.2d 390, 391 (Mo.App.1982); City of Cameron v. Stinson, 633 S.W.2d 437, 439 (Mo.App.1982); City of Mexico v. Merline, 596 S.W.2d 475, 476 (Mo.App.1980); Kansas City v. Rowell, 548 S.W.2d 236, 236-37 (Mo.App.1977). Similarly, Rule 37.84 states that cases appealed from a municipal division to the circuit court “shall be heard, tried and determined de novo in such circuit or other court as though the prosecution had originated in such court.” (Emphasis added). If the rules of criminal procedure are to be employed in a trial de novo on the circuit level, then this must include the right to a trial by jury by reason of criminal procedure Rule 27.01, which states in pertinent part:

(a) All issues of fact in any criminal case shall be tried by a jury to be selected, summoned and returned in the manner prescribed by law, unless trial by jury be waived as provided in this rule.

We note, however, that municipal ordinance violations are more akin to misdemeanors or infractions as designated by §§ 556.016.2 and 556.021, RSMo 1978, vis-a-vis felonies. Therefore, the proper procedure calls for the appellant to request a jury trial, as delineated in § 543.200, RSMo 1978. In other words, trial by jury is not automatic, and if the appellant does not make written demand for a jury trial, the case may be bench tried. As mentioned, the relator did make a request for a jury.

Our ruling in this case is consistent with prior decisions holding that it is error to deny a jury request in a trial de novo on appeal from a municipal court conviction. City of St. Louis v. Walker, 309 S.W.2d 671 (Mo.App.1958), and City of St. Louis v. Moore, 288 S.W.2d 383 (Mo.App.1956). The respondent agrees that the holdings of Walker and Moore are based on an interpretation of statutes and rules extant at that time. But, so argues the respondent, those cases should no longer serve as precedent, since the relevant statutes discussed in those cases have been repealed in favor of more recent legislative enactments.

Respondent contends that the relator’s right to a jury trial has been abrogated due to the legislature’s adoption of § 479.200.2, RSMo 1978, which confers the right of trial de novo in appeals from municipal ordinance convictions but says nothing about a jury trial. That provision reads as follows:

[Ejxcept where there has been a plea of guilty or the case has been tried with a jury, the defendant shall have a right to trial de novo before a circuit judge or upon assignment before an associate circuit judge.

Respondent urges that the abové provision sets forth not only the level to which an appeal may be taken from initial trial but also mandates that the trier of fact on that appeal can only be a circuit judge or associate circuit judge and not a jury. That is not so.

Proper statutory construction requires that the legislative intent and meaning of the words used in a statute are to be derived from the general purposes of the legislation, the condition which was sought to be remedied, as well as the circumstances which existed at the time of the enactment. Sermchief v. Gonzales, 660 S.W.2d 683, 688 (Mo.banc 1983). In this case, the purpose of the legislation and the condition sought to be remedied readily can be determined by reference to our state constitution and to the laws as they existed prior to 1978.

Previously, there were numerous statutes pertaining to appeals from police and municipal courts which were diverse in design. As a part of the structural reorganization of the judiciary, which was mandated by amendment to article V of the Missouri Constitution in 1976, this farrago of statutes was repealed and replaced with § 479.200, RSMo 1978. But, there is no evidence that the enactment of this later provision was intended to do more than consolidate the earlier laws and create some uniformity in the description of the lower courts as well as standardize the procedure to be used in obtaining an appeal from these courts. Mo.Const. art. Y, § 23 specifically preserves the practice and procedure used on appeal in the circuit court:

Until otherwise provided by law, or supreme court rule, the practice, procedure, right to and method of appeal before and from municipal judges shall be as heretofore provided with respect to municipal courts.

In adopting § 479.200, RSMo 1978, the General Assembly made no mention of deleting the right to a jury trial upon appeal from the municipal division. In light of the legislative objective to achieve judicial restructuring, we cannot presume by mere implication that this right to a jury trial has been eliminated.

On behalf of respondent, the argument is forwarded that the innovation of jury procedures in trial de novo appeals for minor offenses asks too much of the judicial department and its participants. However, this is not a new procedure but one adopted and consistently utilized since the Moore decision in 1956. Additionally, it is manifestly more worthy for this Court to perpetuate a procedure, charged as being laborious, than to delete a legislative grant on nothing more than innuendo.

It appears that by denying the relator’s request for a jury trial, the trial court would be acting outside its jurisdiction. Hence, prohibition is the appropriate remedy to be applied. State ex rel. Eggers v. Enright, 609 S.W.2d 381, 382 (Mo.banc 1980); § 530.010, RSMo 1978. “Prohibition will lie where a right to a jury trial is improperly denied.” XLNT Corp. v. Municipal Court of Kansas City, 546 S.W.2d 6, 7 (Mo.banc 1976).

The alternative writ in mandamus heretofore issued is quashed. A rule of prohibition is granted and made peremptory.

RENDLEN, C.J., and WELLIVER, HIGGINS, BILLINGS and BLACKMAR, JJ., concur.

DONNELLY, J., dissents in separate opinion filed.

DONNELLY, Judge,

dissenting.

In State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889, 891 (Mo.banc 1983), this Court held that prohibition will lie to prevent an excess of jurisdiction but “that we should not continue the unfettered use of the writ of prohibition to allow interlocutory review of trial court error.”

In State ex rel. McNary v. Hais, 670 S.W.2d 494, 497 (Mo.banc 1984), this Court held that prohibition will lie where “[r]ela-tors do not have adequate remedy by way of appeal.”

In this case, the trial court has jurisdiction and there is an adequate remedy by way of appeal. In my view, prohibition does not lie.

I respectfully dissent.

      . We recognize that there exists a conceptual difference between the terms "appeal" and "trial de novo." Caselaw, however, uses the terms interchangeably, which we do here for the purpose of convenience. For a discussion see Hloben v. Henry, 660 S.W.2d 431 (Mo.App.1983).

      . Sec. 543.200:
      After the plea of the defendant has been entered, if he plead not guilty, the defendant or prosecuting witness, or prosecuting attorney, may demand a jury; but if no jury be demanded, the case may be tried by the associate circuit judge. In the event a jury trial is requested, the associate circuit judge shall certify the case for assignment and the cause shall be assigned for a trial upon the record in the same manner as provided for civil cases in section 517.520, RSMo.

      . It might also be argued that Rule 27.01, which specifically refers to "criminal” cases, is inapplicable, since prosecutions for municipal ordinance violations are technically civil in nature. City of Cameron v. Stinson, 633 S.W.2d at 439. But, such proceedings have quasi-criminal aspects, and even if they do not rise to the level of a criminal prosecution, they are so closely related, and the consequences are so nearly identical with those of a conviction for a crime, that the rules of criminal procedure have been held applicable. City of Clayton v. Nemours, 237 Mo. App. 167, 164 S.W.2d 935, 938 (1942).

      . Sections 98.025; 98.040.2; 98.280; 98.460; 98.-630, RSMo 1969.


author: HIGGINS, Judge. DONNELLY, Judge,

text:
    STATE ex rel. Timothy A. WOODMANSEE, Relator, v. The Honorable John A. APPELQUIST, Judge of the Circuit Court of Greene County, Missouri, Division II, Thirty-first Judicial Circuit, Respondent.
    No. 65838.
    Supreme Court of Missouri, En Banc.
    April 2, 1985.
    T. Patrick Deaton, Public Defender, Springfield, for relator.
    Richard E. Monroe, Chief Asst. Pros. Atty., Springfield, for respondent.
   HIGGINS, Judge.

Relator was convicted of second degree burglary, received a suspended imposition of sentence and three years probation. Probation was later revoked and he was sentenced to one year in the county jail. After seven months, he was paroled for one year. Near parole completion, a violation was reported to the trial court which then attempted parole revocation. Relator sought a writ of prohibition asserting he had served his one year sentence in jail and on parole. This Court issued its preliminary writ of prohibition and the preliminary writ is made absolute.

The issue is whether time spent on parole granted by a circuit court is credited against the sentence under section 217.-730.1, RSMo Supp.1984, when the circuit court revokes the parole. The court in In Re Green, 657 S.W.2d 743 (Mo.App.1983), decided this issue in the negative. Relator asserts, and this Court agrees, the interpretation accorded the statute in Green was improper.

“The primary rule of statutory construction is to ascertain the intent of the lawmakers from the language used, to give effect to that intent if possible, and to consider words used in the statute in their plain and ordinary meaning.” State v. Kraus, 530 S.W.2d 684, 685 (Mo. banc 1975).

Section 217.730.1 provides:

The period served on parole shall be deemed service of the term of imprisonment and ... the total time served may not exceed the maximum term of sentence.

Section 217.650(4) defines “parole” as “the release of a prisoner to the community by the court or the state board of probation and parole prior to the expiration of his term, subject to conditions imposed by the court or the board and to its supervision.” Respondent, citing Green, argues that despite the definition of parole, section 217.-730.1 applies only to parole given by the Parole Board, and not to judicial parole.

Prior to 1982, there appears to have been a dual system governing paroles — one set of statutes governed what was entitled “Judicial Paroles,” sections 549.058 through 549.197, RSMo 1978, and another set of statutes governing the “State Board of Probation and Parole,” sections 549.205 through 549.310, RSMo 1978. These sections were repealed and replaced in 1982. “Probation and Parole Board, Powers and Duties” are covered in sections 217.650 through 217.730; “Circuit Courts, Probation and Parole” are covered in sections 217.750 through 217.780.

Respondent argues the repeal and subsequent enactment of statutes pertaining to correctional institutions amounted to no more than renumbering and thus a dual system still exists. Examination of the repealed statutes and the new enactments reveals that although most of the substance remained the same, there were also significant changes.

Prior to its repeal, section 549.101, RSMo 1969, gave a court revoking parole or probation discretion to allow credit for all or part of the time the defendant was on parole or probation. In 1979, section 559.-036 replaced 549.101, and authorized such discretion in probation cases with no mention of parole. This was repealed in 1982. Presently, the statutes under the heading of “Circuit Courts, Probation and Parole” contain no reference to such credit in either parole or probation cases. Relator contends that the reason for this absence is that the legislature intended section 217.-730.1 to apply to all paroles.

Relator thus argues the statutes under the heading “Probation and Parole Board, Powers and Duties,” and the statutes under the heading “Circuit Courts, Probation and Parole,” are not mutually exclusive. Support for this argument is found in Laws of Mo., 1982, p. 435, where the statutes were not separated by headings as they appear in Missouri Revised Statutes, the plain meaning of the term “parole”, and in the prevalent role of the Parole Board in judicial parole cases via supervision. There is no indication that these new sections under two different headings are mutually exclusive.

Consideration of all the above leads to the conclusion that the intent of the legislature was to require credit be applied to a sentence for time served on parole — judicial parole or Board parole. To this extent, Green is overruled.

Relator served over seven months in jail, and spent almost a year on parole. His sentence was one year; it has been completed when credited with the time on parole. The circuit court has no jurisdiction to revoke the parole because the sentence has been served.

Accordingly, the preliminary writ of prohibition is made absolute.

RENDLEN, C.J., and WELLIVER, GUNN, BILLINGS and BLACKMAR, JJ., concur.

DONNELLY, J., concurs in separate opinion filed.

DONNELLY, Judge,

concurring.

In State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889, 891 (Mo. banc 1983), this Court held that prohibition will lie to prevent an excess of jurisdiction but “that we should not continue the unfettered use of the writ of prohibition to allow interlocutory review of trial court error.”

In State ex rel. McNary v. Hais, 670 S.W.2d 494, 497 (Mo. banc 1984), this Court held that prohibition will lie where “[r]ela-tors do not have adequate remedy by way of appeal.”

In this case, even if the court has jurisdiction there is no adequate remedy by appeal and, therefore, prohibition will lie.

I concur.


author: BLACKMAR, Judge. DONNELLY, Judge,

text:
    STATE ex rel. State of Missouri, MISSOURI DEPARTMENT OF AGRICULTURE, et al., Relators, v. The Honorable James F. McHENRY, Judge of the Circuit Court, 19th Judicial Circuit, Respondent.
    No. 66078.
    Supreme Court of Missouri, En Banc.
    April 2, 1985.

      Edwin H. Steinmann, Jr., Asst. Atty. Gen., Jefferson City, James F. Gunn, F. Craig King, Jr., St. Louis, for relators.
    Lori J. Levine, Jefferson City, Larry Seckington, Bruce H. Stoltze, Des Moines, Iowa, for respondent.
   BLACKMAR, Judge.

This case presents important questions of sovereign immunity and official immunity in claims based on the Grain Dealer’s Law (Ch. 276, RSMo) and the Missouri Grain Warehouse Law (Ch. 411, RSMo).

IGF Insurance Company is organized under the laws of Iowa. It executed a warehouseman’s bond (§ 411.275) on August 1, 1979 and a Grain Dealer’s bond (§ 276.426) on April 3, 1981 to secure the operations of Ira Paul Smith and Irene Smith, d/b/a Westboro Elevator, Westboro, Missouri.

IGF on October 18, 1982 filed suit in three counts in the Circuit Court of Cole County, Missouri, naming as defendants (1) the State of Missouri, (2) “Missouri Department of Agriculture,” (3) James B. Boillot individually and in his official capacity as Director of the Missouri Department of Agriculture, (4) “Missouri Division of Grain Inspection, Weighing and Warehousing,” and (5) Tommy Hopkins Individually and in his official capacity as Director of the division last named. Count I sought a declaratory judgment “construing the rights and duties under the [warehouseman’s] bond.” Count II sought a similar declaration as to the grain dealer’s bond. Counsel made it clear at oral argument that IGF is trying to avoid liability on the bonds given for the protection of the Smiths’ customers, because of alleged deficiencies in the performances of the state and its officials. Count III seeks money judgment against all defendants in the amount of $113,000 in connection with the warehouse bond, and $84,000 in connection with the Grain Dealer’s bond, together with interest, costs and attorneys’ fees.

The defendants sought a writ of prohibition in the Court of Appeals, Western District, and a provisional rule was issued. Even though the provisional rule extended to the entire action, the state and its agencies do not challenge the declaratory judgment prayer in Counts I and II as to them, but do seek prohibition against the claims made in Count III. The individual defendants ask prohibition as to all counts.

Following briefing and argument before an expanded panel the majority of the Court of Appeals voted to quash the preliminary rule summarily and without opinion. Three judges dissented from the summary disposition, and one disagreed with the result. We granted transfer because of the importance of the case, and now take it as though we had issued our own provisional rule. We make the provisional rule absolute as sought by the defendants.

I.

It is first argued that the trial court, in considering and overruling the motions to dismiss, was acting in the exercise of its jurisdiction, and that any error may be corrected by appeal. State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983) is cited for the proposition that the writ of prohibition is not available to correct the possibly erroneous failure to dismiss a case. The respondent argues that the cases should proceed through the discovery and trial stages.

Morasch should not be mechanically applied to cases in which substantial questions of sovereign immunity or official immunity are presented. “Immunity” connotes not only immunity from judgment but also immunity from suit. State ex rel. New Liberty Hospital District v. Pratt, 687 S.W.2d 184 (Mo. banc 1985); State ex rel. Eli Lilly & Co. v. Gaertner, 619 S.W.2d 761, 763, fn. 5 (Mo.App.1981). Immunity claims have jurisdictional aspects. It is not always satisfactory to leave a case pending against a public agency or a public officer, with prospects for burdensome discovery and trial, simply because the circuit court has overruled a motion to dismiss. There are undoubtedly cases in which the issue of immunity depends on factual issues which cannot be effectively determined short of trial, but there are also cases in which an initial inquiry may demonstrate that immunity exists as a matter of law, so as to lay the foundation for the issuance of an initial writ. The decision is a matter of discretion. It is also appropriate to require a litigant who sues the state or its officers to file a petition demonstrating a viable theory of liability. Sherrill v. Wilson, 653 S.W.2d 661 (Mo. banc 1983).

II.

There is no authority for a suit against the state of Missouri for money damages in the manner sought to be stated in Count III. The Department of Agriculture and the Division of Grain Inspection are agencies of the State of Missouri. If they are suable entities at all, they partake of the state’s sovereign immunity.

The respondent, desperately seeking authority, cites V.S. DiCarlo Construction Co. v. State of Missouri, 485 S.W.2d 52 (Mo.1972). There the legislature had specifically authorized a construction contract. This Court held that the legislature necessarily intended for the state to pay the contract price, and impliedly consented to the liquidation of the contractor’s claim in a judicial proceeding. There was, then, consent to the suit. IGF argues that the statutory requirements for warehouse and grain dealers’ bonds, payable to the State of Missouri for the benefit of persons dealing with the principal, represented a contractual obligation analogous to that of Di-Carlo. The analogy is inappropriate. In DiCarlo the state intended to make payment for services rendered. Here there is no indication whatsoever that the legislature intended for the state to make any payment whatsoever, or that it stand in the shoes of the surety if it be determined that state officials and employees have not performed their duties. The statutory indication is strongly to the contrary. Section 276.546.

IGF next argues that state regulation of warehouses and grain dealers is a “proprietary” rather than a “governmental” function. The proprietary-governmental dichotomy applies only in the law of municipal corporations, and not to activities of the state. The legislature, in § 537.600, RSMo 1978, has mandated the restoration of sovereign immunity as it existed prior to our decision in Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977). We are precluded by the recent legislation from making extensions. Bartley v. Special School District, 649 S.W.2d 864 (Mo. banc 1983).

The regulation here in issue, moreover, is manifestly governmental. The interest of the state in regulating grain marketing facilities was recognized in Munn v. Illinois, 4 Otto 113, 94 U.S. 113, 24 L.Ed. 77 (1876). § 411.012, RSMo 1984 Supp. states that Ch. 411 “constitutes an exercise of state policy and regulatory power for the purpose of enhancing grain production and marketing.” The statutes exist, not purely in the interest of persons in the grain trade, but principally because of the public’s interest in an abundant food supply.

The doctrine of sovereign immunity was designed to protect the public treasury against the kind of claims sought to be maintained here.

The relator limits its assertion of immunity for the state and its agencies only to Count III of the petition. Our absolute writ will be limited to that count, insofar as these defendants are concerned. We of course express no opinion as to whether Counts I and II are properly stated, or as to their substance.

III.

The defendant Boillot is Director of the Department of Agriculture. He is appointed by the governor, subject to confirmation by the Senate, and reports directly to the governor. (Mo. Const., Art. IV, sec. 35). Chapters 276 and 411 expressly name the director as the official responsible for administering the Grain Dealer’s and Warehouse statutes.

Our decisions consistently protect public officers from having their official performance called into question through the medium of private damage suits. Recent cases include Kanagawa v. State, 685 S.W.2d 831 (Mo. banc 1985) (operation of penal institutions); Sherrill v. Wilson, 653 S.W.2d 661 (Mo. banc 1983) (operation of state hospital); Jackson v. Wilson, 581 S.W.2d 39 (Mo.App.1979) (design and construction of state parks).

The respondent seeks to distinguish these cases by asserting that Boillot’s duties under Chapters 276 and 411 are “ministerial.” This contention will not stand analysis. Initial reliance is placed on § 411.271, requiring the director to make examinations and inspections at least annually, and to take action against licensees found not to be in compliance, but IGF’s petition in the trial court states that examinations were made more often than yearly during the times referred to in the petition. The complaint rather, is that Boillot failed to take action asserted to be indicated by the inspections, in violation of the provisions of § 411.271.4, which respondent characterizes as “mandatory.”

The statutes, however, afford the director wide discretion. He may require an examiner to remain at the warehouse (411.070.1(5)); may take steps to require additional bond; (411.281, RSMo 1978); or may “at his discretion,” suspend, annul, revoke or refuse to renew” the license (411.283.4, RSMo 1978). This latter action contemplates a hearing before the director and judicial review. (411.283.5, RSMo 1978). The statutes must be read as a whole. So read, they manifestly call for the exercise of the director’s judgment as to the action to be taken in a particular situation. He may surely consider the degree of violation shown, the availability of other facilities in the area, the urgency of the situation, and other appropriate circumstances. The use of “shall” in § 411.271.4 statutes does not change the discretionary nature of the director’s authority. Cf. State ex rel. Rogersville Reorganized School District v. Holmes, 253 S.W.2d 402 (Mo. banc 1952).

Chapter 276 likewise manifests discretion on the part of the director. One alternative is to bring an action in court in the name of the state. (276.406.2(7.).) The director may require additional bond (276.-436.4.), seek injunctive relief (276.486.), or, on verified complaint, suspend or revoke a grain dealer’s license (276.491.) This list of alternatives is not complete.

The respondent cites the case of State ex rel. Funk v. Turner, 328 Mo. 604, 42 S.W.2d 594 (1931) for the proposition that the duties of the (then) banking department in regard to bank examination are “ministerial,” and argues that Chapters 276 and 411 are comparable. The barest examination of that case shows that it is of no benefit to the respondent but, by contrast, supports the relator’s position very strongly. Judge Westhues’ opinion makes it very clear that the only mandatory requirement was that of periodic examination, with inquiry into the items detailed in the statute. The Court specifically stated that the length of time occupied in examination and the character and extent of the examination are matters within the discretion of the banking department. The bottom line was that a verdict for the plaintiff was reversed on a holding that a bank examiner was not subject to civil action for failure to discover embezzlement. The court said 42 S.W.2d at p. 600:

The position of the officers of the banking department would indeed be a perilous one if they were to be held liable to all subsequent depositors after an examination, on the mere showing of a complete audit, which disclosed forgeries or embezzlements to have existed at the time the examination was made. It would be unwise and unjust to establish such a rule of law....

IGF specifically alleges that the individual defendants should have furnished it copies of the periodic inspections and reports. Nothing in the statute requires that these be furnished, or serves as basis for civil action if reports are not furnished. Disclosure, rather, is a matter of discretion requiring written application and determination by the director that the applicant is entitled to receive the information. §§ 276.551.1, 411.180.3.

It is also argued that the Director is obliged to furnish bond (§ 411.-050), and that this requirement connotes liability to persons damaged by his failure to perform his statutory duties. The bond exists only to secure legal obligations otherwise established. Motley v. Callaway County, 149 S.W.2d 875 (Mo.1941). The bond is not insurance. The surety is free to proceed against the principal for indemnity. It follows that the same principles of immunity apply, whether or not there is a bond. It might be argued that the Director could be liable on his bond if he failed to account for monies coming into his hands or knowingly allowed a warehouse to function without any bond whatsoever. The bond does not enlarge liability for performance of discretionary duties, or narrow the scope of official immunity.

Respondent argues that Hopkins is a “mere employee” who is not entitled to official immunity. This contention is refuted by Kanagawa v. State, supra; Sherrill v. Wilson, supra; State ex rel. Funk v. Turner, supra, and many other cases. Kanagawa also reaffirms the long line of authority holding that the doctrine of re-spondeat superior does not apply to make public officials liable for the acts of their subordinates.

The other problem with the claim against Hopkins is that IGF relies solely on the statutory enumeration of duties as a basis for liability. Although Hopkins as a division director is an immediate subordinate of the director, his office is not mentioned in the governing statutes. No statutory duties, then, are imposed on him or his office, and the petition is silent as to his present participation. Nothing in the plaintiffs claim in the trial court shows any basis for holding Hopkins liable individually-

Nor is there any basis for allowing Counts I and II to pend as to Boillot and Hopkins. Boillot is no longer in office, and Hopkins has no statutory duties.

We of course are obliged to construe the petition liberally, accepting all properly pleaded allegations as true. Having done so, we conclude that it is appropriate to make the writ of prohibition absolute in the respects in which the trial court’s jurisdiction is challenged, in order to protect the state and its functionaries from possibly burdensome litigation in which the plaintiff has demonstrated no basis for recovery, and to afford them the substantial benefits of official and sovereign immunity. The petition seeks to establish a judicial scrutiny over an executive department and over its director. This scrutiny is the responsibility of the executive and the legislative branches.

The provisional rule in prohibition is made absolute as to Boillot and Hopkins. As to the other defendants it is made absolute as to Count III but quashed as to Counts I and II because not advanced by the relator as to these counts.

RENDLEN, C.J., and WELLIVER, HIGGINS, GUNN and BILLINGS, JJ., concur.

DONNELLY, J., concurs in separate opinion filed.

DONNELLY, Judge,

concurring.

In State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889, 891 (Mo. banc 1983), this Court held that prohibition will lie to prevent an excess of jurisdiction but “that we should not continue the unfettered use of the writ of prohibition to allow interlocutory review of trial court error.”

In State ex rel. McNary v. Hais, 670 S.W.2d 494, 497 (Mo. banc 1984), this Court held that prohibition will lie where “[r]ela-tors do not have adequate remedy by way of appeal.”

In this case, sovereign immunity raises the question of jurisdiction and prohibition will lie.

I concur.

      . Both chapters were extensively amended in 1980 and 1981. References are to the 1984 Supplement to RSMo unless otherwise indicated.

      . Boillot did not take office under this present appointment until January 12, 1981. The petition refers to events during 1979 and 1980, during which time John G. Runyon was director. Boillot left office January 25, 1985.

      . Hopkins did not assume his present position until November of 1981.

      .Under § 411.275-7, a surety desiring to cancel a warehouseman’s bond must give 90 days notice to the director, in writing. The cancellation does not affect liability already accrued, or liability accruing within the 90-day period. Section 276.426-4 imposes a similar requirement as to grain dealer’s bonds. There is no statement in the petition that such notice was given as to either bond.

      . State ex rel. New Liberty Hospital District v. Pratt, 687 S.W.2d 184 (Mo. banc 1985). A school district enjoys sovereign immunity, and there is no need to invoke the proprietary-governmental analysis. Rennie v. Belleview School District, 521 S.W.2d 423 (Mo. banc 1975); Smith v. Consolidated School District, 408 S.W.2d 50 (Mo. banc 1966). Counties also enjoy sovereign immunity. Wood v. County of Jackson, 463 S.W.2d 834 (Mo.1971) — plaintiff injured in an accident on a bridge; Payne v. County of Jackson, 484 S.W.2d 483 (Mo.1972).

      . Section 411.271.4 reads as follows:
      Upon completion of any examination which reveals a failure to comply with this chapter or regulations promulgated hereunder, the director or any warehouse auditor, within a reasonable time, shall present a written discrepancy report to the warehouseman, his employee or agent. The report shall specify the areas of noncompliance and shall give a specific period within which corrective action is to be taken. A report of that corrective action shall be sent to the director. If after further examination, the discrepancy still exists, the director shall suspend the warehouseman’s license until the warehouseman has corrected the discrepancy.


text:
    STATE ex rel. NEW LIBERTY HOSPITAL DISTRICT, Relator, v. The Honorable Stephen R. PRATT, Judge of the Circuit Court of Clay County, Respondent.
    No. 66481.
    Supreme Court of Missouri, En Banc.
    April 2, 1985.

      Ronald R. McMillin, Jefferson City, Myron S. Silverman, Kansas City, for relator.
    J.C. Hambrick, Jr., David B. Sexton, Jane Pansing Brown, Kansas City, for respondent.
   GUNN, Judge.

By way of prohibition, relator New Liberty Hospital District asserts sovereign immunity as the basis for prohibiting respondent from proceeding in a tort action against it.

The underlying tort action was brought against the hospital district and a physician. The hospital district was charged with actual and vicarious negligence in the treatment of a hospital patient. The hospital district’s motion to dismiss the action on the ground of sovereign immunity was denied by the respondent, and relief was sought and obtained from this Court by means of a preliminary rule in prohibition. We now make our preliminary rule absolute.

Preluding disquisition of sovereign immunity, we note that relator New Liberty Hospital District, operating a facility known as Liberty Hospital, is a governmental entity organized under Chapter 206, RSMo. Chapter 206 establishes hospital districts and provides that each created under its aegis “shall be a body corporate and political subdivision of the state.” § 206.-010.2, RSMo 1978. Among the powers bestowed upon a hospital district is the authority to establish hospital facilities and maintain them in such a way as “to render the use of the hospital of the greatest benefit to the greatest number.” § 206.-110, RSMo Cum.Supp.1984. The powers granted to hospital districts are described by the statute as “governmental.” Id.

Now to the sovereign immunity issue: Sovereign immunity was reinstated by the legislature, following its abrogation by this Court in Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977); § 537.600, RSMo 1978. Since its reinstatement, sovereign immunity has been the rule for all public entities unless a certain prescribed exception is applicable. Bartley v. Special School District of St. Louis County, 649 S.W.2d 864 (Mo. banc 1983). Nevertheless, respondent urges a variety of reasons for which sovereign immunity does not shield relator from liability.

Respondent’s chief argument is that the district’s claim of sovereign immunity should be precluded by the application of the governmental-proprietary distinction. The traditional rule, however, permits the application of the governmental-proprietary distinction (and the preclusion of immunity in the latter circumstance) only as to municipalities. Beiser v. Parkway School District, 589 S.W.2d 277 (Mo. banc 1979); St. Joseph Light & Power Co. v. Kaw Valley Tunneling, Inc., 589 S.W.2d 260 (Mo. banc 1979); Page v. Metropolitan St. Louis Sewer District, 377 S.W.2d 348 (Mo. 1964); Cullor v. Jackson Township, 249 S.W.2d 393 (Mo.1952). Any other public entity which “operates under the police power of the state in the interest of the public health, safety and welfare ... is in effect an arm of the state exercising exclusively governmental functions,” Page, 377 S.W.2d at 353, and is therefore immune from liability for neglect in the performance of those functions.

The hospital district in the present case was created to fill the sole function of maintaining a hospital, a function which promotes the health and welfare of the people. The basis for the claimed liability was the performance of this function. The hospital district is therefore clothed with the full immunity enjoyed by the state, and the governmental-proprietary distinction is inapplicable.

Even if the governmental-proprietary function were to be employed, the operation of a hospital by a city, county or similar public corporation entity is a governmental function. Schroeder v. City of St. Louis, 360 Mo. 293, 228 S.W.2d 677 (1950); Zummo v. Kansas City, 285 Mo. 222, 225 S.W. 934 (1920); Bailey v. City of St. Louis, 578 S.W.2d 279, 280 (Mo.App.1979) (city ambulance); Dugan v. Kansas City, 373 S.W.2d 175 (Mo.App.1963). Contrary to respondent’s suggestion, it is immaterial that the potential plaintiff was a paying patient. Schroeder, 228 S.W.2d at 678. The governmental character of operating a hospital does not evaporate if the public entity charges for its services.

Respondent also suggests that the statutes authorizing the creation of hospital districts contain a statutory waiver of sovereign immunity for suits against those entities. The claimed waiver consists of the statement in § 206.010.2, RSMo 1978, that a hospital district “may sue and be sued” in its own name. But it is a fundamental maxim that statutory provisions that purport to waive sovereign immunity must be strictly construed. Bartley, supra, 649 S.W.2d at 868; Charles v. Spradling, 524 S.W.2d 820, 823 (Mo. banc 1975).

In the present case, the statute gives no indication that the legislature intended for hospital districts to be liable in tort. It is obvious that although public entities are protected by sovereign immunity from claims sounding in tort they are nevertheless liable for debts legitimately incurred. See Todd v. Curators of University of Missouri, 347 Mo. 460, 147 S.W.2d 1063 (1941) (Holding that statutory “may sue and be sued” provision does not authorize suit for negligence against a public corporation performing governmental functions. That provision pertains to other kinds of actions). The reasonable explanation of the legislature’s intent in using the “may sue and be sued” language is that it intended thereby merely to empower creditors and other proper claimants to sue the hospital district in its own name. Such language does not authorize a tort suit against the governmental entity for negligence. Page v. Metropolitan St. Louis Sewer District, 377 S.W.2d at 352; Light v. Lang, 539 S.W.2d 795, 800 (Mo.App.1976).

Respondent also contends that the hospital district must be estopped from asserting its immunity because it has acted as though it were a private hospital. This argument rests upon the unfairness of interposing sovereign immunity as a bar to a suit between a patient and a hospital in which the patient had no reason to expect the existence of such a bar when the choice of hospitals was made. In essence, this is no more than an argument that the doctrine of sovereign immunity is unfair, because rarely do potential plaintiffs know, or much less frequently consider, the possibility that a state entity with which they come in contact will be immune in tort. Nevertheless, in light of the legislature’s reinstatement of sovereign immunity, the question of fairness has been definitively removed from legitimate consideration.

The residuum of respondent’s argument is that representations made by the hospital and its administrators caused an equitable breach in the hospital district’s immunity. However, sovereign immunity cannot be breached in whatever fashion without the state’s consent, and such consent must flow from the legislature and not from the state’s agents, officers or employees. State ex rel. Eagleton v. Hall, 389 S.W.2d 798, 801-02 (Mo.banc 1965); Kleban v. Morris, 363 Mo. 7, 247 S.W.2d 832, 836 (1952); Fowler v. Board of Regents, 637 S.W.2d at 354.

Thus, the relator has its absolute and impenetrable defense in the doctrine of sovereign immunity. The profligacy in taking time and money for the ritual of trial and appeal in such case is therefore apparent.

Under the circumstances of this case in which appeal fails to afford adequate relief, prohibition is the appropriate remedy to forbear patently unwarranted and expensive litigation, inconvenience and waste of time and talent. State ex rel. McNary v. Hais, 670 S.W.2d 494, 497 (Mo. banc 1984); State ex rel. T.J.H. v. Bills, 504 S.W.2d 76, 79 (Mo.banc 1974); State ex rel. Hamilton v. Dalton, 652 S.W.2d 237, 239 (Mo.App.1983); State ex rel. Sisters of St. Mary v. Campbell, 511 S.W.2d 141, 148-49 (Mo.App.1974).

The preliminary rule in prohibition is therefore made absolute.

RENDLEN, C.J., and WELLIVER, HIGGINS, BILLINGS and BLACKMAR, JJ., concur.

DONNELLY, J., concurs in separate opinion filed.

DONNELLY, Judge,

concurring.

In State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889, 891 (Mo.banc 1983), this Court held that prohibition will lie to prevent an excess of jurisdiction but “that we should not continue the unfettered use of the writ of prohibition to allow interlocutory review of trial court error.”

In State ex rel. McNary v. Hais, 670 S.W.2d 494, 497 (Mo.banc 1984), this Court held that prohibition will lie where “[r]ela-tors do not have adequate remedy by way of appeal.”

In this case, sovereign immunity raises the question of jurisdiction and prohibition will lie.

I concur.

      . In State ex rel. Allen v. Barker, 581 S.W.2d 818 (Mo.banc 1979), this Court permitted plaintiff in a libel suit against a school district to amend his petition following dismissal to aver facts sufficient to show the proprietary character of the complained-of acts. This Court’s opinion does not address the applicability of the governmental-proprietary distinction to school districts. We recognize that the court of appeals has read this case to authorize the application of this distinction to school districts. Gabbett v. Pike County Memorial Hosp., 675 S.W.2d 950, 951 (Mo.App. 1984) (in a malpractice action, court of appeals upholds sustaining of motion for summary judgment in favor of county hospital on ground of sovereign immunity); Fowler v. Board of Regents, 637 S.W.2d 352 (Mo.App.1982); Johnson v. Carthell, 631 S.W.2d 923, 926 (Mo.App.1982); Allen v. Salina Broadcasting, 630 S.W.2d 225, 227 (Mo.App.1982). However, in this situation, we need not address either the existence or the propriety of such a deviation from the traditional rule.

      . State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo.banc 1983), referred to in Judge Don-nelly’s concurring opinion to this case, relies substantially on California law to stress that there should not be unfettered use of prohibition for interlocutory review of trial court error. And as Judge Donnelly notes, the result reached in this case is fully congruent with the law of California in applying writs of prohibition to instances in which the defense of sovereign immunity is a prevailing issue.
      In County of Sacramento v. Superior Court of Sacramento County, 8 Cal.3d 479, 503 P.2d 1382, 105 Cal.Rptr. 374 (banc 1972), the specific question was raised whether prohibition was the appropriate remedy in a sovereign immunity case. The California Supreme Court’s direct answer to that question—and so pertinent to the issue in this case—was as follows:

        Yes. Prohibition is an appropriate remedy where, as here, it is desirable that an important jurisdictional question presented by the defense of sovereign immunity from suit should be speedily determined. (Citations omitted).

        Id. at 480, 503 P.2d 1382, 105 Cal.Rptr. 374.


author: HIGGINS, Judge. BLACKMAR, Judge,

text:
    STATE of Missouri, Plaintiff-Respondent, v. Leonard R. HOPKINS, Defendant-Appellant.
    No. 66298.
    Supreme Court of Missouri, En Banc.
    April 2, 1985.

      Debra Buie Arnold, St. Louis, for defendant-appellant.
    David C. Mason, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   HIGGINS, Judge.

Leonard Hopkins, a persistent offender, was convicted by a jury of manslaughter, Count I, and first degree assault in Counts II and III after shooting three people, killing one and injuring the other two. The jury assessed his punishment at fifteen years, Count I; life imprisonment, Count II; and a concurrent fifteen-year term on Count III. After affirmance in the court of appeals, this Court transferred the case to examine whether the trial court abused its discretion by overruling defendant’s challenge for cause of Venireman McKay during voir dire, thus forcing him to use a peremptory strike to remove the prospective juror. Reversed and remanded.

“In determining the qualifications of a prospective juror, the trial court has very wide discretion, and the court’s ruling will not be disturbed on appeal unless it is clearly against the evidence and constitutes a clear abuse of discretion.” State v. Treadway, 558 S.W.2d 646, 649 (Mo. banc 1977), cert. denied, 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978).

Both of Venireman McKay’s sons had been on the St. Louis Police Department. One son was killed in the line of duty while executing a search warrant twelve years prior to defendant’s trial. The other son moved to Michigan to work on a police department in a low-crime resort area at his family’s insistence.

The following is from the voir dire examination of Venireman McKay:

MS. LEISENRING (defense counsel): Now, your son who was killed in the line of duty executing a search warrant? VENIREMAN McKAY: Yeah, I guess so. All I know is that they busted into an apartment house on Waterman.
MS. LEISENRING: And you believe it was a drug raid.
VENIREMAN McKAY: That’s what the paper said.
MS. LEISENRING: And it was a Shoot Out and your son was killed by one of the men?
VENIREMAN McKAY: Who was in the apartment, yes.
MS. LEISENRING: Okay. Was anybody else arrested and charged in connection with this incident?
VENIREMAN McKAY: Yes, everybody in the apartment was arrested.
MS. LEISENRING: Okay. Let me ask you this, were you satisfied with the way that matter was handled, the subsequent arrest of the other people that had been in the apartment?
VENIREMAN McKAY: I don’t believe everybody else even got a sentence out of it.
MS. LEISENRING: How do you feel? VENIREMAN McKAY: The only one that was hurt was the boy he killed. MS. LEISENRING: How do you feel about that, sir?
VENIREMAN McKAY: I think somebody should have paid a little bit.
* * * ⅜! ⅛ ⅜
MS. LEISENRING: Do you think it’s possible that if you were chosen as a juror in this case, which the charge is Homicide, Capital Murder, your son was killed, do you think it’s possible that sitting here through a two or three day trial, being sequestered, having really nothing else on your mind, being cut off from your outside ties, that it’s possible that it may bring up feelings of bitterness or lingering anger that you may have about your son’s death?
VENIREMAN McKAY: I can’t tell you what’s going to happen.... It might, might not. I don’t know. I try to forget it really, but there are a lot of things I see on the T.V., in the paper, what have you, that brings it all back. Just recently, only last month was the anniversary, in February. Well, my wife and I both had a terrible time this past month, normally do.
⅜ ⅝ ⅜ ⅜ ⅜ sjs
MS. LEISENRING: As to whether or not you think there is a possibility that being chosen as a juror in this case and being, you know, sitting here in the box listening to all the evidence might jostle, arouse some of those feelings, the sadness, the sorrow, the anger that you experienced in relation to your son’s death.
VENIREMAN McKAY: I would say definitely, sure, there is a possibility.
MS. LEISENRING: Okay. And do you think there’s a possibility that then the end result is that it could affect your ability to render a fair and impartial verdict in this case?
VENIREMAN McKAY: It might. Like I said before, I’d try not to, but I don’t know what the possibilities are.
MR. BAUR (prosecutor): Okay. If after listening to all the evidence you felt that the defendant had not been proven guilty beyond a reasonable doubt, would you be able to return a verdict of not guilty?
VENIREMAN McKAY: Like I said before, I would hope to, yes.
MR. BAUR: Okay. You would be able to follow the Court’s Instructions? VENIREMAN McKAY: I hope so.
>jc ⅜< * sjs ⅜ *
THE COURT: Now, the questions asked by counsel for the defendant was properly trying to elicit from you whether at this point you are free of any prejudice against the defendant ... and ... you indicated there was a possibility it would revive some memories. But what I want to ask is even if it revived memories, could you base your verdict solely on the evidence and the Instructions.
VENIREMAN McKAY: I certainly would try.
THE COURT: All right.
VENIREMAN McKAY: I can’t say what I'm going to do. I know what I want to do, but I can’t tell you what the possibilities are going to be. Like the lawyer just asked me, when we get into the trial, will it bring back things like memories of what happened. Well, yeah, there’s a great possibility that can happen. Right now I have nothing.

An accused must be afforded a full panel of qualified jurors before he is required to expend his peremptory challenges; denial by a trial court of a legitimate request by an accused to excuse for cause a partial or prejudiced venireperson constitutes reversible error. State v. Thompson, 541 S.W.2d 16 (Mo.App.1976); State v. Lovell, 506 S.W.2d 441 (Mo. banc 1974).

In determining when a challenge for cause should be sustained, each case must be judged on its facts. State v. Harris, 425 S.W.2d 148, 155 (Mo.1968). “Errors in the exclusion of potential jurors should always be made on the side of caution.” State v. Carter, 544 S.W.2d 334, 338 (Mo.App.1976).

A relationship to a police officer alone is not a basis for challenging a juror for cause, State v. Eaton, 504 S.W.2d 12, 17 (Mo.1973); State v. Boyd, 643 S.W.2d 825, 829 (Mo.App.1982); a relationship to someone who has experienced a violent crime is not sufficient reason by itself to challenge a juror for cause. State v. Brown, 660 S.W.2d 694 (Mo. banc 1983); State v. Smith, 649 S.W.2d 417 (Mo. banc 1983), cert. denied, — U.S. —, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983); State v. Underwood, 642 S.W.2d 658 (Mo.App.1982). It is when these relationships combine with other factors to indicate a lack of impartiality that a challenge for cause must be sustained. See State v. Land, 478 S.W.2d 290 (Mo.1972); State v. Holliman, 529 S.W.2d 932 (Mo.App.1975).

Examination of the voir dire of Venireman McKay, reveals not only a relationship to policemen and a relationship to a victim of a violent crime, Capital Murder, but also a prospective juror of integrity— struggling with uncertainty as to his own ability to be impartial in this case where the defendant was charged with Capital Murder. He indicated he wanted and hoped to be impartial. At the same time, he spoke of lingering thoughts of his son, his feelings that “somebody should have paid a little bit,” and that the anniversary of his son’s death had been but one month prior to voir dire and was a particularly upsetting time.

Not once did Venireman McKay unequivocally state he could try the case impartially; at most, he said he would “try” to be impartial. In these circumstances, judicial discretion required the challenge for cause be sustained and Venireman McKay replaced by another from the pool of readily available jurors. Failure to do so constituted reversible error. Lovell at 444.

The judgment is reversed and the cause is remanded for a new trial.

RENDLEN, C.J., and WELLIVER, GUNN, BILLINGS and DONNELLY, JJ., concur.

BLACKMAR, J., concurs in separate opinion filed.

BLACKMAR, Judge,

concurring.

I concur, and write separately simply to express concern about the many cases presented to our Court and the Court of Appeals in which a juror indicates doubt about his or her ability to function impartially, and is nevertheless continued on the panel tendered to counsel for strikes. In the typical case the trial judge or the prosecutor will ask questions until the juror gives assurance of efforts of impartiality. The suspicion remains that the juror’s initial reaction persists, and that the assurances are only what might be expected from interrogation by a high authority figure.

Trial judges should fully sustain challenges to jurors who indicate reservations about their impartiality. Replacement jurors are easily available in the metropolitan areas, and it should not be difficult to ensure adequate supply of jurors in other parts of the state.

I regret the necessity for reversal of a conviction of a persistent offender on serious charges, in which there seems to be no other substantial claim of error, but agree with the analysis in the principal opinion demonstrating that the challenged juror never gave an answer which was free from reservation.


author: BILLINGS, Judge. BLACKMAR, Judge,

text:
    James J. DAKE and Velva Fausett, Plaintiffs-Appellants, v. Eldon TUELL and Robin Hubbard, Defendants-Respondents.
    No. 66541.
    Supreme Court of Missouri, En Banc.
    April 2, 1985.

      John E. Chick, Jr., Kansas City, for plaintiffs-appellants.
    Eldon Tuell, Robin Hubbard, pro se.
    Michael E. Kaemmerer, Thomas W. McCarthy, Diana K. Wieland, St. Louis, for amicus curiae Missouri Merchants & Ma-nuf. Ass’n.
    W. James Foland, William E. Quirk, Kansas City, for amicus curiae Westmo Def. Lawyers Ass’n.
    Paul Schroeder, St. Louis, for amicus curiae Missouri Hosp. Ass’n.
   BILLINGS, Judge.

The sole issue in this case is whether discharged at will employees can maintain a suit for wrongful discharge against their former employers by cloaking their claims in the misty shroud of prima facie tort. The trial court dismissed plaintiffs’ petitions for failure to state a cause of action. We affirm.

Defendants Eldon Tuell and Robin Hubbard are the owners of a Lowrey Organ Center where plaintiffs were employed. Plaintiff Dake was employed as a manager and plaintiff Fausett as an organ instructor. In June of 1982, plaintiffs were fired after informing defendants that other employees at the store were making fraudulent misrepresentations to customers.

Plaintiffs each brought suit against defendants in the Circuit Court of Clay County — alleging in count one of each petition that their dismissals were intended to cause injury and were without justification and in reckless disregard of plaintiffs’ rights. The second count in each petition repeated these allegations, along with the additional averment that defendants had discharged plaintiffs in complete disregard of their state and federal constitutional rights.

Defendants moved for dismissal under Rule 55.27(a)(6) — arguing that both petitions had failed to state claims upon which relief could be granted. This motion was sustained, and plaintiffs sought review in the Missouri Court of Appeals, Western District. The court of appeals held that plaintiffs had stated claims upon which relief could be granted and reversed the trial court’s dismissal orders. However, a dissenting judge transferred the case to this Court because he viewed the principal opinion as being in conflict with prior decisions of this Court. We now decide the case as if originally appealed to this Court. Mo. Const, art. V, § 10.

In Missouri it is firmly established that absent a contrary statutory provision, an at will employee cannot maintain an action for wrongful discharge against his former employer. Amaan v. City of Eureka, 615 S.W.2d 414, 415 (Mo. banc 1981), cert. denied, 454 U.S. 1084, 102 S.Ct. 642, 70 L.Ed.2d 619 (1981). Accord, Howe v. St. Louis Union Trust Company, 392 S.W.2d 625, 627 (Mo.1965). See also Carr v. Montgomery Ward & Company, 363 S.W.2d 571, 574 (Mo.1963).

Here, plaintiffs would have us render near impotent this long standing legal principle — by establishing a rule that would permit an at will employee to bring an action for wrongful discharge under the guise of the prima facie tort doctrine. This we decline to do.

Under Missouri’s employment at will doctrine an employer can discharge— for cause or without cause — an at will employee who does not otherwise fall within the protective reach of a contrary statutory provision and still not be subject to liability for wrongful discharge. Amaan v. City of Eureka, supra, at 415. Therefore, it follows that unless there is a contrary statutory provision upon which to base his claim, an at will employee must set forth in his petition for wrongful discharge “the essential elements of a valid contract, and a discharge in violation thereof.” Maddock v. Lewis, 386 S.W.2d 406, 409 (Mo.1965), cert. denied, 381 U.S. 929, 85 S.Ct. 1569, 14 L.Ed.2d 688 (1965).

In the present case, it is conceded by all that plaintiffs were at will employees. Their pleadings are completely barren of any allegations concerning the existence of an employment contract and a discharge in violation of its provisions. Nor have plaintiffs attempted to ground their claims on a contrary statutory provision. Absent such allegations, the petitions do not invoke substantive principles of law sufficient to entitle them to relief in a Missouri court of law.

Judgments affirmed.

RENDLEN, C.J., and WELLIVER, HIGGINS, GUNN and DONNELLY, JJ., concur.

BLACKMAR, J., concurs in result in separate opinion filed.

BLACKMAR, Judge,

concurring in result.

The alleged reason for the discharge of plaintiff Dake is set forth in his petition as follows:

Plaintiff had reported improper sales practices and fraudulent misrepresentations being made by another employee of the defendants.

Plaintiff Fausett’s petition contains similar allegations.

I agree that the alleged discharges for “whistle blowing” should not give rise to a claim for damages for wrongful termination. Such a holding is supported by the great weight of modern authority. See Krauskopf, “Employment Discharge: Survey and Critique of the Modern At Will Rule,” 51 UMKC Law Review 190, 237-239. The principal opinion need go no further than this.

The principal opinion, however, purports to establish an ironclad rule that there may be no action for wrongful termination in the absence of contract or statute. I do not believe that it is desirable to circumscribe future courts in this manner. Professor Krauskopf, in the article cited above, sets forth numerous exceptions to the “common law rule” of discharge at will. I want to be free to consider these situations as they arise.

In Lucas v. Brown and Root, Inc., 736 F.2d 1202 (8th Cir.1984) Judge Richard Arnold analyzed Arkansas law, which seems to maintain the “at will” rule just as ours does, and held that a complaint alleging that the female plaintiff was discharged because she refused to sleep with her foreman stated a claim. To the extent that the sweeping pronouncements of the principal opinion would preclude a claim such as this under our law, I disagree.

The principal opinion cites Amaan v. City of Eureka, 615 S.W.2d 414 (Mo. banc 1981), as the recent authoritative case on the point. Amaan was grossly overwritten. There the record showed that a police officer was discharged because of a reduction in force. All that needed to be said was that the law did not guarantee him continued employment.

Our Court has been very willing to consider modern developments in the law of torts and to overrule or distinguish earlier cases which seemed to stand in the way. See, e.g., Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo.1969) and Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434 (Mo. banc 1984), products liability; Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 599 (Mo. banc 1969), charitable immunity; Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), comparative negligence; Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977), sovereign immunity. This list is not complete. The principal opinion may tend to inhibit the common law process with regard to wrongful termination by its unnecessarily broad pronouncements. I hope that future courts realize that it is authoritative only on the facts now before us.

      . The court of appeals, for purposes of appellate review, ordered the two cases consolidated.

      . See generally, Maddock v. Lewis, 386 S.W.2d 406, 409 (Mo.1965), cert. denied, 381 U.S. 929, 85 S.Ct. 1569, 14 L.Ed.2d 688 (1965); Culver v. Kern, 354 Mo. 1158, 193 S.W.2d 602 (1946). Martucci, Recent Developments in Missouri: Labor and Employment Law, 52 U.M.K.C.L.Rev. 501 (1984); Heinsz, The Assault On The Employment At Will Doctrine: Management Considerations, 48 Mo.L.Rev. 855 (1983); and Note, Fire At Will: An Analysis of the Missouri At Will Employment Doctrine, 25 St. Louis U.LJ. 845 (1982).

      . Section 287.780, RSMo 1978 gives an employee — including an at will employee — a cause of action for damages against his former employer if the employee has been discharged or discriminated against for exercising the rights afforded him under Missouri Workman’s Compensation Act. Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273 (Mo. banc 1984), Arie v. Intertherm, Inc., 648 S.W.2d 142, 149 (Mo.App.1983).
      Missouri’s Service Letter Statute, § 290.140, RSMo Supp.1984, gives the employees of corporations that employ seven or more workers a cause of action if the following elements exist: (1) the employee has worked for the employer for at least 90 days; (2) the employee requested in writing by certified mail a service letter and made a specific reference to the statute; (3) the employer fails to comply with the requirements of the statute or fails to supply a service letter within the prescribed time period.

      . The prima facie tort doctrine was first recognized in Missouri in Porter v. Crawford & Co., 611 S.W.2d 265 (Mo.App.1980). Porter, however, was an action brought against an insur-anee carrier who had stopped payment on a settlement draft before giving prior notice to the payee; it was not a suit for wrongful discharge brought by an at will employee.
      In Lundberg v. Prudential Insurance Company of America, 661 S.W.2d 667 (Mo.App.1983), the plaintiff, an at will employee, attempted to rely on a prima facie tort theory to sue his former employer for wrongful discharge. At the close of plaintiffs evidence, the defendant successfully moved for a directed verdict — which was affirmed on appeal. Plaintiffs argue that Lund-berg implicitly recognizes the right of a discharged at will employee to rely upon the prima facie tort doctrine to state a viable cause of action against the former employer. Their reliance on Lundberg is misplaced.
      It should be noted that in deciding the narrow question before it — whether the plaintiffs evidence warranted submitting the case to the jury on a prima facie tort theory — the court of appeals expressed serious doubts about the wisdom of allowing an at will employee to freely avail himself of a prima facie tort theory in circumvention of the well-established employment at will doctrine. The court of appeals recognized that "judicial invasion of management decisions and impingement upon agreed terms of employment emerge, when as here, the prima facie tort doctrine is resorted to by a discharged employee to impose liability against an employer where the employment is terminable at will." 661 S.W.2d at 671. In light of our decision today, the doubts expressed in Lund-berg should no longer remain.

      . It makes no difference that the legislature, in its wisdom, superseded the Court’s opinion. That is its privilege in the constitutional scheme.


text:
    INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION, a corporation, Appellant, v. Eugene SMITH, Respondent.
    No. 66706.
    Supreme Court of Missouri, En Banc.
    April 2, 1985.

      S. Francis Baldwin, Charles Alan Seigel, H. Kent Munson, St. Louis, for appellant.
    Thomas P. Howe, Joseph R. Burcke, Clayton, for respondent.
   PER CURIAM.

The trial court dismissed, without prejudice, International Telephone and Telegraph Corporation’s [ITT] petition for a declaratory judgment against Eugene Smith. The Missouri Court of Appeals, Eastern District, ordered the appeal transferred to this Court.

From the record, briefs, and argument of the parties, we are of the opinion that ITT seeks an advisory opinion from this Court for the use and benefit of the federal judiciary in the suit now pending between the same parties in that forum. An agreement with the federal courts never having been consummated and our Rules not having been changed or modified to provide for advisory opinions to federal courts, we deem it unwise to abandon our long-established practice of refusing to render advisory opinions upon the request of party litigants.

Appeal dismissed.

WELLIVER, HIGGINS, GUNN, BILLINGS, BLACKMAR and DONNELLY, JJ., concur.

RENDLEN, C.J., not participating.

      . The Eastern District noted that the same parties, subject matter and issues are pending in the United States District Court, Eastern District of Missouri, the suit having been removed by ITT from the Circuit Court of the City of St. Louis; that following an adverse ruling by the federal court, ITT filed this proceeding and the federal court stayed its action pending the result in this case; further, that Dake v. Tuell, 687 S.W.2d 191 (Mo.1985), handed down this date, was pending before this Court and that the Western District’s resolution of Dake conflicted with prior decisions of this Court.