author: COMBS, Judge.

text:
    James L. AVRITT, Executor under the Will of Maxie Avritt, Deceased, Appellant, v. H.E. O’DANIEL, Kobert Thompson, G.L. Thompson and New Farmers Tobacco Warehouse, Inc., Appellees. H.E. O’DANIEL, Kobert Thompson, G.L. Thompson and New Farmers Tobacco Warehouse, Inc., Cross-Appellants, v. James L. AVRITT, Executor under the Will of Maxie Avritt, Deceased, Cross-Appellees.
    Court of Appeals of Kentucky.
    May 3, 1985.
    Robert Spragens, Jr., Lebanon, for appellant.
    H. Edward O’Daniel, Jr., Springfield, for appellees.
    Before COMBS, DUNN and MILLER, JJ.
   COMBS, Judge.

This is an appeal and cross-appeal from the “summary judgment” of the Marion Circuit Court interpreting and enforcing a corporate by-law restriction on the transfer of shares.

As a preliminary matter, we note that this is not an appeal from a summary judgment but an appeal from a trial and decision by the court, since the lower court made findings of fact and conclusions of law. Therefore, our review is limited by the clearly erroneous standard of CR 52.01.

The New Farmers Tobacco Warehouse of Lebanon, Inc. was organized in 1962 by five incorporators as equal owners. The company issued a total of 300 shares of stock valued at $400,000.00, with each in-corporator receiving 60 shares worth $80,-000.00. Although the by-laws restricted the inter vivos transfer of shares and required surviving shareholders to purchase a deceased shareholder’s stock for $80,-000.00, there was no provision for an increase or decrease in relative ownership and no stated per-share value. In 1982, one of the shareholders transferred his 60 shares to the other four in exchange for $90,000.00. After the sale, each remaining stockholder held 75 shares of the company’s stock but the by-law relating to sale and redemption was not amended to reflect the change. Thus, a literal reading of the by-law would net a deceased shareholder’s estate $80,000.00 for 60 shares prior to the 1982 sale and $80,000.00 for 75 shares after the sale.

Appellant’s decedent, a shareholder in the company, died in 1983 and the surviving shareholders offered appellant $80,-000.00 for the deceased’s entire interest in the corporation. Appellant refused the tender, reasoning that the by-laws valued 60 shares at $80,000.00 so decedent’s 75 shares were worth $100,000.00. This lawsuit erupted when the parties were unable to agree on a redemption price.

After considering all the evidence, thé trial court upheld the disputed by-law and construed it as requiring decedent’s estate to surrender 60 shares of stock in return for $80,000.00. The court decided the remaining 15 shares belonged to the estate, subject to the restrictions set out in the by-laws.

Neither party is satisfied with the trial court’s ruling. Appellant claims the court should have awarded his decedent’s estate $100,000.00 plus pre-judgment interest while appellees think they are entitled to purchase all of the deceased’s stock for $80,000.00.

We disagree with the parties and conclude that the lower court reached a fair and equitable result under the circumstances. The by-law in question is extremely ambiguous and would easily support either party’s proposed interpretation, but the lower court recognized that appellant’s construction would expand the survivors’ obligations while appellees would undervalue decedent’s stock. Under these circumstances, the trial court’s decision to adopt the middle ground was not clearly erroneous.

Likewise, the lower court was not required to award appellant pre-judgment interest. The allowance of interest is a matter within the judicial discretion of the court, Curtis v. Campbell, Ky., 336 S.W.2d 355 (1960), and we cannot say that the trial court abused its discretion in denying appellant’s motion.

The judgment of the Marion Circuit Court is affirmed.

All concur.


source: Caselaw Access Project

author: REYNOLDS, Judge.

license: Public Domain

text:
    James E. SHAW, Appellant, v. Sheila SEWARD, Appellee.
    Court of Appeals of Kentucky.
    May 3, 1985.

      Hon. Carl J. Melcher, Northern Kentucky Legal Aid Soc., Inc., Covington, for appellant.
    John R. Elfers, Kenton County Atty., Martin J. Huelsmann, Asst. Kenton County Atty., Covington, for appellee.
    Before GUDGEL, LESTER and REYNOLDS, JJ.
   REYNOLDS, Judge.

This case is before us on discretionary review of the Kenton Circuit Court’s order affirming a paternity determination against the appellant. Appellant, an indigent putative father, by an agreed narrative statement, admits that no facts are in contention, but asserts that his due process and equal protection rights were violated by the court’s refusal to order the county or the Commonwealth to pay for HLA Blood Tests, and by the court’s use of a “preponderance of evidence” burden of proof instead of a “clear and convincing” one. Further, the appellant argues that the ap-pellee’s cause of action should be barred by a retroactive application of the current four-year statute of limitations. That statute replaced the three-year statute of limitations which had been previously declared unconstitutional.

As support for his argument that his Fourteenth Amendment rights were violated by the court’s failure to provide a paternity blood test at no expense to him, the appellant cites the case of Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981). In Streater, the United States Supreme Court determined that an indigent’s due process rights were violated by a Connecticut court’s refusal to provide paternity blood tests to the indigent free of any charge. Thus, the Streater case initially appears to be controlling.

However, the appellee argues that the Streater case was decided on its specific facts, and as such is inapplicable in this case. As a basis for distinguishing Streater, the appellee notes that the mother in Streater was required, under penalty of criminal prosecution, to institute the paternity suit; that the state, Connecticut, automatically became a party to the suit; that Connecticut’s evidentiary rules required the putative father to prove his innocence by evidence other than his own testimony; that the paternity actions in Connecticut have “quasi-criminal” overtones; and that Connecticut only allows the use of blood tests as exculpatory evidence and required the party who requested those tests to pay for them. We agree with the appellee that these considerations prevent an automatic application of Streater as controlling; however, we do find it necessary to analyze the appellant’s claim in the context of Streater. See Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218, 222 (1976) (wherein our Supreme Court recognized that the United States Supreme Court “is the final authority in the field of federal constitutional jurisprudence”.)

In the case sub judice, the appellant asserts a violation of his due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution. The evaluation of due process issues is governed by Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), which requires the analysis of three elements: the private interests at stake; the risk that the challenged procedures will lead to erroneous results and the probable value of suggested procedures in preventing erroneous results; and the government interests effected. Streater, 452 U.S. at 13, 101 S.Ct. at 2209.

Applying this analysis, the Streater Court found the private interests to be composed of the putative father’s pecuniary interest, his liberty interest which arose from risk of criminal sanctions for noncompliance, and the creation of a beneficial parent-child relationship. Id. These interests all mitigate in favor of the most accurate determination of paternity, which the Court found to be provided by the availability and use of blood test results. This finding was apparent in the Court’s review of the second element of the El-dridge analysis.

In its analysis of the second element, the Court noted that blood tests were clearly evidence of valuable probative quality providing procedural safeguards for correct determinations. Id. at 14, 101 S.Ct. at 2209. Such safeguards were not available in the absence of these tests due to the usual absence of witnesses, the self-interest coloring of testimony, and the Connecticut evidentiary rule. Id. Finally, after noting the state’s somewhat conflicting interest of assuring a proper determination of persons legally responsible for child support and of concern for moderating financial costs, the Court determined, especially as the state was entitled to a 75% reimbursement of its expenses from the federal government, that the court’s refusal to provide the appellant the paternity blood test at no expense to him was a violation of his due process rights. Id. at 16-17, 101 S.Ct. at 2210-2211. The Court then suggested a manner of allocating the expense; the state should advance the cost with the cost ultimately being taxed to the parties. Id. at 15, 101 S.Ct. at 2210.

Given this analytical framework, we may now address the situation presented to us. However, initially it is essential to note that there is sufficient state involvement to bring into play the guarantees of the Fourteenth Amendment. Though the appellee was not subject to criminal sanctions, she was, as an AFDC recipient, required to bring the paternity suit, for the Commonwealth is required to seek support from the father if it participates in the federal program. See generally 904 KAR 2:020. Ap-pellee, again by virtue of being an AFDC recipient, automatically assigned the monies received as support to the state agency involved upon her acceptance into the AFDC program. 904 KAR 2:020 § 8(1). Further, the county attorney prosecutes all paternity suits. KRS 406.021. Therefore, we find sufficient state involvement.

Applying the Eldridge analysis to the case sub judice and comparing that analysis to Streater, we believe that the appellant’s due process rights were violated by the court’s refusal to provide the blood test free of expense to him. Clearly, the private interests at stake are identical with those presented in the Streater case. The pecuniary interest is obvious, for though no support was set at the time of the paternity determination, there is the possibility of future support obligations arising. Appellant’s liberty interest is also involved in that he could, at some point, be criminally prosecuted for his nonsupport of the children, and at that time be unable to challenge the paternity determination as it would be res judicata. Finally, as is always the case in a paternity suit, it is imperative that a proper determination be made so as to provide a basis for the development of a beneficial parent-child relationship. Additionally, it is clear that the interests of the Commonwealth are identical to those of the state involved in Streater.

Therefore, the only true distinction between Streater and the instant case occurs in the second element of the Eldridge analysis. This sole distinction is the absence in Kentucky of Connecticut’s evidentiary rule which required the putative father to provide evidence other than his testimony if he is to prevail. In light of the other factors involved in the second element of the analysis, this distinction is insufficient to depart from the Court’s opinion in Streater.

The factors involved in our contested procedure are the absence of nonparty witnesses, the self-interest coloring the testimony, and the inability of an indigent putative father to obtain an HLA Blood Test due to the court’s refusal to provide the test at no expense to him. These factors clearly illustrate the existence of a considerable risk of an erroneous determination. Given our recognition that blood tests are the most, if not the only, reliable source of truth in paternity cases, see Perry v. Commonwealth, ex rel. Kessinger, Ky., 652 S.W.2d 655, 660 (1983), it cannot be denied that provision of free blood tests to an indigent putative father would substantially decrease the risk of an erroneous determination, a result which would benefit all parties involved.

Thus the Eldridge analysis yields the conclusion in the instant case that the trial court’s failure to provide an indigent putative father blood tests at no expense to him violated that individual’s Fourteenth Amendment rights. “[D]ue process requires at a minimum that absent a countervailing state interest of overruling significance, persons forced to settle claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.” Streater, 452 U.S. at 5-6, 101 S.Ct. at 2205-2206 citing Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 785, 28 L.Ed.2d 113 (1971). Such opportunity was not provided here; therefore, the appellant is entitled to a new trial with blood tests provided him at no cost. After reaching this decision, we would note that we are joined in our determination that a due process violation results in such a situation by all courts which have decided the issue since Streater. See Peterson v. Moffitt ex rel. Dept. of Human Resources, 253 Ga. 253, 319 S.E.2d 449 (1984); Kennedy v. Wood, Ind.App., 439 N.E.2d 1367 (1982); Anderson v. Jacobs, 68 Ohio St.2d 67, 428 N.E.2d 419 (1981); Johnson v. Brinker, 326 Pa.Super. 464, 474 A.2d 333 (1984); see also Ex Parte Calloway, 456 So.2d 306, 307 (Ala.Civ.App.1983); State ex rel. Fox v. Hicks, 69 Or.App. 348, 686 P.2d 431 (1984).

Further we would suggest, as did the United States Supreme Court, that the expenses in providing the tests be advanced by the Commonwealth, to be taxed later as costs to the parties. Cf. Smothers v. Lewis, Ky., 672 S.W.2d 62, 64 (1984) (wherein it was recognized that our courts are “vested with certain ‘inherent’ powers to do that which is reasonably necessary for the administration of justice within the scope of their jurisdiction.”) It may also be possible, depending upon the circumstances, to require the defendant to subsequently reimburse the state for these expenses. M. v. S., 169 N.J.Super. 209, 404 A.2d 653 (1979).

Though finding that the appellant’s due process rights were violated and reversal is required, we shall proceed to address the appellant’s other arguments in order to give guidance to the trial court, and to avoid any unnecessary litigation of those issues. In reviewing those arguments, we find no error. The proper burden of proof is a “preponderance of the evidence”, and as the complaint was filed prior to the enactment of the present statute of limitations it is not barred by that statute.

Appellant grounds his assertion that a “clear and convincing” burden of proof should apply in paternity cases, despite their civil nature, see Commonwealth ex rel. Baker v. Bondie, 277 Ky. 207, 126 S.W.2d 148 (1939), on the recent United States Supreme Court decision of Santosky v. Kramer, 455 U.S. 745,102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), wherein a “clear and convincing” standard is required to terminate parental rights. While we recognize that the creation of a parent-child relationship is of equal weight to the termination of parental rights, different interests and factors are involved in the adjudication of each action.

These differences are sufficient to render Santosky distinguishable. “[D]ue process is ‘flexible’ and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). (Emphasis added.)

The burden of proof to be applied in a particular action must satisfy due process and requires “a straight-forward consideration of the factors identified in Eldridge ...” Santosky, 455 U.S., at 754, 102 S.Ct. at 1395. The Santosky court in applying the Eldridge analysis found the private interests involved and a decreased risk of erroneous determination to outweigh the state’s interests and require a clear and convincing standard. We are not of the same inclination after applying the El-dridge analysis to the distinct factors involved in a paternity action.

The private interests at stake in a paternity action which would be effected by the burden of proof are somewhat in conflict. While the putative father has a pecuniary and liberty interest effected, the mother in a paternity action also has a pecuniary interest effected which is directly in conflict with that of the father’s. However, the creation of a beneficial parent-child relationship is the most significant interest and within this relationship the child’s interest is paramount. Streater, 452 U.S. at 13 n. 9,101 S.Ct. at 2209 n. 9. This interest is obviously best served by the procedure which is most likely to achieve a correct result.

The procedure which would be most likely to ensure a correct result is the subject of inquiry of the second element of the Eldridge analysis. Given the nature of the evidence commonly presented in a paternity action, i.e. the self-interested testimony of the parties and the exculpatory quality of blood test, see Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Fam.L.Q. 247 (Fall 1976), we do not believe a “clear and convincing” standard would decrease the likelihood of an erroneous determination. In fact, it is quite possible that the likelihood of erroneous determination would be increased by a “clear and convincing” standard. Thus the second element mitigates in favor of the current procedure, a "preponderance of evidence” standard.

Given the Commonwealth’s interest in both a proper determination and economical litigation, both of which are best served by the current procedure, the application of Eldridge analysis yields the conclusion that a “preponderance of evidence” standard satisfies due process. Therefore, the court did not err in this regard. Nor did it err as to the statute of limitations issue presented to it.

The statute of limitations issue comes before us in a unique posture. At the time this suit was filed a three-year statute of limitations was effective, and this defense was raised by the appellant. However, trial of this case was postponed in deference to the Kentucky Supreme Court’s consideration of the constitutionality of that three-year statute. Subsequently, that statute was declared unconstitutional. Commonwealth ex reí. Lepard v. Young, Ky., 666 S.W.2d 735 (1983). The case then proceeded on the merits and, from the record before us, the issue of the action being barred by the statute of limitations was not raised again until the present time.

The argument on this issue as it is presented to us acknowledges that the three-year statute was unconstitutional and inapplicable as a bar to this suit; but, as the legislature almost immediately enacted the current four-year statute, it is clear that the legislature intended that a statute of limitations should apply to these actions and that this period should be four years. Thus the appellant requests us to apply the statute retroactively.

While such action most certainly entails some due process problems, we need not consider those problems. Retroactive application of legislation absent clear legislative intent favoring that application is impermissible. Roberts v. Hickman County Fiscal Court, Ky., 481 S.W.2d 279 (1972). We are not cognizant of any such intent and therefore will not apply the statute retroactively. Nor do we consider it proper for us to address any other issue of time limitations to a paternity action as we are not presented with those issues.

The judgment of the Kenton Circuit Court is affirmed in part and reversed in part and the case is remanded for a new trial consistent with this opinion.

All concur.

      . It has been brought to our attention that, as of the fall of 1984, the Commonwealth has paid for these tests in AFDC cases.

      . At the time of the appeal of this case to the circuit court, the legislature had yet to enact the current four-year statute.

      . Other cases involving issues that relate to the statute of limitations applicable to paternity actions have been granted discretionary review by this court and we would suggest postponing the new trial until those issues have been determined.


author: HIGGINS, Judge. BLACKMAR, J.,

text:
    STATE of Missouri, Plaintiff-Respondent, v. William NICHOLSON, Defendant-Appellant. STATE of Missouri, Plaintiff-Respondent, v. Floyd LITTLE, Defendant-Appellant.
    Nos. 66215, 66253.
    Supreme Court of Missouri, En Banc.
    April 30, 1985.
    Frank A. Anzalone, Antoinett G. Kirsch, Clayton, for defendant-appellant.
    John Ashcroft, Atty. Gen., Margaret Jones, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   HIGGINS, Judge.

Floyd Little and William Nicholson were convicted by a jury of forcible rape, Count I; sodomy, Counts II and III; and assault first degree, Count IV. The jury assessed punishment for Little at fifteen years on Counts I, II and III, to run concurrently, and ten years on Count IV to run consecutively; and for Nicholson at fifteen years on Counts I, II and III, to run concurrently, and fifteen years on Count IV to run consecutively. Following affirmance by the court of appeals, this Court granted transfer to determine whether the trial court committed reversible error by unsolicited comments on the appellate process. Reversed and remanded.

After giving the applicable Missouri Approved Instructions for submission of these cases to the jury, and after counsel’s closing arguments, the trial court made these comments:

If you have any question, it has to be written out and signed by the foreperson. The chances are you’re going to get an answer which will say, “The Court is not permitted to answer the question.” That will be one answer. The other answer will be, “Please be guided by the Court’s instructions.” And the jury throws up its hands and says, “That wasn’t any answer to the question.” Well, the reason you get those kinds of answers from me anyway, is because a Judge is never supposed to influence a jury on what verdict to reach, and if I give you any other answer, it might be claimed that I tried to influence your verdict. Also, the appellate courts in this State, the higher courts, are very conservative about what they will let a Judge do in answer to a jury’s question, and many cases have been reversed and had to be tried all over again because a Judge answered a question by a jury.

A recess followed before the jury retired during which counsel made appropriate objection and moved for mistrial. The motion for new trial reiterated the allegation of error.

Appellant contends these comments were prejudicial instructions to the jury not contained in the Missouri Approved Instructions for Criminal Cases; implied to the jurors that the court believed a verdict of guilty was both proper and expected and that caution should be exercised to make sure the expected verdict would not be later overturned; improperly informed the jury of defendant’s right to appeal thus inviting the jurors to abdicate their primary responsibility of fact finding; and improperly inhibited the jurors in their deliberations and may have prevented them from asking questions which they felt were proper.

Respondent argues the trial court’s comments strengthened the jury’s sense of duty and responsibility for decision making.

A trial court’s comments on the ease of overturning a jury verdict in an appellate court simply because a jury’s question is answered, can hardly be seen as strengthening the jury’s sense of duty. “[S]uch a statement cause[s] the jurors to relax the caution and deliberation in making a finding of fact or facts from the evidence in accordance with their duty, and to surrender, in whole or in part, their functions and responsibilities as fact finders, and to make a finding without attaching to themselves the odium of error, with a thought that a mistake could be corrected by another authority in the process of appeal or review.” 5 A.L.R.3d 974, 977 (1966).

No one can tell what the effect will be of bringing the matter of review by appellate courts to the attention of the jury. State v. Cross, 594 S.W.2d 609 (Mo. banc 1980). References to appeals can “weaken the jurors’ sense of obligation in the performance of their duties.” People v. Johnson, 284 N.Y. 182, 30 N.E.2d 465 (1940). See also U.S. v. Fiorito, 300 F.2d 424 (7th Cir.1962); Price v. State, 149 Ga.App. 397, 254 S.E.2d 512 (1979). This is not a case where the court’s comment was prompted by a question from the jury; or by a suggestion from defense counsel, addressed to the attorneys, and with the purpose of making the written record clear, as in State v. Brookshire, 353 S.W.2d 681 (Mo.1962), cert. denied, 371 U.S. 67, 83 S.Ct. 155, 9 L.Ed.2d 119. Nor is this a case where the court refers to the possibility of appeal and then instructs the jury to disregard its comment. See Hernandez v. State, 507 S.W.2d 209 (Tex.Crim.App.1974).

Delivery by the trial court of lengthy explanations, talks, comments and chats, invites confusion and disagreement later among the jurors. Cross, 594 S.W.2d at 610. The trial court’s comments here were not as lengthy as those in Cross, nor as those in Duebelbeis v. Dohack, 615 S.W.2d 488 (Mo.App.1981), and State v. Behrman, 613 S.W.2d 666 (Mo.App.1981). Nevertheless, their effect was prejudicial. The implication was that questions by the jury would result in a reversal — and quite possibly that the verdict which would be reversed was a “guilty” one. The jury was dissuaded from asking questions that might have affected its verdict; and the jury was on notice that whatever verdict it reached could be changed. Such notice has been held improper where the comment went to the possibility of parole or probation. State v. Cornett, 381 S.W.2d 878, 881 (Mo. banc 1964); State v. Lewis, 443 S.W.2d 186, 190 (Mo.1969). See State v. Byrne, 595 S.W.2d 301, 307 (Mo.App.1979), cert. denied, 449 U.S. 951, 101 S.Ct. 355, 66 L.Ed.2d 215 (1980).

No doubt the trial court was trying to inform the jury and meant no harm; nevertheless, the comments here constituted reversible error.

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

WELLIVER, BILLINGS and DONNELLY, JJ., concur.

BLACKMAR, J., dissents in separate opinion filed.

RENDLEN, C.J., and GUNN, J., dissent and concur in separate dissenting opinion of BLACKMAR, J.

BLACKMAR, J.,

dissenting.

The trial judge’s remarks are improper, under the standard of State v. Cross, 594 S.W.2d 609 (Mo. banc 1980), but I am totally unable to see how his words could possibly indicate that he anticipated or expected a verdict of guilty, or how there was any prejudice. The jury should not be . surprised at the judge’s indication that he would comply with the standards set by the appellate courts.

Although the cases present substantive factual issues, I cannot see how the remarks make verdicts of guilty more likely. No other reversible error appears and I would affirm the judgments of conviction.


author: GUNN, Judge. GUNN, Judge, WELLIVER, Judge,

text:
    Richard LYNN d/b/a Kansas City Excursion, Appellant, v. DIRECTOR OF REVENUE, Respondent.
    No. 66130.
    Supreme Court of Missouri, En Banc.
    April 30, 1985.

      Robert A. Sundblad, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Melodie A. Powell, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

This case involves review of a decision of the Administrative Hearing Commission affirming the Director of Revenue’s assessments of sales tax deficiencies and penalties against the taxpayer-petitioner for the years 1976 through 1979. This Court has jurisdiction by virtue of Mo. Const, art. V, § 3. The issues are whether: 1) the taxpayer’s operations are interstate commerce and, hence, exempt from sales taxes under § 144.030.1, RSMo Cum.Supp.1984; 2) statements of Department of Revenue officials estop the Director of Revenue from assessing sales taxes and penalties against the taxpayer; 3) the taxpayer’s good faith actions preclude imposition of penalties; and 4) the statute of limitations applies to tax assessments prior to 1978.

We affirm the decision of the Administrative Hearing Commission affirming the assessments of sales taxes and penalties against the taxpayer.

The taxpayer owns and operates a vessel and barge through which he conducts an excursion-sightseeing business on the Missouri River in the vicinity of Kansas City. For a fare, passengers ride on the river and may dine and dance on the way. Although the vessel traverses into Kansas as the navigational channel requires, regular operations call for passengers to embark and disembark from the same point, which is in Missouri. Admission fees for the excursions are collected in Missouri, and charter contracts are approved at the taxpayer’s home office which also is in Missouri.

In 1967, the taxpayer was first contacted by Department of Revenue employees concerning a possible liability for sales taxes on admission fees for excursions. His attorney was ultimately advised that the taxpayer’s operation was exempt.

The taxpayer had no further contact with the Department of Revenue regarding sales tax until 1976 when his books were audited and he received a sales tax assessment for the two-year period of April 1, 1974 through March 31, 1976. Again, the taxpayer requested counsel to inquire into his tax liability. A Revenue Department employee in Kansas City then gave an opinion that the state had waived the right to collect taxes but attached the caveat that verification from Jefferson City would be required. The taxpayer took no further action, nor did he appeal the 1974-76 assessment. Neither did he file tax returns or collect sales tax. This inaction was contrary to his counsel’s advice to “prepare himself” in order to avoid legal dispute, for it appeared that payment of sales tax would be sought.

In 1980, the taxpayer’s business records were again audited and assessment placed for the period from January 1, 1976 through December 31, 1979. Asserting interstate commerce as basis for exemption, the taxpayer made an unavailing appeal of this latter assessment to the Commission. Appeal from the Administrative Hearing Commission’s ruling has followed to this Court.

The first issue concerns the matter of interstate commerce. Section 144.030.1, RSMo Cum.Supp.1984, specifically provides that sales in interstate commerce are exempt from state sales tax. The taxpayer contends that its operations are part of interstate commerce and, hence, exempt under § 144.030.1. The Director of Revenue argues otherwise.

Coincidentally, in asserting their respective positions, the taxpayer and the Director rely, in certain respects, on City of St. Louis v. Streckfus, 605 S.W.2d 70 (Mo. banc 1974), appeal dismissed, 419 U.S. 810, 95 S.Ct. 24, 42 L.Ed.2d 37 (1974), a case which outwardly seems to provide the clear answer for this case. It does not.

In Streckfus, the operator of the excursion boat Admiral claimed exemption from a City of St. Louis license fee on coin operated amusement devices on the boat, contending its operations involved interstate commerce. The Admiral’s operations, similar to those of the vessel in this case, involved non-stop sightseeing tours on the Mississippi River from St. Louis. There was only incidental traversing in another state’s waters, and all aspects of the excursions were connected with Missouri.

In Streckfus, this Court found the Admiral’s operations to be interstate commerce: “The transportation of passengers in this case by boat on a boundary river in a continuous non-stop journey from and to the same point in Missouri during which the boat crosses the boundary line into and traverses the waters of Illinois is interstate commerce.” Id. at 73-74. The interstate commerce holding of Streckfus is founded on Central Greyhound Lines, Inc. v. Mealey, 334 U.S. 653, 68 S.Ct. 1260, 92 L.Ed. 1633 (1948), which disallows local interference with interstate commerce by the device euphemistically referred to as “local control.”

Streckfus, however, does not afford the taxpayer the relief he seeks. The Director of Revenue properly argues that under Streckfus, the interstate character of the excursion vessel’s operations and tourist activities do not present an insuperable barrier to local regulation nor impose an undue burden upon interstate commerce. In this regard, the local regulations upheld in Streckfus are consistent with Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977), reh’g denied, 430 U.S. 976, 97 S.Ct. 1669, 52 L.Ed.2d 371 (1977), which holds that the Commerce Clause does not absolutely forbid local regulation of interstate commerce when there is a substantial nexus with the taxing state.

Commerce clause aside, there is a substantial basis for affirming the Administrative Hearing Commission. It appears that Fostaire Harbor, Inc. v. Missouri Director of Revenue, 679 S.W.2d 272, 273 (Mo. banc 1984) is directly on point with the issues here presented.

In Fostaire, a taxpayer challenged the assessment of sales tax on the admission fees he charged for sightseeing tours by helicopter. The helicopter flights which began and ended at a barge moored in the Mississippi River Were structured to provide the passengers with a bird’s eye view of the historic sights of St. Louis. This Court held that the helicopter flights “come under the description of a place of amusement, and the fees paid for such a tour are subject to sales tax.” 679 S.W.2d at 273.

The excursions provided by the taxpayer in this case are within the same category as the helicopter tours involved in Fostaire. Passengers do not board the vessel with the expectation that they will be carried to another port by the end of the voyage. The sole objective of boarding the vessel is for personal recreation and diversion. The use of the taxpayer’s vessel and barge is not “transportation.” Its use is for entertainment purposes, and it therefore falls within the ambit of Fostaire. But cf., Bob-Lo Excursion Co. v. Michigan, supra, note 1.

For the purposes of this case, it does not matter whether the taxpayer’s services are considered transportation or otherwise interstate commerce. The business of transporting passengers is not what is being taxed. The object of the taxation in this case is the admission fee charged for a place of amusement or recreation. Although admission fees to a place of amusement and items sold therein are retail sales, City of Springfield v. Director of Revenue, 659 S.W.2d 782, (Mo. banc 1983); St. Louis Country Club v. Administrative Hearing Commission, 657 S.W.2d 614 (Mo. banc 1983), the fees charged are not retail sale transactions “made in interstate commerce.” Curtis Publishing Co. v. Bates, 363 Mo. 287, 250 S.W.2d 521, 523 (1952). Instead, the admission fees are purely local transactions.

The obligation to pay for the excursions arise solely in Missouri. On regularly scheduled tours, passengers purchase tickets as they board the taxpayer’s vessel while it is moored in Missouri. All contracts and deposits for chartered tours are sent. to the home office in Missouri for acceptance. The taxpayer may occasionally collect the final portion of a fare while on the Kansas side of the Missouri river, but the duty to pay for the fare arises before the vessel leaves the Missouri-based dock. It is clear that the admission fees charged by the taxpayer are solely Missouri retail sales, and, therefore, the exemption provided in § 144.030.1, RSMo. Cum. Supp.1984, does not apply.

The taxpayer next argues that the statements of two Department of Revenue employees serve as basis for asserting the doctrine of estoppel against back taxes and penalties. The first such statement allegedly was made in 1967, advising that the taxpayer’s operations were exempt from sales tax. The second occurred following the 1976 audit and assessment and purportedly advised the taxpayer that the state had waived its right to collect back sales taxes. Although this latter statement was to be followed by a clarification, none was forthcoming.

The doctrine of equitable estoppel is rarely applied in cases involving a governmental entity, and then only to avoid manifest injustice. Bartlett & Co. Grain v. Director of Revenue, 649 S.W.2d 220, 224 (Mo.1983). Under the facts presented by the taxpayer, no manifest injustice has been demonstrated.

The incidence of taxation is determined by law, and the Director of Revenue and subordinates have no power to vary the force of the statutes. St. Louis Country Club v. Administrative Hearing Commission, 657 S.W.2d at 616. Moreover, statements made by a Revenue employee in 1967 cannot bind future directors of the Department nor limit the state’s right to collect taxes properly owing. Id.

Later statements made by another Revenue employee sometime after the 1976 audit and assessment do not serve as absolution from the taxpayer’s tax liability. That employee indicated an anticipated change of administration and that his position with the Department was uncertain. He also advised that his statement concerning a possible waiver needed clarification from Jefferson City—something which was never forthcoming. His counsel also specifically advised the taxpayer that the state was “going to start holding him responsible for the tax, and that he probably was going to have to be faced with that.” The taxpayer therefore was placed on notice of his possible tax liability. Under these circumstances, estoppel is inappropriate.

The taxpayer argues that there should be no § 144.250.1, RSMo 1978 penalties for his failure or neglect to file tax returns. For this argument he relies on Lora v. Director of Revenue, 618 S.W.2d 630 (Mo.1981), a case in which a taxpayer was relieved of paying penalties after good faith reliance on long standing Revenue Department interpretations, recently changed. But Lora is distinguishable. The taxpayer here was audited in 1976 and received assessments for April 1, 1974 through March 31, 1976. He was then on notice of his tax liability but took no action despite advice of counsel that he “should prepare himself.” The assessment in issue covers a period commencing January 1, 1976. Because the taxpayer had received the earlier notice of assessment plus advice of counsel of possible tax collection action, it is not good faith to now claim unawareness.

The taxpayer is liable for penalties assessed.

Closely related to the above analysis is the taxpayer’s final point that the Department of Revenue’s assessment is invalid because of the expiration of the two year statute of limitations.

The Sales Tax Act provides its own statute of limitations. Section 144.220, RSMo 1978, states in pertinent part:

Except in the case of a fraudulent return, or neglect or refusal to make a return, every notice of additional amount proposed to be assessed hereunder shall be mailed to the person within two years after the return was filed or was required to be filed.

The assessment made by the Department of Revenue for unpaid sales taxes for the period January 1, 1976 through December 31, 1979 was not forwarded to the petitioner until September 1980. Relying upon § 144.220, the taxpayer contends that he is not liable for taxes assessed prior to September 1978.

As noted previously, the taxpayer in this case failed to take any action after the 1976 assessment. When a taxpayer neglects or refuses to file returns, as occurred here, the statute of limitations is tolled, and the Director of Revenue may assess sales tax beyond the two year limitation. Lora v. Director of Revenue, 618 S.W.2d at 634.

The decision of the Administrative Hearing Commission is supported by competent and substantial evidence and is affirmed.

RENDLEN, C.J., and HIGGINS, BILLINGS, BLACKMAR and DONNELLY, JJ„ concur.

GUNN, J., concurs in separate opinion filed.

WELLIYER, J., dissents in separate opinion filed.

GUNN, Judge,

concurring.

The dissent filed in this case suggests that the majority holds something other than what was intended. Therefore, this particularly unusual device of a concurring opinion is utilized to clear any murk.

First, the dissent asserts that the only basis for tolling the two year statute of limitations proclaimed in § 144.220, RSMo 1978 is for a fraudulent tax return; and as there is no evidence of fraud, the majority is in error in not applying the limitation.

But the majority opinion never professes that the taxpayer was guilty of fraud. Section 144.220, RSMo 1974, as referred to in the majority specifically provides an exception to the two year statute of limitations in instances of “neglect or refusal to make a [tax] return.” As stated in the majority, it was the taxpayer’s neglect and refusal to make his return that provided the necessary fulcrum to lift the statute of limitations for assessment of the back taxes in this case. Fraud has nothing to do with the majority opinion’s lifting of the limitations provisions of § 144.220, RSMo 1974.

Second, the dissent asserts that the taxpayer is a victim of “bureaucratic bungling,” and that he should not be required to pay sales tax because his counsel failed to specifically advise him of his legal obligation to do so. But as described by the dissent, the taxpayer is an experienced “businessman with several business interests and who pays sales taxes on all of his ... businesses.” And the taxpayer was warned by his counsel that “he should prepare himself for it [the collection of taxes] unless he wanted a court battle.” That statement should have been sufficient tocsin to forewarn a seasoned entrepreneur of the obligation to pay tax, or appeal, when faced with assessments on two separate occasions. His attorney’s presage could only have reiterated the existing and potential tax liability.

WELLIVER, Judge,

dissenting.

I respectfully dissent.

Appellant is not a recalcitrant crank intent on avoiding a tax clearly owed, but rather a victim of the Department of Revenue’s inability to make a definitive ruling as to whether his river boat excursions were subject to or exempt from the Missouri state sales tax. He is a businessman with several business intersts and pays sales taxes on all of his other businesses. The Department initially informed appellant’s attorney in 1967 that the business was exempt. Nine years later the Department had a change of heart without benefit of change of law and conducted an audit and assessed appellant for taxes allegedly owed on receipts for a period from April 1, 1974 through March 31, 1976. Appellant’s attorney, a highly respected lawyer, a former state Senator, and now serving as a distinguished Circuit Judge in Jackson County, the Honorable Jack E. Gant, again contácted an official of the Department of Revenue who, when reminded of the prior action of the Department, expressed the view that the State had waived its right to the tax by its earlier ruling, but attached the caveat that verification from Jefferson City would be required.

The principal opinion stresses the fact that appellant “took no further action, nor did he appeal the 1974-76 assessment.” Far more significant I would suggest is the absence of evidence in the record that the Department ever made any further attempt to collect the allegedly assessed 1974-76 tax. The principal opinion continues: “Neither did he file tax returns or collect sales tax. This inaction was contrary to his counsel’s advice to prepare himself in order to avoid legal dispute, for it appeared that payment of sales tax would be sought.” Fairly stated, Jack Gant told his client to prepare himself for the Department’s continued efforts in trying to collect a tax, but there is not one line of testimony that attorney Gant ever suggested to appellant that he was legally obligated to collect or pay sales tax.

It was not until four years later that the Department again without benefit of change of law audited appellant’s books and assessed tax for the period of January 1, 1976 through December 31, 1979.

The Sales Tax Act provides its own Statute of Limitations, Section 144.220, RSMo 1978. It is a plain simple two year statute of limitations, except in cases of fraud. The record before us is totally devoid of evidence of fraud of any kind.

Neither the principal opinion’s reliance on Jack Gant’s suggestion that his client “should prepare himself” nor its conclusion that “because the taxpayer had received the earlier notice of assessment plus advice of counsel of possible tax collection action, it is not now good faith (for the taxpayer) to claim unawareness,” is proof of any type of fraud on the part of the appellant. The state has no claims to either tax or penalty for the years of 1976 and 1977 nor to a penalty for the years of 1978 and 1979.

This case is but another example of the Department’s imposition of tax by re-interpretation of existing tax laws. It is a classic example of bureaucratic bungling of the worst kind. Lora v. Director of Revenue, 618 S.W.2d 630 (1981), is not distinguishable from this case but rather mandates the aforementioned result.

On these facts, I also would reverse the case as to all taxes and penalties for 1976-79 and would deal with 1980 and following when and if required to do so. We can substantially improve the business climate of our state and the confidence of our taxpayers by leaving the imposition of taxes to the legislature.

      . In any event, the constitutional issues in City of St. Louis v. Streckfus, 505 S.W.2d 70 (Mo. banc 1974), appeal dismissed, 419 U.S. 810, 95 S.Ct. 24, 42 L.Ed.2d 37 (1974), do not apply to this case, as no constitutional challenge is raised under the Commerce Clause, U.S. Const, art. I, § 8. The taxpayer’s claimed exemption is purely statutory by virtue of § 144.030.1, RSMo Cum.Supp.1984.
      Seemingly, Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28, 68 S.Ct. 358, 92 L.Ed. 455 (1948), referred to in Streckfus, would have some pertinence to this case. In Bob-Lo, a round trip by a boat on the Detroit River was found to constitute transportation and foreign commerce, exempt from local taxation. But unlike this case, the trip in Bob-Lo involved a scheduled stop at an amusement park located on an island on the Canadian side of the river. Consequently, the object of the vessel’s use in Bob-Lo was to provide transportation, vis-a-vis entertainment, which is the purpose in this instance.

      . Now § 144.250.1, RSMo Cum.Supp.1984.

      . Now § 144.220, RSMo Cum.Supp.1984. This section now provides for a three year limitation period.

      . Now § 144.220, RSMo Cum.Supp.1984.

      . Now § 144.220, RSMo Cum.Supp.1984.

      . See King v. Mound City Industries, Inc., 665 S.W.2d 935 (Mo. banc 1984); City of Springfield v. Director of Revenue, 659 S.W.2d 782 (Mo. banc 1983); Mid-American Television Co. v. State Tax Comm'n, 652 S.W.2d 674 (Mo. banc 1983); Cities Service Gas Co. v. Administrative Hearing Comm'n, 652 S.W.2d 684 (Mo. banc 1983); Bemis Company, Inc., v. Administrative Hearing Comm'n, 652 S.W.2d 685 (Mo. banc 1983); Wells Aluminum, Inc., v. Administrative Hearing Comm’n, 652 S.W.2d 687 (Mo. banc 1983); Banquet Foods Corp. v. Administrative Hearing Comm’n, 652 S.W.2d 689 (Mo. banc 1983); Langley v. Administrative Hearing Comm’n, 649 S.W.2d 216 (Mo. banc 1983); King v. Laclede Gas Co., 648 S.W.2d 113 (Mo. banc 1983); Central Cooling & Supply Co. v. Director of Revenue, 648 S.W.2d 546 (Mo.1982); Star Service & Petroleum Co. v. Administrative Hearing Comm’n, 623 S.W.2d 237 (Mo. banc 1981).


author: GUNN, Judge. WELLIVER, Judge BILLINGS, Judge, BLACKMAR, Judge,

text:
    CITY OF CABOOL, Missouri, Plaintiff-respondent, v. MISSOURI STATE BOARD OF MEDIATION, Defendant-appellant.
    No. 66270.
    Supreme Court of Missouri, En Banc.
    April 30, 1985.

      John Ashcroft, Atty. Gen., Mark Siedlik, Carl S. Yendes, Asst. Attys. Gen., Jefferson City, for defendant-appellant.
    Donald W. Jones, Springfield, John Al-pers, Cabool, for plaintiff-respondent.
    Ronald C. Gladney, Clayton, for amicus curiae Mo. State Labor Council.
   GUNN, Judge.

This is a public sector labor law ease. The Missouri State Board of Mediation (Board) certified the International Brotherhood of Electrical Workers (IBEW) as exclusive bargaining representative for certain employees of the City of Cabool. The circuit court reversed the Board, but on further appeal, the Missouri Court of Appeals reinstated the Board’s ruling. We ordered transfer of the case to this Court under Mo. Const, art. V, § 10 and also find, as did the Mediation Board, that the IBEW should be certified as bargaining representative for certain employees of the City of Cabool.

The primary issues for consideration concern the proper scope of review of the Board’s decision and the composition of the bargaining unit with particular reference to so-called supervisors.

This old chestnut is jaded and sere from its many years of existence. The germ of this controversy was planted in 1967, when the IBEW held its first meeting with city employees, hoping eventually to become their exclusive bargaining representative. Subsequent disciplinary action by the city against employees for union activities led to State ex rel. Missey v. City of Cabool, 441 S.W.2d 35 (Mo.1969), which upheld, inter alia, the “meet and confer” dialectical provisions of the Public Sector Labor Law, §§ 105.500-.530, RSMo Cum.Supp.1967 (now RSMo 1978). At that time it seemed as though the matter might be safely interred, but it resolutely continues to periodically resurrect. From the time of Missey, indecisive skirmishing between the city, its employees and the IBEW continued until August 1977 when the IBEW petitioned the Board to certify it as the exclusive bargaining representative for city employees and to determine the appropriate bargaining unit.

After a hearing, the Board determined that the appropriate bargaining unit would consist of all employees within the following departments: electrical, parks and pool, water and sewer, trash, mechanical, and clerical. Excluded from the unit were the city administrator, the city clerk, all temporary employees hired under federal grants, all police and fire personnel and a city superintendent who supervised the streets, parks, water and mechanical departments. The bargaining unit, containing eleven employees, voted six to five on the adoption of IBEW as exclusive bargaining representative.

The city appealed the Board’s decision to the circuit court, challenging the composition of the bargaining unit and the participation in the case of an officer of the IBEW as a member of the Board. The circuit court reversed on the basis of the inclusion of an electrical department head within the bargaining unit and by reason of the union officer-board member’s participation in the proceeding. On further appeal, the Southern District ordered the Board’s decision reinstated.

Preliminarily, we observe that an appellate court sitting in review of an administrative agency reviews the findings and decision of the agency and not the judgment of the circuit court. Evangelical Retirement Homes of Greater St. Louis, Inc. v. State Tax Commission, 669 S.W.2d 548, 552 (Mo. banc 1984). Therefore, the city’s challenge to the Board member’s participation in the proceeding is properly addressed to the lawfulness of the Board’s action. See § 536.140.2, RSMo 1978; Evangelical, 669 S.W.2d at 552.

The particulars of the city’s challenge are that Robert Missey served as both a member of the Board and an officer of the IBEW at the time the petition for certification was filed. The city also notes that Missey signed the petition on behalf of the IBEW. As a result, the city raises the two-fold allegation that Missey’s conduct violated the proscription of Section 105.480, RSMo 1969 (repealed, Laws 1978, H.B. 1610, p. 246) and that it created an “appearance of impropriety.”

The short answer to the first contention is that the statute on which the city relies has been repealed. However, even if the statute were in effect, its design is to prohibit an officer of an agency from appearing before that agency, or receiving fees for services, in relation to a case in which there is personal participation on behalf of the agency. There is no suggestion by the city that Missey personally participated in this case on behalf of the Board. To the contrary, the hearing officer for the Board stated his understanding at the time of the hearing that Missey would not confer with the Board in any way concerning the case, and no evidence of his participation has been offered by the city at any stage of this proceeding.

The general argument that Missey’s conduct created an “appearance of impropriety” is also without merit. This presumes that a Board member, being an official empowered to make decisions relative to the labor-management nexus, must be invested (both actually and apparently) with the same impartiality required of judicial officers. However, the explicitly partisan composition of the Board belies any such premise. Section 295.030, RSMo 1978, mandates that the Bord be comprised of two union members as well as two employers or employers’-association members, in addition to one who is neither an employee nor an employer. This composition ensures not impartiality on an individual basis, but rather impartiality based on a consensus of partisans. The participation of Board members in issue-oriented, sectarian activities is thus, presumably, not to be merely tolerated but expected.

The city’s second attack on the Board’s decision is directed at the inclusion of the “department head” or “section chief” of the city’s electrical department in the bargaining unit. This charge is based on the holding in Golden Valley Memorial Hospital District v. State Board of Mediation, 559 S.W.2d 581, 583 (Mo.App.1977), that the term “employee” as it is used in the Public Sector Labor Law, §§ 105.500-.530, RSMo 1978, “excludes those persons whose duties involve acting directly or indirectly in the interest of their employer in relation to another employee.” Id., quoting Connecticut State Board of Labor Relations v. Greenwich Taxi Co., 151 Conn. 573, 200 A.2d 712, 714 (1964). The city construes this holding to exclude “supervisors” from the scope of covered employees under the act. The Board evidently concurs with this conclusion and has developed a set of factors by which it determines whether an employee is an excluded supervisor. The Board concluded, however, that the electrical department employee was not a supervisor. The parties therefore join issue on the scope of review applicable to the Board’s decision. The Board contends that its decision must be upheld as based upon competent and substantial evidence upon the whole record, § 536.140.2, RSMo 1978, and the city maintains that the “competent and substantial evidence” test does not totally circumscribe a reviewing court’s inquiry into the bases for agency determinations of fact.

However, the “competent and substantial evidence” test does not apply to circumstances in which the agency’s determination involves only the application of the law to the facts. § 536.140.3. In such circumstances, the reviewing “court may weigh the evidence for itself and determine the facts accordingly.... In making such determination the court shall give due weight to the opportunity of the agency to observe the witnesses and to the expertness and experience of the particular agency.” Id.; Evangelical, 669 S.W.2d at 552. The question implicated in the present case — whether the statute excludes supervisors from its ambit — is a question of law. Such questions are reserved for the independent judgment of the reviewing court. King v. Laclede Gas Company, 648 S.W.2d 113, 114 (Mo. banc 1983). The application of the resulting principle of law to the facts of this case is a matter involving only the application of the law to the facts, such as is contemplated by § 536.140.3.

With regard to the principles of law involved in the present case, the city suggests, somewhat obliquely, that federal law provides authority for the proposition that supervisors are not within the ambit of the term “employee” as it is used in the Missouri Public Sector Labor Law. It should be noted, however, that the National Labor Relations Act, 29 U.S.C. § 152(3), (11) (1982), specifically excludes supervisors from the definition of the term “employee.” The Missouri Public Sector Labor Law, by contrast, contains no such exclusion. See §§ 105.500, .510, RSMo 1978. Furthermore, the N.L.R.A. as originally enacted contained no such exclusion, and the United States Supreme Court refused to imply such an exclusion in the face of the plain and ordinary meaning of the term “employee.” Packard Motor Car Co. v. National Labor Relations Board, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947). It was as a direct response to this decision that Congress enacted the supervisory exclusion for federal labor law. Metropolitan Edison Co. v. National Labor Relations Board, 460 U.S. 693, 704 n. 9, 103 S.Ct. 1467, 1475 n. 9, 75 L.Ed.2d 387 (1983).

This contrast between the federal and the Missouri statutes evokes a question as to whether supervisors are necessarily prevented from belonging to a bargaining unit under the Missouri scheme. However, this question need not be addressed in the present case, as the record clearly demonstrates that the questioned employee did not possess “supervisory” authority, either in the ordinary sense of that term or as it is defined by the Board’s delineated factors. See supra, n. 2.

The record reveals that the employee in question was one of two employees of the department, who worked side by side. The employee had formerly been denominated the “superintendent” of the department and had communicated directly to the city council his recommendations regarding both personnel matters and suggested projects. Several months prior to the hearing, however, the city employed an administrator who was charged expressly with the authority to hire, fire, promote, set wages for, and generally supervise the employees of the city, along with the power to overrule any action taken by a department head. It follows that any supervisory authority held by the employee prior to the advent of the city administrator is immaterial, unless the evidence shows that this authority continued under the new regime. To this end, the city relies heavily on the testimony of the administrator to demonstrate his policy of delegation of authority on supervisory matters. However, the administrator’s own testimony clearly shows that the ultimate authority vested in him under the ordinance was scrupulously reserved by him, and that the claimed delegations amounted to no more than solicitous autocracy with the subjective satisfaction of the administrator as the final measure. Any claimed supervisory status of the employee, whether based on actual authority or his cognomen as “department head,” is therefore no more than a sinecure.

The employee in question is clearly not a supervisor. Thus, the Board was justified in refusing to exclude him from the bargaining unit under some supervisor exclusion. No other postulation has been raised by the city to justify the exclusion of the employee from the bargaining unit.

The judgment of the circuit court must therefore be reversed and remanded with directions to reinstate the decision of the State Board of Mediation.

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

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

BILLINGS and BLACKMAR, JJ., concur in separate opinions filed.

WELLIVER, Judge

concurring in result.

I agree with the principal opinion that the issues regarding the composition of a bargaining unit involve substantial questions of both law and fact and that based upon the facts herein, the so-called “Electrical Superintendent” of the two-man electrical department is as a matter of fact correctly included in the bargaining unit.

I deem it both unnecessary and inappropriate that the principal opinion calls into question the Board’s long-standing practice of excluding supervisory employees from bargaining units. In my opinion, such a policy was contemplated by the Legislature when it enacted the Public Sector Labor Law and is necessary if the State and its agencies and subdivisions are to effectively manage personnel. I believe Judge Tur-nage correctly stated the law in this State in Golden Valley Memorial Hospital v. Missouri State Board of Mediation, 559 S.W.2d 581 (Mo.App.1977) when he rejected the view the majority suggests today by way of dictum:

[T]he term employee cannot be literally read to include every person on the payroll of a public body. As stated in City of Milwaukee v. Wisconsin Employ. Rel. Com., 43 Wis.2d 596, 168 N.W.2d 809, 812 (1969): ‘someone has to sit on the city’s side of the bargaining table.’

Id. at 583.

I feel compelled to comment on one other aspect of this case. For sometime I have been urging the Court to adopt a rule regulating the participation of amicus which would apply to all equally. Sermchief v. Gonzales, 660 S.W.2d 683, 687 (Mo. banc 1983); State ex rel. Chandra v. Sprinkle, 678 S.W.2d 804 (Mo. banc 1984) (Welliver, J., dissenting). Counsel for the Missouri State Labor Council, a non-party, was permitted by the Court not only “to intervene as amicus” and file briefs, but also to appear and argue in this case. In Fowler v. Park Corporation, 673 S.W.2d 749 (Mo. banc 1984), the Court summarily denied some fifteen associations and business entitles of Missouri the right even to file suggestions as amicus curiae in a matter directly affecting all of their industries. Be it labor or industry, both deserve the same and equal treatment in our Court. Such inconsistency in dealing with requests to appear as amici invites accusations that the Court favors labor organizations over business interests. I urge the adoption of a rule regulating the participation of ami-cus curiae.

BILLINGS, Judge,

concurring.

My initial vote was and continues to be one of concurrence in the principal opinion. However, I write to demonstrate there has been no “inconsistency” in the Court’s ami-cus curiae procedure as suggested in Judge Welliver’s separate opinion concurring in result.

First of all, I would limit amicus curiae procedure drastically because in the main most amicus briefs are repetitous of the briefs filed by the real parties in interest and too often are merely vehicles for propaganda efforts. Secondly, it appears that amicus curiae participation is ordinarily limited to the filing of briefs — before oral argument and submission of the case for decision. Black’s Law Dictionary (5th ed. 1979); see, e.g., U.S. Supreme Court Rule 36.

As he did in his criticism of the Court in the Chandra case concerning the amicus situation, Judge Welliver again fails to acknowledge that both in Chandra and this case, the amicus curiae briefs were in the case before the case was argued, submitted and decided — contrary to what happened in Fowler. The Fowler case had not only been briefed, argued and submitted for decision by the real parties in interest but the Court’s decision had been handed down before non-parties sought permission to file amicus briefs.

I submit there is a vast and obvious difference between amicus curiae briefs before decision, as here, as opposed to what happened in the Fowler case after decision.

BLACKMAR, Judge,

concurring.

I concur in the principal opinion, and also join in Judge Billings’ opinion, in which he explains the denial of extra time to file amicus briefs in Fowler v. Park Corporation, 673 S.W.2d 749 (Mo. banc 1984) in a way sufficient to satisfy any fair-minded person. I write separately because of my perspective as the author of Fowler.

Fowler was argued January 26,1984. A draft opinion was prepared and circulated but failed of adoption. The case was reassigned to me and I circulated an opinion for consideration at the June Conference. The day before that Conference Judge Welliver circulated a dissent, in which he suggested that the opinion might have adverse effects on lenders on chattel security and on the chattel leasing industry. I considered his opinion and made some changes in my opinion to make it clear that Fowler ruled only a particular fact situation. My opinion carried by 4 to 3 vote, with three separate dissents.

In accordance with our practice, it fell to me to report to the July Conference on the motion for rehearing in Fowler. The motion papers came to my attention on my return to Jefferson City July 10, 1984. At that time I noted that motions for leave to file amicus briefs had been denied by the Acting Chief Justice on July 5, 1984. I checked with the Clerk’s Office to see if the proposed briefs had been tendered with the motions and found that they had not been. It appeared from the motion papers that the would-be amici were apparently concerned about the point raised in Judge Welliver’s opinion, which is a matter that I had considered and discussed with the other Judges at the June Conference. I was satisfied that the proposed amicus briefs would not demonstrate anything that was “overlooked” or “misinterpreted.” The defendant-appellant’s motions and suggestions were thorough and detailed. I studied them carefully and determined that they raised nothing new.

I reported orally at the July Conference, recommending that the motion for rehearing be overruled. No Judge expressed a desire for extended discussion. The motion was overruled without dissent.

The Court’s policy has been to allow ami-cus briefs freely before submission. I agree with this policy. Judge Welliver and Judge Billings would apparently be more restrictive. Since I have been on the Court, however, I know of no instance in which the Court delayed ruling on a motion for rehearing to permit non-parties to file briefs.

There was no denial of “the same and equal treatment” in the handling of the Fowler case. There was no invitation of “accusation that the Court favors labor organizations over business interests.”

Judge Welliver also is less than candid in his statement that a non-party was permitted to appear and argue in the present case. By the Court’s established practice an amicus may argue only (1) within the consent of the supported party and (2) only for such time as the supported party is willing to yield. The amicus in this case was treated as any other. The amici in Fowler had not appeared at the time the case was argued.

I do not know what purpose Judge Wel-liver has in continuing to hold the issue of amicus briefs in Fowler in a false light. Inasmuch as he has spread his views in the Court’s official reports, response in the same medium is in order.

      . The pertinent portion of former § 105.480.1 stated:
      No person who has served as an officer or employee of an agency shall within a period of two years after the termination of the service or employment appear before the agency or receive compensation for any services rendered on behalf of any person, firm, corporation or association in relation to any case, proceeding or application with respect to which the person was directly concerned and in which he personally participated during the period of his service or employment.

      .The Board’s qualifying factors for exclusion as a supervisor are:
      1. The authority to effectively recommend the hiring, promotion, transfer, discipline or discharge of employees.
      2. The authority to direct and assign the work force.
      3. The number of employees supervised, and the number of other persons exercising greater, similar or lesser authority over the same employees.
      4. The level of pay, including an evaluation of whether the supervisor is paid for his skill or for his supervision of employees.
      5. Whether the supervisor is primarily supervising an activity or is primarily supervising employees.
      6. Whether the supervisor is a working supervisor or whether he spends a substantial majority of his time supervising employees.
      7. The amount of independent judgment and discretion exercised in the supervision of employees.

      . Many states, unlike Missouri, have excluded supervisors from the definition of “employees" under their public sector labor statutes. Annot., 96 A.L.R.3d 723 (1979); L. Shaw and R. Clark, Determination of Appropriate Bargaining Units in the Public Sector: Legal and Practical Problems, 51 Ore.L.Rev. 152 (1971).

      . See Packard, supra; Port Authority of Allegheny County v. Amalgamated Transit Union, 430 Pa. 514, 243 A.2d 433, 436 (1968) (Musmanno, J., concurring) (requiring specific statutory exemption for so-called supervisory employees); cf. City of Grand Island v. American Federation of State, County & Municipal Employees, 186 Neb. 711, 185 N.W.2d 860, 864 (1971).

      . The city has not challenged, at any stage of this proceeding, the existence of a sufficient "community of interest,” § 105.500(1), between the employee in question and the other employees included in the bargaining unit, and this Court forbears treatment of that point. See § 512.160.1, RSMo 1978 (no allegations of error to be considered which have not been presented or decided by the trial court).

      . Missouri Automobile Dealers Association; the Car and Truck Rental and Leasing Association of Missouri; Mercantile Bancorporation, Inc.; Centerre Bancorporation, Inc.; Boatmen’s Bancshares, Inc.; Terminal Railroad Association of St. Louis; Atchison, Topeka, and Santa Fe Railway; Burlington Northern Railroad; Chicago and North Western Transportation Co.; Chicago, Milwaukee, St. Paul and Pacific Railroad; Illinois Central Gulf Railroad; Kansas City Southern Railway Co.; Missouri-Kansas-Texas Railroad; Missouri Pacific Railroad Co.; Norfolk and Western Railway Co.; St. Louis Southwestern Railway Co.; and Kansas City Terminal Railway Co.

      . See discussion, “The Flag,” 40 Journal of The Missouri Bar 280 (July — August, 1984).

      . The second paragraph of Rule 84.17 reads as follows:
      The purpose of a motion for rehearing is to call attention to material matters of law or fact overlooked or misinterpreted by the court, as shown by its opinion. Reargument of issues determined by the opinion will be disregarded.

      .Even dissenting judges do not ordinarily vote to grant a motion for rehearing unless a judge who concurred in the opinion expresses a change of position.


author: KELLY, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Marsha Christine FREDRICKSON, Defendant-Appellant.
    No. 47065.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 4, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 1985.
    Case Transferred to Supreme Court Feb. 28, 1985.
    Case Retransferred to Court of Appeals May 17, 1985.
    Original Opinion Reinstated May 28, 1985.

      Ronald Joel Kaden, St. Louis, for defendant-appellant.
    Kristie Lynne Green, Bruce Farmer, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   KELLY, Presiding Judge.

Appellant was charged with knowingly promoting prostitution in the second degree, § 567.060, RSMo 1978. A jury found her guilty and appellant was sentenced to 60 days in the county jail and fined $2,500.00.

On September 29, 1981, Detectives Sa-vetz and Gilyon of the St. Louis County Police Department were at their office in Clayton when they received a visit from a confidential informant, identified as Tim Ayers. Ayers informed Savetz of an “out-call” service operating in St. Louis County where the services of a prostitute could be obtained. A phone call was made to the service, operated by appellant, from the police headquarters. This call was recorded and played to the jury. A meeting was arranged with two prostitutes for that evening at the Ramada Inn, located at 6926 South Lindberg in St. Louis County. A price of $200.00 per girl for the evening was agreed to. A transcript of a tape recording of Ayers’ call was made and played for the jury.

Detectives Savetz and Gilyon went to the Ramada Inn at approximately 10:00 p.m. that night and took along some props, including clothing, suitcases, beer, etc. Mr. Ayers, the informant, arrived a few minutes later. The appellant and another female, Sherry Richardson, arrived at approximately 12:30 a.m. Informant left approximately 30 minutes later.

After some small talk, appellant initiated a conversation about sex, indicating to Detective Savetz that “we better take care of business.” Savetz asked her what she meant and appellant said: “The money, sweetheart. Let’s take care of the money.” Savetz indicated that Mr. Ayers had related a price of $150.00 per girl. Appellant said: “No, that’s not correct. We agreed on $200.00 per girl for the rest of the evening.” Appellant, however, agreed to take the lesser sum because she was late in arriving at the hotel.

Detective Savetz then asked her what they would get for their money. Appellant replied that they would receive intercourse between both girls for each man and, if desired, a swap of partners. Appellant also replied that they would supply some additional entertainment, such as a view of two women engaged in sexual intercourse.

Detective Savetz then asked Sherry Richardson if appellant was her boss and Miss Richardson indicated that appellant was, in fact, her employer. Miss Richardson said she had worked for appellant for about two months. Detective Savetz then gave appellant $300.00 in marked twenty-dollar bills.

Appellant had previously removed her nylons and had pulled her dress up around her waist. Appellant was reclining back on the bed and was not wearing any underpants at the time. Appellant asked Detective Savetz to “stick the money in her mailbox.” Appellant then took the money and began rubbing it around on her crotch. Appellant then gave the money to Sherry Richardson who put it in her purse.

At this time, Detective Savetz retrieved his badge and placed appellant and Sherry Richardson under arrest. The money was eventually recovered at the county hospital from a nurse who was given the money by Sherry Richardson when she informed her that the police had requested a search of her body cavities.

Appellant denied that the girls went to the Ramada Inn for the purpose of performing acts of prostitution. She testified that she owned and operated a massage parlor at 127 Fiedler Lane in Jefferson County. She testified as to the various types of massage and other health services she provided. She also testified that her understanding of the phone call she had with Tim Ayers was that she was to help entertain him and his friend and that the appointment was to be for escort service, dancing and dining.

On appeal the appellant challenges the sufficiency of the evidence claiming that as a matter of law the appellant cannot be convicted of promoting prostitution in the second degree because only one other prostitute, other than herself, was involved in the prostitution activity.

Appellant was convicted of Promoting Prostitution in the Second Degree, § 567.-060. The statute provides:

1. A person commits the crime of promoting prostitution in the second degree if he knowingly promotes prostitution by managing, supervising, controlling or owning, either alone or in association with others, a house of prostitution or a prostitution business or enterprise involving prostitution activity by two or more prostitutes.
2. Promoting prostitution in the second degree is a class C felony.

Reference must necessarily be made to § 567.010 to determine the meaning of “promoting prostitution,” as that term is used in § 567.060.

Section 567.010 contains definitions of the terms used in the Chapter, and provides that “promoting prostitution” means:

1. “Promoting prostitution”, a person “promotes prostitution” if, acting other than as a prostitute or a patron of a prostitute, he knowingly
(a) Causes or aids a person to commit or engage in prostitution; or
(b) Procures or solicits patrons for prostitution; or
(c) Provides persons or premises for prostitution purposes; or
(d) Operates or assists in the operation of a house of prostitution or a prostitution enterprise; or
(e) Accepts or receives or agrees to accept or receive something of value pursuant to an agreement or understanding with any person whereby he participates or is to participate in proceeds of prostitution activity; or
(f) Engages in any conduct designed to institute, aid or facilitate an act or enterprise of prostitution; ... (emphasis ours).

In comments to the Code of § 567.010, the following is found in Vol. 40A V.A. M.S., p. 792:

The one term, “promoting prostitution,” eliminates the need for separate statutes on procuring, pimping, transporting for purpose of prostitution, keeping a house of prostitution or leasing premises for such activity, profiting from prostitution, and includes any other “conduct designed to institute, aid or facilitate an act or enterprise of prostitution” as well as “profiting from prostitution.” As in the case of the historical distinctions drawn between larceny, stealing by deceit, embezzlement and false pretenses, which no longer have criminological significance in Missouri, the statutory distinction between “advancing” and “profiting” from prostitution has no significance.
Note that subsection (1) excludes prostitutes and patrons because their conduct is specifically covered in Sections 567.020 and 567.030 ...

Our standard of review in this case requires that we view the evidence in the light most favorable to the state and accept all legitimate inferences fairly deducible therefrom tending to support the verdict and to reject contrary and contradictory evidence. State v. Charity, 637 S.W.2d 319, 321[4] (Mo.App.1982). However, this case involves the interpretation of a criminal statute, specifically Chapter 567. The long standing rule in Missouri is that criminal statutes must be construed strictly against the state and liberally in favor of the defendant. State v. Treadway, 558 S.W.2d 646, 652[15] (Mo. banc 1977). Statutes defining crimes will not be interpreted as embracing any but those acts or omissions clearly described in the statute both within the letter and spirit of the law. State v. Chadeayne, 323 S.W.2d 680, 683[4] (Mo. banc 1959); State v. Pickett, 535 S.W.2d 542, 544[2] (Mo.App.1976); State v. Alderman, 500 S.W.2d 35, 36[2] (Mo.App.1973). No person may be made subject to a criminal statute by guesswork or mere implication and a criminal statute may not be held to include offenses or persons other than those clearly described and provided for within both the spirit and the letter of the statute. If there is a fair doubt whether the act charged and proved is embraced within the prohibition, that doubt must be resolved in favor of the accused. State v. Kayser, 552 S.W.2d 27, 30[4] (Mo.App.1977). The reason for this rule of strict construction is found in the tenderness and solicitude of the law for individuals and on the principle that it is the duty of the legislature, and not the courts, to define a crime and ordain its punishment. State v. Reid, 125 Mo. 43, 28 S.W. 172, 173 (1894); State v. McClary, 399 S.W.2d 597, 599[3] (Mo.App.1966).

Appellant’s claim, reduced to its simplest terms, is that the state’s evidence was that she was acting as a prostitute and therefore she cannot be charged with promoting prostitution because the definition of promoting prostitution excludes one who is also acting as a prostitute; thus, since only one other prostitute was involved in this activity, she cannot be convicted of promoting prostitution in the second degree. Due to the inherent constraints of the English language and our requirement of strict construction we are inclined to agree.

The facts of this case present a case of first impression in our state. Section 567.-060 became effective on January 1, 1979. Since that time, so far as we have been able to ascertain, no appellate court in this state has considered this question. Neither party to this appeal has cited any authority and our independent research has surfaced none.

The state, however, argues that State v. Linder, 613 S.W.2d 918, 922[2] (Mo.App.1981) supports its position. The court in Linder, at p. 922, said:

The fact that appellant had previously engaged in prostitution, a fact not conceded by appellant, does not, by construction of the applicable statutes preclude prosecution for the promoting of prostitution under § 567.050. In other words, a prostitute, if warranted by particular facts and circumstances, can, by the commission of certain acts, also be charged for the promotion of prostitution. The mere fact that the accused is a prostitute does not exclude that person from § 567.-050. (Emphasis supplied).

However, Linder was convicted under § 567.050.1(2), Promoting Prostitution in the First Degree. The essential element in a prosecution under that statute is “promoting prostitution of a person less than sixteen years old.” The fact that Linder, the mother of the young girl, had previously prostituted herself to two men and thereafter promoted the prostitution of her daughter, who was less than sixteen years of age, to the same men was immaterial.

This present case concerns the single act or transaction surrounding the procurement by the informant of two prostitutes for two undercover detectives. We are of the opinion that the legislature clearly meant to define separate crimes and punishments for prostitution and those who promote prostitution. The two roles are, in our judgment, mutually exclusive in the same transaction, and therefore the appellant cannot be charged with promoting her own prostitution because if she can be so charged, every prostitute could be charged with Second Degree Promotion for having promoted herself.

Appellant was indicted and convicted of Knowingly Promoting Prostitution in the Second Degree by managing a prostitution enterprise involving prostitution activity by two or more prostitutes at Ramada Inn, 6926 South Lindberg. Section 567.010.1 specifically excludes persons acting as a prostitute or a patron of a prostitute from the definition of those persons who may promote prostitution. The Comments to this section of the statute contain the following statement: “Note that subsection (1) excludes prostitutes and patrons because their conduct is specifically covered in Sections 567.020 and 567.030.” At most, the evidence shows that appellant may have managed a prostitution activity involving only one prostitute and that is not sufficient to sustain a conviction under § 567.060.

Appellant’s conviction is therefore reversed and she is ordered discharged.

STEWART and SNYDER, JJ., concur.

      . All statutory references are to RSMo 1978.


author: IVAN LEE HOLT, Jr., Special Judge.

text:
    In re Ex parte Christopher Shawn WALLS and Charles Lewis Walls, Respondents, v. Alvin MURRAY and Imogene Murray, Appellants.
    No. 47546.
    Missouri Court of Appeals, Eastern District, Northern Division.
    Dec. 4, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 13, 1985.
    Edward Joseph Grewach, Troy, for appellants.
    Ronald L. Boggs, St. Charles, for respondents.
   IVAN LEE HOLT, Jr., Special Judge.

Charles and Sherry Walls were married May 11, 1974. One child, Christopher Shawn Walls, was born of that marriage on May 1, 1976. The above marriage was dissolved by the Circuit Court of St. Charles County on December 16, 1977. Under the decree then Sherry was given custody of Christopher, with visitation to Charles conditioned on his not drinking any alcohol during those times.

On May 22, 1983, Sherry was killed in an automobile accident and on May 23, 1983, Charles filed a petition for a Writ of Habe-as Corpus for the custody of Christopher. The appellants, Christopher’s maternal grandparents, filed an answer raising the issues of Charles’ fitness as a parent and Christopher’s best interest. After hearing evidence, the Circuit Court of Lincoln County granted the writ and ordered appellants to deliver Christopher to his father. It is from that order appellant’s appeal.

The evidence showed that Charles had a history of alcoholism from 1963 to 1982, which contributed some to the dissolution of his three prior marriages. Also, that that contributed to a number of incidents of violence toward his wives, including his present one.

But the evidence also showed that respondent was hospitalized for alcoholism about sixteen months before the hearing and hasn’t had a drink since. Too, that his violence was never directed toward a child, and that he was devoted to Christopher. Charles and his present wife are employed at St. Joseph’s Health Center in St. Charles and have been for many years, where she is a registered nurse with special training in alcoholism. She verified Charles’s not having a drink for about a year and a half and testified that with her training, living and working with him, she would know.

Having in mind that in custody matters a fit natural parent should be given preference over those who are not, In Re Wakefield, 365 Mo. 415, 283 S.W.2d 467, and that the best interest of the child is paramount, In Re Shepler, Mo., 372 S.W.2d 87, we cannot say under the evidence heard that the trial court erred in ordering the custody of Christopher to his father, and we do not.

Affirmed.

DOWD, C.J., and CLEMENS, Senior Judge, concur.


author: PER CURIAM.

text:
    Fred RUSSELL, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. WD 36112.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.
    Joseph Henry Locascio, Sp. Public Defender, Kansas City, for movant-appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, C.J., and MANFORD and KENNEDY, JJ.
   ORDER

PER CURIAM.

This is a direct appeal from the denial of post-conviction relief sought pursuant to Rule 27.26.

Judgment affirmed. Rule 84.16(b).


author: CLARK, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Marquita BROWN, Appellant.
    No. WD 35405.
    Missouri Court of Appeals, Western District.
    Feb. 5, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.

      Bruce W. Simon, Simon & Simon, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before CLARK, P.J., and SOMERVILLE and KENNEDY, JJ.
   CLARK, Presiding Judge.

Marquita Brown was charged and convicted of the offense of stealing more than $150.00 and she was sentenced to serve a term of three years. On this appeal, she contends the judgment should be reversed and she should be discharged, first because the evidence was insufficient to support the conviction and, second because documentary evidence obtained as a product of an unlawful search and seizure was admitted over appellant’s objection. Affirmed.

Appellant’s challenge to the sufficiency of the proof made against her and the nature of the case as one dependent on circumstantial evidence require a detailed recapitulation of the facts. In so doing, we cast the evidence in the light most favorable to the state. State v. Brown, 660 S.W.2d 694, 699 (Mo. banc 1983). So defined, the evidence was as follows.

Appellant was in the employ of the City of Kansas City and was engaged in the duties of head cashier in the water department. In April, 1982, City officials became alerted to the possibility of irregularities in the water department by reason of complaints by customers who received delinquent account notices when in fact their bills had been paid. Preliminary inquiry to trace the cause of the complaints disclosed that documents were missing from the water department and an imbalance existed between recorded receipts and bank deposits. A detailed audit was then commenced.

Attention focused on the payment processing operation of the water department cashiers. The period of March 15 to March 26, 1982 was subjected to detailed audit and cash shortages ranging from $600.00 to $1243.95 were discovered on each of these dates. Randomly chosen also were the dates of August 21 and September 24, 1981. On August 21 the cash shortage was $690.30 and on September 24 the shortage was $611.51. The shortages were all in the account of the head cashier, a position occupied by appellant during the respective times.

Three cashiers were in the employ of the water department during the time in question, appellant in the position of head cashier and two assistant cashiers who worked under appellant’s supervision. It was the responsibility of the cashiers to process water bill payments as received and to credit customer accounts accordingly. Appellant prepared the daily bank deposit of payments received, including those processed by her and by the two assistant cashiers. As to the latter, they would total their receipts, consisting of cash and checks, and give them to appellant who would verify the balances. Appellant would then combine those with receipts she had processed that day and place the deposit in a bank bag to be picked up by a messenger service.

As was noted above, the existence of discrepancies first came to the attention of supervising personnel in the water department because customers who had verified payment records complained of receiving delinquency notices. Centering on this problem, the audit disclosed substantial delays between the date on which a customer’s payment was received and the date on which the account was credited with the payment. Some thirty-three accounts tabulated during the audit span of eleven days showed delays of three weeks or longer from payment clearance to account credit. According to the auditor, the combination of daily shortages and the delayed credit of large payment checks to customer accounts suggested that an embezzlement scheme known to the accounting profession as “lapping” was in progress.

In a lapping fraud, a cashier pilfers currency from payment receipts and covers the shortage by showing later payments made by other customers as credits to the pilfered accounts. This, in turn, creates a need to cover the misapplied credits and further pilferage accumulates. As more and more credits to accounts must be manipulated, the delay between the date a customer’s payment is received and the date on which that account is satisfied lengthens. The use of this scheme was confirmed by the audit of the daily bank deposits during the test period. On each day, although the total deposit agreed with the record of total receipts for the day, the deposit was composed of a larger amount of checks and a smaller amount of cash than the validating tapes showed had cleared through the cashiers’ windows.

In implementing a lapping scheme, it is necessary that the thief have access to substantial amounts of cash and also be able to arrange the credit of payments made by checks to cover the misappropriated cash. Here, only appellant had that opportunity. The assistant cashiers were allowed to maintain only a minimum cash drawer balance of $100.00 apart from such cash as came to them in account payments. Appellant, conversely, was permitted a cash balance of $5,000.00. Moreover, the assistant cashiers had no opportunity to manipulate check and cash payments because any diversion would have been immediately discovered, assuming no confederacy on the part of appellant, when appellant combined and verified the daily tallys in preparing the bank deposit. There was, however, no corresponding check to preclude appellant’s manipulation.

Further evidence adverse to appellant included the following circumstances. Audit was made of receipts on July 24, 1981, a date selected because appellant was not at work that day. There was no cash shortage. Although appellant’s salary was reflected in a bi-weekly paycheck of $819.00, regular cash deposits were made to her personal bank account in amounts from $200.00 to $500.00 as frequently as twice a week. Appellant consistently intruded upon work outside the cashier’s office in an apparent effort to gain access to mail containing large payment checks for commercial water accounts. Despite express direction to stay away from the mail room, appellant persisted in opening mail marked by the envelope color as likely to contain sizable checks of as much as $50,000.00 or $60,000.00. Of the thirty-three delayed credits to customer accounts paid by check during the audit period, all bore validation stamps indicating they were processed by appellant.

The first customer complaint about a delayed or omitted credit for an account payment made by check, the ultimate result of which was the audit described above, was given to appellant for resolution. She failed to obtain or present any explanation. When presented with these complaints, which became so numerous they created a major problem in the office, appellant became very nervous and excited. When it appeared that the audit investigation was centering on her, appellant left work without notice or explanation and never returned.

In a circumstantial evidence case, the facts and circumstances relied on to prove the guilt of the accused must be inconsistent and irreconcilable with any reasonable hypothesis of innocence. State v. Easley, 662 S.W.2d 248, 250 (Mo. banc 1983). The circumstances need not be absolutely conclusive of guilt or demonstrate impossibility of innocence and the mere existence of other possible hypotheses is not enough. State v. Mandina, 675 S.W.2d 113, 114 (Mo.App.1984). It is not necessary that the state’s proof exclude every hypothesis of innocence. State v. Brown, supra.

Appellant contends that the proof summarized above did no more than create a climate of suspicion based primarily on the testimony of the auditor who, in turn, relied on appellant’s validation stamp impression as the key item of evidence. She points out that others had access to the stamp and could well have used her stamp to process the altered transactions. Appellant argues, in effect, that all of the cashiers being suspect, the evidence was not enough to convict her.

A review of the evidence is persuasive that the circumstantial evidence against appellant was not only sufficient but was overwhelming. Appellant was the only person with access to and control over the final tabulation of payment receipts, large sums of cash and the arrangement of the bank deposits essential to perpetration and concealment of the thefts. Her interest in the mail receipt of large checks was consistent with the need of the embezzler to cover cash diversions, but inconsistent with her work and the scope of her duty. When the scheme was in the process of disclosure, appellant became nervous and excited and, without notice or explanation, she left work and did not return. She regularly made substantial deposits of cash to her personal account in amounts grossly disproportionate to her earnings.

The proof was adequate to support the finding of guilt made by the trial court. The point asserting the contrary is without merit and supplies no ground of error.

In the second point, appellant argues that the trial court erred in admitting in evidence state’s Exhibit 2 consisting of monthly statements of appellant’s checking account with United Missouri Bank. The account was in the name of appellant and her husband and the period covered by the statements was January, 1980 to April, 1982. The significance of the statements to the state’s case was their confirmation of substantial deposits to appellant’s account month by month. For example, deposits shown on the April, 1982 statement were, in part: 3/18 — $300.00; 3/18— $400.00; 3/22 — $300.00; 3/24 — $300.00; 4/2 — $300.00; 4/5 — $300.00.

Appellant moved to suppress the statements and objected to their introduction on the ground that the documents were private papers or business records immune from seizure by warrant under § 542.271, RSMo.1978. The parties are in agreement that the state first acquired the records by grand jury subpoena duces tecum issued in the course of the grand jury’s inquiry into the crime and that the subpoena and seizure were regular and proper. Appellant contends that the records were not, however, available to use in prosecution of the charge under the indictment returned by the grand jury because of the limitation of § 542.271.

The claim which appellant makes that the grand jury subpoena was used as a subterfuge to obtain the bank records for later prosecution rather than investigatory use rests entirely on the fact that the grand jury indictment was quashed and an information was substituted. The record shows no confirmation of any subterfuge from these facts. Instead, the record indicates the substitution of the indictment was a matter of agreement between counsel based on the contention by the defendant that only one continuing offense occurred. The indictment was in fourteen counts and defendant’s motion was directed to and accomplished a reduction in the charge from fourteen counts to one. The point was debatable and is not suggestive of any bad faith or artifice employed by the state as a device to obtain the records.

What appellant seems to suggest is that, the state, already having the bank records in hand, was obligated to issue another subpoena for their production before they could be used in evidence. That argument, even assuming it to be valid procedurally, can avail the appellant only if she could resist a second order for production of the records made on the bank. This she could not do because the records are bank records, not hers.

Records of a depositor’s account maintained by a bank are business records of the bank, not of the bank depositor. The depositor has no claim to the records based on ownership or possession and he therefore has no expectation of privacy associated with the records which is protected under the Fourth Amendment. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). Appellant would have no standing to challenge a subpoena to the bank for production of records of her account because the matters to be seized are the property or possessions of a third party. State v. Rellihan, 662 S.W.2d 535, 542 (Mo.App.1983). It therefore follows that any opportunity appellant would otherwise have had to oppose production of the bank records had a second subpoena issued would have been unavailing because appellant lacks standing to raise the challenge. On like grounds, appellant is in no position to object to the use of the bank records in evidence merely because the state failed to pursue a second subpoena to acquire documents it already had legitimately obtained.

The judgment and sentence are affirmed.

All concur.

      . The statute has since been amended. Laws of Mo. 1983 p. 916.